Elishah Sawyers, Pax Crate & Freight, Inc. and Robin Sawyers v. Marc 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

No. 01-14-00870-CV

FILED IN

1st COURT OF APPEALS

In the Court of Appeals HOUSTON, TEXAS

For the First District of Texas 4/8/2015 12:33:22 PM

Houston, Texas CHRISTOPHER A. PRINE

Clerk

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

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

ii

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

iii

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

iv

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

v

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

vi

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

vii

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

viii

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

ix

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

x

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

1

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.

2

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

3

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.

4

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,

5

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

6

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

7

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

8

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.

9

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

10

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

11

(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,

12

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.

13

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

14

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

15

*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

16

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

17

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

18

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

19

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 11 th 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 &

20

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

21

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

22

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").

23

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.

24

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

25

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

26

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

27

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

28

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.

29

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

30

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

31

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

32

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.)

33

(“[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.

34

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

35

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.

36

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.

37

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.

38

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).

39

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

40

| | 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, not apply to a permanent injunction which was the sole

TEXAS, Appellee. relief sought. The court further found that the injunction

was reasonably specific. The court determined that the

Prior History: [**1] On appeal from the 105th District injunction did not violate appellant's patrons' free speech

Court of Nueces County, Texas. rights when the time, place, and manner restrictions

imposed were justifiable without reference to the content

Disposition: As modified, AFFIRMED. of regulated speech and were narrowly tailored and left

ample alternative communication channels. The court

Core Terms struck the injunction provision that required patrons'

identification because it exerted an impermissible

injunction, premises, inspection, sexual activity, patrons, inhibitory effect. The court also struck the entry receipt

theater, nuisance, warning, booths, conditions, requirement as unreasonable.

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

permanent injunction, restrained, adult, unsanitary Outcome

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

trial court, peep show, restrictions, visibility, operators, The court affirmed as modified a permanent injunction

temporary in appellee's favor, because the injunction was

reasonably specific and sought protection of the public

Case Summary from a public health nuisance. The court struck

reporting, random inspection, patron entry receipt, and

identification requirements because they were not

Procedural Posture

reasonably related to the public health nuisance and

Appellant sought review of judgment which issued an had an impermissible inhibitory affect upon patrons'

injunction on the basis of a public nuisance under Tex. free speech.

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

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

District Court of Nueces County (Texas).

Civil Procedure > Appeals > Reviewability of Lower Court

Overview Decisions > Preservation for Review

Appellant adult store owner challenged an injunction HN1 The party who seeks appellate review of a

issued in appellee public health department's favor for a particular point is responsible for presenting a complete

public nuisance under Tex. Health & Safety Code Ann. record on that point because it has the burden of

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

contended that unsanitary conditions that occurred

through sexual activity on appellant's premises created Civil Procedure > Remedies > Injunctions > Permanent

a public health nuisance. The court rejected the Injunctions

argument that the injunction violated civil procedure by

failing to define what unsanitary conditions existed. The HN2 The court presumes the evidence supports

court explained the detailed explanation provision did injunctive relief.

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

Civil Procedure > Remedies > Injunctions > Permanent Civil Procedure > ... > Justiciability > Standing > General

Injunctions Overview

Constitutional Law > ... > Fundamental Freedoms >

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

Freedom of Speech > General Overview

an injunction and every restraining order shall set forth

the reasons for its issuance; shall be specific in terms; Constitutional Law > ... > Fundamental Freedoms >

shall describe in reasonable detail and not by reference Freedom of Speech > Scope

to the complaint or other document, the act or acts

sought to be restrained. HN10 In the U.S. Const. amend. I context, litigants are

permitted to challenge a statute not because their own

Civil Procedure > Remedies > Injunctions > Preliminary & rights of free expression are violated, but because of a

Temporary Injunctions judicial prediction or assumption that the statute's very

existence may cause others not before the court to

HN4 The Tex. R. Civ. P., provision compelling a detailed refrain from constitutionally protected speech or

explanation of the reason for the injunction's issuance is expression.

held only to apply to temporary injunctions or suits

requesting ancillary injunctive relief. Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Scope

Civil Procedure > Remedies > Injunctions > Permanent Constitutional Law > ... > Fundamental Freedoms > Judicial

Injunctions & Legislative Restraints > Overbreadth & Vagueness of

Legislation

HN5 A permanent injunction should not be more

comprehensive or restrictive than justified by the Constitutional Law > ... > Fundamental Freedoms > Judicial

pleadings, evidence, and usages of equity. & Legislative Restraints > Time, Place & Manner

Restrictions

Civil Procedure > Remedies > Injunctions > Permanent

HN11 Restrictions merely on the time, place, or manner

Injunctions

of exercise of free speech rights violate no constitutional

HN6 An injunction decree must be as definite, clear, protections if sufficiently justified and narrowly enough

and precise as possible and when practicable it should drawn.

inform the defendant of the acts he is restrained from

doing, without calling on him for inferences or Constitutional Law > ... > Fundamental Freedoms > Judicial

conclusions about which persons might well differ and & Legislative Restraints > Time, Place & Manner

Restrictions

without leaving anything for further hearing.

HN12 The government may impose reasonable

Public Health & Welfare Law > Healthcare > Public Health

restrictions of the time, place, or manner of protected

Security > Communicable Diseases

speech, provided restrictions are [1] justified without

HN7 "Sanitary" is defined as a condition of good order reference to the content of the regulated speech, that

and cleanliness that precludes the probability of disease they are [2] narrowly tailored to serve a significant

transmission under Tex. Health & Safety Code Ann. governmental interest, and that they [3] leave open

§341.001(7) (Vernon 1992). ample alternative channels for communication of the

information.

Civil Procedure > Remedies > Injunctions > Permanent

Injunctions 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, HN13 Where the acts of the parties are divisible

and in framing the decree, doubt should be resolved regarding lawful and unlawful conduct, an injunction

against the violator. may not be framed so broadly so as to prohibit the

enjoyment of lawful rights.

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

Overview Constitutional Law > ... > Fundamental Freedoms > Judicial

& Legislative Restraints > Time, Place & Manner

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

Page 2 of 10

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

HN14 A city has a substantial interest in regulating Criminal Law & Procedure > Search & Seizure >

sexually-oriented businesses. Warrantless Searches > General Overview

HN21 A warrantless search of commercial premises

Civil Procedure > Remedies > Injunctions > Permanent

may be reasonable when the business is closely

Injunctions

regulated. In such a case the privacy interests of the

Civil Procedure > Appeals > Standards of Review > Abuse owner are weakened and the government interest in

of Discretion regulating are higher.

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

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

Invited Errors > General Overview

Seizure > Scope of Protection

Civil Procedure > Appeals > Standards of Review > Criminal Law & Procedure > Search & Seizure >

Prejudicial Errors Expectation of Privacy

HN15 The standard of review when a trial court grants HN22 The expectation of privacy that the owner of

or denies a permanent injunction is limited to whether commercial property enjoys may, in certain

the trial court clearly abused its discretion. circumstances, be adequately protected by regulatory

schemes authorizing warrantless inspections.

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

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

Seizure > Scope of Protection

HN16 Sexual activity in public places is prohibited by

the Texas Penal Code. See Tex. Penal Code Ann. Business & Corporate Compliance > ... > Occupational

Safety & Health > Administrative Proceedings > Citations

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

& Inspections

shops open to the public are public places.

HN23 Where congress has authorized inspection but

Constitutional Law > ... > Fundamental Rights > Search & made no rules governing the procedures that inspectors

Seizure > Scope of Protection must follow, the U.S. Const. amend. IV, and its various

restrictive rules apply.

HN17 Patrons of adult video theaters have no right to

anonymity in viewing films. Constitutional Law > ... > Fundamental Rights > Search &

Seizure > Warrants

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Scope Criminal Law & Procedure > Search & Seizure > Search

Warrants > General Overview

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

HN24 The regulatory statute must perform the two

government inhibition as well as prohibition.

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

Constitutional Law > ... > Fundamental Freedoms >

the commercial premises that the search is being made

Freedom of Speech > Scope pursuant to law and has a properly defined scope, and

it must limit the discretion of the inspecting officers.

HN19 An identification requirement exerts an inhibitory

effect and therefore raises U.S. Const. amend. I issues Counsel: FOR APPELLANT: John J. Fahle, III, Attorney

comparable to those raised by direct government at Law, San Antonio, TX.

imposed prohibitions.

FOR APPELLEE: Walter D. Bryan, Assistant County

Constitutional Law > ... > Fundamental Rights > Search & Attorney, Sandra Huhn, Nueces County Attorney's

Seizure > Warrants Office, Annette L. Smith, Assistant District Attorney, Carl

Criminal Law & Procedure > Search & Seizure > Search Lewis, County Attorney, Corpus Christi, TX.

Warrants > General Overview

Judges: Before Chief Justice Seerden and Justices

HN20 A warrant is generally required for authorities to Dorsey and Hinojosa. Opinion by Justice Dorsey.

search portions of a commercial enterprise that are not

open to the public. Opinion by: J. BONNER DORSEY

Page 3 of 10

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

Opinion premises. In addition to provisions requiring a general

increase in lighting throughout the establishment, the

[*248] OPINION order required verbal and written notices and posted

signs warning all who entered that sexual activity was

Opinion by Justice Dorsey strictly forbidden within. The trial court ordered that any

person desiring entry into a booth or the theater must

This action was initiated by the Nueces County Attorney sign an individualized written warning which must

at the behest of the Nueces County Public Health include their printed name, phone number, address,

Department against Adust Video, appellant, for and driver's license number. Adust is required to

violations of the Texas Health and Safety Code. 1 maintain the original of these receipts for random,

Following the issuance of a temporary restraining order warrantless inspection by the County. The management

and an agreed temporary injunction, the County sought must refuse entry to the booths or theater to any person

and received a permanent injunction. The trial court refusing to sign and, if they enter anyway, must call the

found a public health nuisance existed and issued an police to report the trespass. "Sexual activity," when

injunction which, among other things, prohibits "sexual discovered, must be halted and reported to the police.

activity" on the Adust Video premises. Adust appeals by Adust was also required to modify the building so that

three points of error, challenging the lack of specificity of the staff would "have a clear view at all times of all

the findings of fact, the injunction's failure to afford events occurring within the premises." If the court's

notice of what specific acts it prohibits, and violation of intentions were [**4] in any way unclear, the order went

appellant's First Amendment right to free speech. on to permanently enjoin Adust from permitting sexual

activity within its premises by any person; from

[**2] As there is no statement of facts, we rely on the maintaining an unsanitary condition; from tolerating a

parties' briefs for the applicable facts. Adust Video owns nuisance; from refusing to comply with the injunction; or

and operates an adult book and video store in Nueces from refusing to consent to random warrantless

County. In addition to displays of adult literature and inspections by the State.

video tapes for sale and rent, the store also offered its

patrons eight private, coin-operated viewing booths and Our review of appellant's arguments is seriously limited

a sixteen-seat theater for on-site screening of adult because there is no statement of facts. See Brockette v.

movies. During December 1994, Nina Sisley, an Sosa, 675 S.W.2d 807, 809 (Tex. App.--Corpus Christi

inspector for the county heath agency, twice inspected 1984, no writ). HN1 The party who seeks appellate

appellant's business premises and, on both occasions, review of a particular point is responsible for presenting

discovered conditions she described as "unsanitary." a complete record on that point because it has the

Specifically, Sisley found urine and seminal fluid on the burden of proving error. Simon v. York Crane & Rigging

seats, floor, and walls of the restroom, booths, and Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); Brockette,

theater. The County asserts these conditions create a 675 S.W.2d at 809. HN2 We presume the evidence

high risk for the transmission of diseases, including supports injunctive relief.

sexually transmitted diseases such as syphilis,

gonorrhea, and AIDS. I. THE RULES GOVERNING INJUNCTIONS

The health department notified Adust of its findings and In its first point of error, Adust contends the trial court's

afforded Adust an opportunity to clean up the premises. order violates the rules of civil procedure because it

The County concluded Adust made no effort to correct does not define what unsanitary conditions exist on

these conditions so, pursuant to health and safety code appellant's premises.

sections 341.012 and 343.013, sought and obtained a

temporary restraining order, followed by [**3] a HN3 Rule of civil procedure 683 provides:

temporary [*249] injunction, and finally, after a trial

before the court, a permanent injunction. Every order granting an injunction and every restraining

order shall set forth the reasons [**5] for its issuance;

The trial court's order, in the name of abating a public shall be specific in terms; shall describe in reasonable

health nuisance, enjoined "sexual activity" on Adust's detail and not by reference to the complaint or other

1

TEX. HEALTH & SAFETY CODE ANN. §§ 341, 343 (Vernon 1992 & Supp. 1999).

Page 4 of 10

996 S.W.2d 245, *249; 1999 Tex. App. LEXIS 3790, **5

document, the act or acts sought to be restrained . . . . health nuisance. Specifically, the trial court found that

Adust permitted its patrons to engage in sexual activity

TEX. R. CIV. P. 683. which resulted in an unsanitary condition constituting a

public health nuisance. We hold the order satisfactorily

Though the rule on its face applies to every order states the reasons for its issuance. Appellant's first

granting an injunction, HN4 the provision compelling a point of error is overruled.

detailed explanation of the reason for the injunction's

issuance has been held only to apply to temporary Adust also attacks the trial court's order by way of rule

injunctions or suits requesting ancillary injunctive relief. 683 in its second point of error, claiming the order does

City of Houston v. Morgan Guar. Intern. Bank, 666 not sufficiently specify what appellant is restrained from

S.W.2d 524, 536 (Tex. App.--Houston [1st Dist.] 1983, doing. Specifically, Adust challenges the order's

writ ref'd n.r.e.); Gasperson v. Madill Nat'l Bank, 455 language that it is prohibited from "maintaining an

S.W.2d 381, 398 (Tex. Civ. App.--Fort Worth 1970, writ

unsanitary condition," and from "tolerating a nuisance

ref'd n.r.e.); Texas Liquor Control Bd. v. Bacon, 443

to occur within its premises."

S.W.2d 312, 317 (Tex. Civ. App.--Austin 1969), rev'd on

other grounds, 456 S.W.2d 891 (Tex. 1970); Alexander Rule 683's requirement that orders be specific in terms

Schroeder Lumber Co. v. Corona, 288 S.W.2d 829, 835 and describe in reasonable detail the acts to be

(Tex. Civ. App.--Galveston 1956, writ ref'd n.r.e.). We restrained applies to permanent injunctions. HN5 A

are persuaded that rule 683's requirement for detailed permanent injunction should not be more

explanations of reasons for the issuance of the injunction

comprehensive or restrictive than justified by the

does not apply to a permanent injunction that is the sole

pleadings, evidence, and usages of equity. Thompson

relief sought by the action. The [**6] rule does apply to

v. Thompson [**8] Air Conditioning & Heating, Inc., 884

injunctive relief that is ancillary to other relief sought in

S.W.2d 555, 559 (Tex. App.--Texarkana 1994, no writ).

the action. In Schroeder, the Galveston court expressly

The Texas Supreme Court held:

held: "We reach the conclusion that [rule 683] applies

only to ancillary injunctive relief and not to final HN6 An injunction decree must be as definite, clear and

judgments in suits, the sole object of which is to obtain precise as possible and when practicable it should

a perpetual injunction." Schroeder, 288 S.W.2d at 835. inform the defendant of the acts he is restrained from

doing, without calling on him for inferences or

[*250] The Schroeder rule was applied in Gasperson:

conclusions about which persons might well differ and

"such rule [683] only applies to ancillary injunctive relief

without leaving anything for further hearing. (Citation

and not to final judgments." Gasperson, 455 S.W.2d at

omitted). But obviously the injunction must be in broad

398. The rule was also applied, although modified, in

enough terms to prevent repetition of the evil sought to

Bacon (in affirming the issuance of a permanent

be stopped, whether the repetition be in form identical

injunction) where the court said, "It has been held that

to that employed prior to the injunction or (what is far

Rule 683 . . . does not apply to permanent injunctions

more likely) in somewhat different form calculated to

insofar as it provides that the order shall state reasons

circumvent the injunction as written.

for its issuance." Bacon, 443 S.W.2d at 317. We likewise

hold that where the injunction is not ancillary to other

San Antonio Bar Ass'n v. Guardian Abstract & Title Co.,

relief sought, rule 683's provision requiring the injunction

156 Tex. 7, 15, 291 S.W.2d 697, 702 (1956).

to state the reasons for its issuance in specific terms

does not apply. 2 The order before us contains nine specific instructions

to appellant regarding lighting, signage, and its duties

[**7] However, even should that provision of rule 683 regarding patrons wishing to use the theater and booths.

apply, we hold that the order sufficiently apprized Adust Following these nine detailed instructions are five

of the reason for its issuance. The order prohibits general instructions that are apparently intended to

appellant from permitting itself to operate as a public 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.

Page 5 of 10

996 S.W.2d 245, *250; 1999 Tex. App. LEXIS 3790, **9

creation of a public health nuisance in, as the supreme In its third point of error, Adust challenges the injunction

court observed, "somewhat different form calculated to as a violation of its right to free speech under the First

circumvent the injunction." Id. Amendment to the U.S. Constitution. 3 It argues that the

constraints imposed by the injunction have a "chilling

Adust's complaint focuses on two of these general effect" both on its ability to convey its constitutionally

instructions. Specifically, it cites orders number two and protected message and the right of its customers to

three which prohibit Adust "from maintaining an receive it. By so doing, Adust is asserting the First

unsanitary condition within its premises at its [*251] Amendment rights of its customers to view adult films.

place of business" and from permitting "a nuisance to

[**11] The general rule is that HN9 a party may only

occur on its premises."

assert a violation of its own rights. "However, HN10 in

the First Amendment context, 'litigants . . . are permitted

The health and safety code defines HN7 "sanitary" as a

to challenge a statute not because their own rights of

condition of good order and cleanliness that precludes

free expression are violated, but because of a judicial

the probability of disease transmission." See TEX.

prediction or assumption that the statute's very

HEALTH & SAFETY CODE ANN. § 341.001(7) (Vernon

existence may cause others not before the court to

1992). Similarly, section 341.011 itemizes twelve

refrain from constitutionally protected speech or

conditions that constitute public health nuisances,

expression.'" Virginia v. American Booksellers Ass'n,

including: (5) sewage, human excreta, . . . or other 484 U.S. 383, 394, 98 L. Ed. 2d 782, 108 S. Ct. 636

organic wastes deposited . . . or exposed in such a way (1988) (quoting Secretary of State of Md. v. J.H. Munson

as to be a potential instrument or medium in disease Co., 467 U.S. 947, 956-57, 81 L. Ed. 2d 786, 104 S. Ct.

transmission to a person or between persons; . . . and 2839 (1984)).

(12) an object, place or condition that is possible and We review an injunction on First Amendment grounds

probable medium of disease transmission to or between under the same rule as a statute. Adust may assert the

humans." TEX. HEALTH & SAFETY CODE ANN. § constitutionally protected rights of its patrons. 4

341.011 (Vernon 1992).

[**12] The State concedes, and we so presume for the

HN8 When the purpose of an injunction is to protect the purposes of this opinion, that the materials appellant

public, [**10] the test of required specificity is seeks to exhibit are presumptively protected by the First

reasonableness, and in framing the decree, doubt Amendment to the United States Constitution. [*252]

should be resolved against the violator. Lloyd A. Fry Appellant argues that the conditions imposed by the

Roofing Co. v. State, 541 S.W.2d 639, 646 (Tex. Civ. trial court infringe upon its free speech rights and those

App.--Dallas 1976, writ ref'd n.r.e.); Davies v. of its customers.

Unauthorized Practice Comm. of State Bar of Tex., 431

S.W.2d 590, 595 (Tex. Civ. App.--Tyler 1968, writ ref'd HN11 Restrictions merely on the time, place, or manner

n.r.e.). Given the definitions supplied by statute of of exercise of free speech rights violate no constitutional

"nuisance" and "sanitary conditions," we hold the protections if sufficiently justified and narrowly enough

injunction is reasonably specific. drawn. The Supreme Court in Ward v. Rock Against

Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct.

We overrule appellant's second point of error. 2746 (1989), set out the appropriate standard for

reviewing restrictions on the time, place or manner of

II. CONSTITUTIONAL ATTACKS 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).

Page 6 of 10

996 S.W.2d 245, *252; 1999 Tex. App. LEXIS 3790, **12

HN12 The government may impose reasonable L.P., 960 S.W.2d 301, 308 (Tex. App.--Corpus Christi

restrictions of the time, place, or manner of protected 1997, no writ).

speech, provided restrictions "are [1] justified without

reference to the content of the regulated speech, that III. PARTICULAR PROVISIONS

they are [2] narrowly tailored to serve a significant

governmental interest, and that they [3] leave open A. Visibility and lighting

ample alternative channels for communication of the

Adust complains about particular requirements of the

information."

injunction that apply to visibility of activities on the

premises and the adequacy of lighting to assure visibility.

Id. at 791 (quoting Clark v. Community for Creative

Those provisions are the following:

Non-Violence, 468 U.S. 288, 293, [**13] 82 L. Ed. 2d

221, 104 S. Ct. 3065 (1984)). Because the injunction 1. Any employee or agent of the Defendant operating or

places restrictions on appellant's ability to display managing [**15] the business shall have a clear view at

presumptively protected materials to its customers, we all times of all events occurring within the premises.

review the provisions of the injunction under that

analysis. 2. The theater shall have adequate lighting at all times

that said business is open to the public.

HN13 Where the acts of the parties are divisible

regarding lawful and unlawful conduct, an injunction 3. The business shall have adequate running lights on

may not be framed so broadly so as to prohibit the the floor of the theater common to commercial theaters.

enjoyment of lawful rights. Kulkana v. Braeburn Valley

W. Civic Ass'n, 880 S.W.2d 277, 278 (Tex. [*253] 4. The business shall have a lighting system of

App.--Houston [14th Dist.] 1994, no writ). Since appropriate degree to allow a sufficient measure of

appellant presumably has the guaranteed constitutional visibility so that, if sexual activity occurs or is about to

right to exhibit these materials to adult patrons, the occur within the premises, whether such activity is by a

injunction should not prohibit or unduly restrict person alone or with another, such conduct would be

appellant's free enjoyment of that right. obvious and visible to any person managing the

business.

In addition to the government's interest in sanitation, the

government has a significant interest in preventing the The purpose of the injunction is to prevent the unsanitary

spread of sexually-transmitted diseases. HN14 A city conditions that have been repeatedly found on the

has a substantial interest in regulating sexually-oriented premises. Those conditions are the result of sexual

businesses. City of Renton v. Playtime Theatres, Inc., activities throughout the business. By preventing sexual

475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). The contacts from occurring, it is hoped the areas will be

State has a significant interest in preventing the spread kept sanitary. This paragraph, requiring all areas to be

of sexually transmitted disease through sexual activity visible to management, is to prevent sexual activity

on appellant's [**14] premises. See John Doe v. City of from occurring. Adust argues that sexual activity taking

Minneapolis, 898 F.2d 612, 617 (8th Cir. 1990) (holding place behind the closed doors of a room, however

that the ordinance at issue in that case advanced the small, is not illegal. Although that may be correct, such

significant governmental interest in combating the is not speech protected [**16] by the First Amendment.

spread of the AIDS virus). Adust has a right to exhibit films and sexually oriented

material under the Constitution, but such right is

HN15 The standard of review when a trial court grants unrelated to another person's right, if any, to engage in

or denies a permanent injunction is limited to whether sexual conduct.

the trial court clearly abused its discretion. Morris v.

Collins, 881 S.W.2d 138, 139-40 (Tex. App.--Houston HN16 Sexual activity in public places is prohibited by

[1st Dist.] 1994, writ denied). We consider whether the the Texas Penal Code. See TEX. PENAL CODE ANN.

trial court could reasonably have reached only one §§ 21.07, 21.08 (Vernon 1994). Peep show booths

decision, and whether its decision was so arbitrary and have been held to be public places. Liebman v. State,

unreasonable as to amount to a clear and prejudicial 652 S.W.2d 942, 944-45 (Tex. Crim. App. 1983).

error of law. See Walker v. Packer, 827 S.W.2d 833, 840 Theaters and retail shops open to the public are public

(Tex. 1992); AIG Risk Mgmt., Inc. v. Motel 6 Operating places.

Page 7 of 10

996 S.W.2d 245, *253; 1999 Tex. App. LEXIS 3790, **16

The United States Supreme Court has concluded HN17 Adust argues that such warnings are bound to have a

patrons of adult video theaters have no right to chilling effect on the [*254] store's patrons, particularly

anonymity in viewing films. Paris Adult Theatre v. Slaton, the unsophisticated, and that the warnings do not

413 U.S. 49, 65, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973). promote sanitary conditions. The purpose of the

In cases dealing with substantially similar issues, similar injunction is to prohibit the unsanitary conditions that

provisions have withstood challenge. See Bamon v. resulted from sexual conduct on the Adust premises.

City of Dayton, 923 F.2d 470, 473 (6th Cir. 1991); With a view towards eliminating the occasions for sexual

FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. conduct, the warning advises the public that such

1978). This requirement does not affect Adust's ability activities are prohibited. These notices do not affect

to sell or lease its films nor its patrons' right to view either the ability of Adust to sell or rent its materials or its

them. There is nothing improper in those portions of the patrons to purchase them. We find the paragraphs are

injunction. reasonably designed to further the government's

legitimate health interests.

B. Mandatory Warnings

C. THE IDENTIFICATION ORDER

The next three paragraphs [**17] deal with mandatory

warnings to Adust's patrons: The next paragraph provides:

5. The management, including any operators and 7. The management, including the operators and all

employees of the Defendant, shall be under a continuing employees of the Defendant, shall give to each person

obligation and duty to give verbal notice to any person wanting to enter the theater or any peep show booth a

who enters the premises that any sexual activity, written notice that no sexual activity by any person,

whether by that person alone or with another, is whether alone or with another, is permitted, allowed or

absolutely prohibited. tolerated.

6. The management, including any operators and

...

employees of the Defendant, shall post and permanently

maintain notice in the following locations: on the exterior

ENTRY RECEIPT

of the entrance door, at the place where payment is

made, at the entrance area to the theater, at the entrance [**19]I have received written notice of the above

to the peep show booth, on the interior wall of each Warning. I understand the warning.

peep show booth, on each interior wall of the theater, on

each interior wall of the business, on the entrance door The entry receipt requires the potential patron to sign

to each restroom premises [sic], and on each interior the notice, print his name, and divulge his address,

wall of each restroom; which shall state that no sexual phone and driver's license number. Adust is to maintain

activity by any person, whether alone or with another, is the originals on file for no-notice inspection by

permitted, allowed or tolerated. The notice shall be "appropriate law enforcement authorities." No person is

sufficient if it substantially states the following: to be allowed into the theater or peep show booth who

refuses to sign the entry receipt, and all who enter

"WARNING! without signing are to be advised they are committing a

No Sexual Activity By Any Person, trespass. Adust's management is ordered to

immediately call law enforcement authorities to enforce

Whether Alone Or With Any Other Person, the warning and receipt requirements.

Is Permitted, Allowed, or Tolerated In or About the While this order does not directly prohibit the exercise of

Premises. Adust's or its patrons' freedom of speech, HN18 the

First Amendment also protects against government

[**18] Violators Will Be Removed From the Premises,

inhibition as well as prohibition. Lamont v. Postmaster

Will Be Denied Future Entry Onto the Premises And Gen., 381 U.S. 301, 309, 14 L. Ed. 2d 398, 85 S. Ct.

1493 (1965) (Brennan, J., concurring). HN19 An

Will Be Referred To The Police For Criminal identification requirement exerts an inhibitory effect,

Prosecution." Talley v. California, 362 U.S. 60, 64-65, 4 L. Ed. 2d 559,

Page 8 of 10

996 S.W.2d 245, *254; 1999 Tex. App. LEXIS 3790, **19

80 S. Ct. 536 (1960), and therefore raises First activity, and shall immediately call law enforcement

Amendment issues comparable to those raised by direct authorities to report the commission of such activity.

government imposed [**20] prohibitions. Fabulous

Assocs. v. Pennsylvania Pub. Util. Comm'n, 896 F.2d Adust complains this language requires it to report

780, 785 (3d Cir. 1990). suspected sexual activity. We agree the paragraph as

written is confusing and, to the extent that it imposes a

The State cites Pollard v. Cockrell, 578 F.2d 1002,

requirement to report suspicions, overly broad. We find

1015-16 (5th Cir. 1978), for authority that obtaining and

the [**22] requirement to report violations of the

keeping such permits is rationally related to protecting

injunction's prohibitions appropriate, however, and

public health, in that, if contaminants are found, it may

be necessary to locate and notify patrons of possible cannot conclude this paragraph is not reasonably

exposure to disease. But Pollard involved a massage designed to further the County's interests.

parlor and the requirement that a detailed "appointment

book" be maintained. The aims of such a list is to keep Appellant's point is sustained. The first portion of the

minors from using such establishments and in paragraph is changed to read, "The management,

preventing patrons from soliciting proscribed sexual including any operators and employees of the

contacts. Id. at 1016. Defendant, upon detecting any sexual activity within the

premises by any person, . . . ."

The main purpose of such a requirement for Adust is to

inhibit potential customers from viewing the E. Random Inspections

sexually-oriented films by their loss of anonymity. The

requirement is not a reasonable restriction on Adust's The order requires Adust to "consent to random

business and it has no rational relationship to the inspection by the appropriate law enforcement

prevention of disease, sexually transmitted or otherwise. authorities of the State." Adust challenges this provision

The County has not borne its heavy burden of under the First and Fourth Amendments, to the extent

demonstrating that the compelling state interest could that it authorizes warrantless searches.

not be served by restrictions that are less intrusive on

protected forms of expression. See Sable HN20 A warrant is generally required for authorities to

Communications [**21] v. F.C.C., 492 U.S. 115, 126, search portions of a commercial enterprise that are not

106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989). 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

Adust's point is sustained and we strike the requirement warrantless search of commercial premises may be

that patrons complete an entry receipt, giving their reasonable when the business is "closely regulated." In

names, addresses, and other personal information, as

such a case the privacy interests of the owner are

a condition of entry to the theater and peep show

weakened and the government interest in regulating

booths.

are higher. New York v. Burger, 482 U.S. 691, 700, 96 L.

[*255] Because we have stricken the requirement that Ed. 2d 601, [**23] 107 S. Ct. 2636 (1987). HN22 The

Adust collect patrons' identification information, we need expectation of privacy that the owner of commercial

not consider Adust's complaint that the provision for property enjoys may, in certain circumstances, be

warrantless inspection of these receipts is improper. adequately protected by regulatory schemes authorizing

warrantless inspections. United States v. Biswell, 406

D. Reporting Requirement U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972).

Adust next complains of the injunction's requirement The Supreme Court has recognized this exception in

that: four industries. See Burger, 482 U.S. at 703-04

(automobile junkyards); Donovan v. Dewey, 452 U.S.

9. The management, including any operators and 594, 598-99, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981)

employees of the Defendant, upon suspecting or seeing (coal mining); Biswell, 406 U.S. at 316 (firearm and

any sexual activity within the premises by any person, ammunition sales); Colonnade Catering Corp. v. United

whether alone or with another, shall immediately cause States, 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774

the person or persons to stop, cease and desist such (1970) (liquor industry). Lower federal courts and some

Page 9 of 10

996 S.W.2d 245, *255; 1999 Tex. App. LEXIS 3790, **23

state courts have extended the exception to other Burger, 482 U.S. at 703.

industries. 5

This provision of the injunction requires appellant to

[**24] [*256] In Marshall v. Barlow's, Inc., 436 U.S. 307, "consent" to random inspections. The vagueness of the

98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), the Court struck order raises certain problems. The order does not limit

down the administrative search provision of section the "consent" to inspections to be conducted at any

8(a) of the Occupational Safety and Health Act of 1970 time, the scope of the inspection, the area to be

because it failed to tailor the scope and frequency of the inspected, whether the inspection is limited to the

inspections to the particular health and safety concerns business premises of appellant or could extend to other

posed. Id. at 323. Also the Act did not provide any places, or whether appellant's business records are to

standards to guide inspectors in the exercise of their

be included. The absence of conditions on the

authority to search. Id. "HN23 Where Congress has

inspections violates the constitutional requirements for

authorized inspection but made no rules governing the

such administrative searches. The injunction must have

procedures that inspectors must follow, the Fourth

"a properly defined scope, and it must limit the discretion

Amendment and its various restrictive rules apply."

of the inspecting officers." Id. We conclude the provision

Colonnade, 397 U.S. at 77. In such cases, a warrant

requiring appellant to consent to inspections by law

may be necessary to protect the owner from the

enforcement officers violates its Fourth Amendment

"unbridled discretion [of] executive and administrative

rights. That provision is stricken from the injunction.

officers," Barlow's, 436 U.S. at 323, by assuring him

Adust's point of error is sustained.

that reasonable legislative or administrative standards

for conducting an inspection are satisfied with respect We sustain Adust's third point of error, MODIFY the

to a particular establishment. Camara v. Municipal Ct. injunction and, as modified, AFFIRM.

of San Francisco, 387 U.S. 523, 538, 18 L. Ed. 2d 930,

87 S. Ct. 1727 (1967). J. BONNER DORSEY,

"HN24 The regulatory statute must perform the two Justice

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

the commercial [**25] premises that the search is being Opinion [**26] delivered and filed this 20th day of May,

made pursuant to law and has a properly defined scope, 1999.

and it must limit the discretion of the inspecting officers."

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).

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 the petition attached. The defendant failed to answer or

131st District Court of Bexar County, Trial Court No. appear, and the default judgment was entered.

86-CI-18182, Honorable Raul Rivera, Judge Presiding.

The judgment referred to the Earnest Money Con-

tract between the [**2] parties as "dated September 18,

1986," when, in fact, the escrow agent dated the instru-

COUNSEL: Lance E. Houghtling, Attorney for Appel-

ment on September 16, 1986, and the contract was exe-

lant.

cuted on October 15, 1986. The pleadings of the plaintiff

set out the date of execution as October 15, 1985. The

Steven M. Gross, Attorney for Appellee.

default judgment also referred to and incorporated by

reference the original Earnest Money Contract which has

JUDGES: Rudy Esquivel, Associate Justice, Alfonso

the agent's date as well as the correct date of execution.

Chapa, Associate Justice, Shirley W. Butts, Associate

Justice. Almost four months after the judgment was origi-

nally signed, an order nunc pro tunc was granted on

OPINION BY: BUTTS plaintiff's motion to correct the spelling of the defend-

ant's name.

OPINION

Plaintiff argues in his first point of error that the de-

[*139] This is an appeal by writ of error from a fault judgment is invalid because the petition, citation

default judgment in favor of plaintiff, Juan Estevez. The and judgment misspelled defendant's name "Everett

judgment granted specific performance on a contract to Cockrall," when the correct spelling is "Everett

purchase real estate and awarded attorney's fees. In two Cockrell." The second point is that error resulted because

points of error plaintiff challenges service of process and of non-conformity between the pleadings and the judg-

failure of the default judgment to conform to the plead- ment and that the pleadings describe an earnest money

ings. contract dated October 15, 1985, while the judgment

describes an earnest money contract dated September 18,

Plaintiff's petition misstated the name "Cockrell" as

1986.

"Cockrall." The name "Cockrell" was properly spelled in

the Earnest Money Contract being sued upon which was A petition should serve its designed purpose "to de-

attached to the petition and incorporated in it by refer- fine the issues at trial." Murray v. O & A Express, Inc.

ence. The citation contains the same misspelling of de- [**3] , 630 S.W.2d 633, 636 (Tex. 1982). In this case

fendant's name but was personally served on him with 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 par- citation named the son but the father was served. Zim-

ties and provides the defendant "information sufficient to merman v. First National Bank of Bowie, 235 S.W.2d

enable him to prepare a defense." Roark v. Allen, 633 720 (Tex. Civ. App. Fort Worth 1950, writ ref'd n.r.e.)

S.W.2d 804, 810 (Tex. 1982). In addition, we will apply concerned a writ of garnishment issued under a different

the rule of idem sonans 1 because the two spellings name from the judgment upon which it was based.

[*140] of the name "Cockrell" appear to be nearly in- Again, substantially different situations from that of the

distinguishable by their sounds when pronounced. present case.

The purpose of citation is to give the court proper

1 The rule of idem sonans is that absolute ac-

jurisdiction of the parties and to provide notice to the

curacy in spelling a name is not required in a le-

defendant that he has been sued and by whom and for

gal document or proceedings, either civil or

what so that due process will be served and he will have

criminal; that if a name, as spelled in the docu-

an opportunity to appear and defend the action.

ment, though different from the correct spelling

Sgitcovich v. Sgitcovich [**6] , 150 Tex. 398, 241

thereof, conveys to the ear, when pronounced

S.W.2d 142, 146 (1951), cert. denied, 342 U.S. 903, 72 S.

according to the commonly accepted method, a

Ct. 291, 96 L. Ed. 676 (1952), Stephenson v. Corporate

sound practically identical to the correct name as

Services, Inc., 650 S.W.2d 181, 184 (Tex. App. -- Tyler

commonly pronounced the name thus given is a

1983, writ ref'd n.r.e.), Bozeman v. Arlington Heights

sufficient identification of the individual referred

Sanitarium, 134 S.W.2d 350, 351-52 (Tex. Civ. App. --

to, and no advantage can be taken of the clerical

Dallas 1939, writ ref'd). We hold that the misspelling of

error. Dingler v. State, 705 S.W.2d 144, 145

the defendant's name in the citation does not invalidate

(Tex. Crim. App. 1984).

service of process. If defendant's misspelled name in the

[**4] The Texas Supreme Court has approved in citation or return does not invalidate service of process,

practice, the application of the rule of idem sonans in neither does such error require reversal of a default

civil cases. Adams v. Grogan-Cochran Lumber Co., judgment. Salazar v. Tower, 683 S.W.2d 797, 799 (Tex.

181 S.W.2d 582, 588-89 (Tex. Civ. App. -- Amarillo App. -- Corpus Christi 1984, no writ); Popkowsi v.

1944), aff'd, 186 S.W.2d 677, 143 Tex. 490 (1945). When Gramza, 671 S.W.2d 915, 917-18 (Tex. App. -- Houston

an intended defendant is sued under an incorrect name, [1st Dist.] 1984, no writ).

jurisdiction is proper after service on the defendant under

As discussed above, there is no issue raised of lack

the misnomer, but it must be clear that no one was mis-

of service of citation on the intended defendant "Everett

led. Orange Grove Independent School District v. Rive-

Cockrell," nor does defendant claim he was misled by

ra, 679 S.W.2d 482, 483 (Tex. 1984), Adams v. Consoli-

the misspelling of his name in this case. Since defendant

dated Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841

was the proper one to be served with citation and was not

(1939).

misled by the error in the spelling of his name, the record

A misnomer of a defendant does not render a judg- does not reflect invalid service of process. Consolidated

ment based on personal service, even one by default, Underwriters, [**7] supra, 124 S.W.2d at 841. Appel-

void, provided the intention to sue the defendant actually lant's first point of error is overruled.

served with citation is so evident from the pleadings and

We find that the judgment in this case properly con-

process that the defendant could not have been misled. R.

forms to the pleadings, from which the court can deter-

McDONALD, TEX. CIV. PRACTICE § 6.04.1 (1982).

mine the elements of plaintiff's cause of action and iden-

It is significant that the defendant does not raise an tify the relief sought. Mere formalities, minor defects, or

issue of mistake in identity or lack of service or of im- technical insufficiencies will not invalidate a default

proper service under the rules but raises only the claim judgment [*141] where the petition states a cause of

that the improper spelling of his name voids the citation. action and gives "fair notice" to the opposing party of the

The fact that defendant was personally [**5] served relief sought. Stoner v. Thompson, 578 S.W.2d 679,

with citation distinguishes the case at hand from the cas- 682-83 (Tex. 1979). In a similar case it was held that

es relied upon by him. Two of those cases dealt not with discrepancies in dates were clerical errors and could not

personal citation but with citation by publication and have surprised the defendant or prejudiced his rights.

citation by mail. Mega v. Anglo Iron & Metal Co. of Pace Sports, Inc. v. Davis Brothers Publishing Co., 508

Harlingen, 601 S.W.2d 501 (Tex. Civ. App. -- Corpus S.W.2d 493, 494 (Tex. Civ. App. -- Waco 1974), aff'd,

Christi 1980, no writ); Fleming v. Hernden, 564 S.W.2d 514 S.W.2d 247 (Tex. 1974).

157 (Tex. Civ. App. -- El Paso 1978, writ ref'd n.r.e.). In

The earnest money contract for which specific per-

Nail v. Gene Biddle Feed Co., Inc., 347 S.W.2d 830

formance was sought in this case was attached to plain-

(Tex. Civ. App. -- Beaumont 1961, no writ), two differ-

tiff's petition and was incorporated in the petition and

ent individuals were involved, a father and a son, the

Page 3

737 S.W.2d 138, *; 1987 Tex. App. LEXIS 8440, **

also in the judgment by reference. When an inspection of son, 471 S.W.2d 28 (Tex. 1971), Williams v. Pitts, 251

an exhibit referred to in the pleadings shows facts con- S.W.2d 148, 151 Tex. 408 (1952). The court did enter an

tradictory to the pleadings, the exhibit, not the allegation order nunc pro tunc correcting the spelling of the de-

of the pleadings, [**8] must control. Paul v. Houston fendant's name almost four months after the original

Oil Co. of Texas, 211 S.W.2d 345, 353-54 (Tex. Civ. judgment. This was within the trial court's authority.

App. -- Waco 1948, writ ref'd n.r.e.). The agent's date on Since both the petition and the judgment reference the

the earnest money contract, appears to be September 16, earnest money contract, and since the petition seeks and

1986. It is obviously this date to which the judgment the judgment orders specific performance on the contract

refers when describing the contract as dated on Septem- and attorney's fees, there is no variance between the peti-

ber 18, 1986. The same reasoning applies as to the dis- tion and the judgment. The second point of error is over-

crepancy in the date of execution. Although the trial ruled.

court did not act on the matter of the dates, the error is

The judgment in the trial court is [**9] affirmed.

merely clerical and is subject to correction by the court at

any time. See Universal Underwriters Ins. Co. v. Fergu-

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 process servers was on file with the clerks of the district

RULES OF APPELLATE PROCEDURE, UN- and county courts, the appellate court took judicial notice

PUBLISHED OPINIONS SHALL NOT BE CITED AS of it and considered it to be part of the papers on file in

AUTHORITY BY COUNSEL OR BY A COURT. the appeal. The returns were properly acknowledged

before a notary public, thus they were not defective. The

PRIOR HISTORY: From County Court at Law No. lessee's name was not actually misspelled, but the last

3, Bexar County, Texas. Trial Court No. 254616. Hon- letter was cut off. It was inconsequential.

orable Irene Rios, Judge Presiding.

OUTCOME: The default judgment was affirmed.

DISPOSITION: Affirmed.

LexisNexis(R) Headnotes

CASE SUMMARY:

PROCEDURAL POSTURE: Appellants, a lessee and Civil Procedure > Pretrial Judgments > Default > De-

his company, filed a restricted appeal from a default fault Judgments

judgment for $ 58,390 plus $ 4,000 attorney's fees ren- Civil Procedure > Appeals > Records on Appeal

dered against them, arising out of a suit for breach of a [HN1] A restricted appeal is a direct attack on a judg-

lease agreement brought by appellee, lessor, in County ment. A direct attack on a judgment must: (1) be brought

Court at Law No. 3, Bexar County, Texas. within six months after the trial court signs the judgment;

(2) by a party to the suit; (3) who did not participate in

OVERVIEW: The lessee contended the trial court erred the actual trial; and (4) the error complained of must be

in rendering a default judgment because (1) citation was apparent from the face of the record. The face of the rec-

not served by a person authorized under Tex. R. Civ. P. ord consists of all the papers on file in the appeal, in-

103; (2) the return of citation was defective because the cluding the statement of facts. For a default judgment to

verifications were defective; and (3) the return of citation withstand a direct attack, strict compliance with the Tex-

was defective because his last name was misspelled on it. as Rules of Civil Procedure regarding the issuance of

The parties did not dispute lessee's entitlement to bring a citation, the manner and mode of service, and the return

restricted appeal but disagreed regarding whether he was of process must be shown on the face of the record. No

properly served. Because the list of authorized private presumptions in favor of valid issuance, service, and

Page 2

2001 Tex. App. LEXIS 6913, *

return are made, and the record must affirmatively show record. Bautista, 9 S.W.3d at 251. No presumptions in

strict compliance with the rules. favor of valid issuance, service, and return are made, and

the record must affirmatively show strict compliance

with the rules. Id.

Civil Procedure > Pleading & Practice > Service of

In three points of error, Garcia contends the trial

Process > General Overview

court erred in rendering a default judgment because (1)

[HN2] Tex. R. Civ. P. 107 provides that the return of

citation was not served by a person authorized under

citation by an authorized person "shall be verified" but

Rule 103 of the Rules of Civil Procedure; (2) the return

does not specify the manner of verification. "Verified"

of citation was defective because the verifications were

for purposes of rule 107 is defined as acknowledgment

defective; and (3) the return of citation on Rodrigo Gar-

of the instrument before a notary public.

cia was defective because it shows citation was served on

Rodrigo "Garci." The parties do not dispute Garcia's en-

titlement to bring a restricted appeal 1 but disagree re-

Civil Procedure > Pleading & Practice > Service of

garding whether he was properly served.

Process > General Overview

[HN3] Strict compliance does not require "obeisance to

1 It is evident from the record that Garcia is a

the minutest detail." Spelling errors too minor to raise

party to the appeal, did not appear or file any mo-

any doubt that the correct person was served are insuffi-

tions, and brought the restricted appeal within six

cient to invalidate service.

months after the judgment was signed.

COUNSEL: APPELLANT ATTORNEY: Kelly K. [*3] In point of error one, Garcia contends the

McKinnis, Attorney At Law, McAllen, TX. Ruben person who served him was not authorized by law. Ser-

Ramirez, Law Office Of Ruben Ramirez, McAllen, TX. vice is permitted by any person "authorized by law or by

written order of the court who is not less than eighteen

APPELLEE ATTORNEY: J. Philip Collier, Law Offices years of age." TEX. R. CIV. P. 103(2). He contends there

Of J. Philip Collier, San Antonio, TX. is error on the face of the record because the record does

not contain a written order authorizing Beatrice Cantu to

JUDGES: Opinion by: Catherine Stone, Justice. Sitting: serve process. Little refers this court to the approved list

Alma L. Lopez, Justice, Catherine Stone, Justice, Karen of process servers on file with the Bexar County District

Angelini, Justice. Clerk and Bexar County Clerk; Beatrice Cantu's name

appears on this list. Little contends there is no authority

OPINION BY: Catherine Stone requiring that the record in each case must independently

establish the authority of the private process server, and

OPINION that Rule 103 does not require it. We agree, and decline

to impose such a condition. Because the list of author-

This is a restricted appeal from a default judgment

ized private process servers is on file with the clerks of

for $ 58,390.61 plus $ 4,000 attorney's fees rendered

the district and county courts, we take judicial notice of it

against appellants Color Smart, Inc. and Rodrigo Garcia

and consider it to be part of the papers "on file in the

(collectively, Garcia) arising out of a suit for breach of a

appeal." See Norman Communications, 955 S.W.2d at

lease agreement brought by appellee Larry Little.

270.

[HN1] A restricted appeal is a direct attack on a

We overrule point of error one.

judgment. Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex.

App.--San Antonio 1999, no pet.). A direct attack on a In point of error two, Garcia challenges the manner

judgment must: (1) be brought within six months after in which the returns [*4] of citation are verified, argu-

the trial court signs the judgment; (2) by a party to the ing they are defective because there is no basis to show

suit; (3) who did not participate in the actual trial; and (4) how the person verifying the return has personal

the error complained of must be apparent from the face knowledge of its facts, nor is there any mention of the

of the record. Norman Communications v. Texas East- name of the person who is verifying the return. [HN2]

man Co., 955 S.W.2d 269, 270 (Tex. 1997). [*2] The Rule 107 provides that the return of citation by an au-

face of the record consists of all the papers on file in the thorized person "shall be verified" but does not specify

appeal, including the statement of facts. Id. For a default the manner of verification. See TEX. R. CIV. P. 107.

judgment to withstand a direct attack, strict compliance "Verified" for purposes of Rule 107 is defined as "ac-

with the Texas Rules of Civil Procedure regarding the knowledgment of the instrument before a notary public."

issuance of citation, the manner and mode of service, and See Bautista, 9 S.W.3d at 251. The returns of service

the return of process must be shown on the face of the

Page 3

2001 Tex. App. LEXIS 6913, *

here are properly acknowledged before a notary public, the final "a" in Garcia was cut off. Even if the original

thus they are not defective in this regard. return actually shows "Garci" we are not persuaded this

is error. Rodrigo Garcia's name is correctly spelled in the

We overrule point of error two.

petition and in the notice of citation; it is only mis-

In point of error three, Garcia contends that service spelled, if at all, in the return. [HN3] Strict compliance

was ineffective because one service was directed to "Ro- does not require "obeisance to the minutest detail." Her-

drigo Garcia" but was served on "Color Smart, Inc. to bert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866,

registered agent Rodrigo Garcia" and the other was di- 871 (Tex. App.--Houston [1st Dist.] 1995, no writ).

rected to "Rodrigo Garcia" but served on "Rodrigo Gar- Spelling errors too minor to raise any doubt that the cor-

ci." The authority cited by Garcia is distinguishable be- rect person was served are insufficient to invalidate ser-

cause, unlike the case before us, the defendants were not vice. Ortiz v. Avante Villa at Corpus Christi, Inc., 926

personally served with citation. The petition served with S.W.2d 608, 613 (Tex. App.--Corpus Christi 1996, writ

the citation shows Color Smart, Inc. and [*5] Rodrigo denied); McDonough v. Williamson, 742 S.W.2d 737,

Garcia as the defendants. We see no error in directing 740 (Tex. App.--Houston [14th Dist.] 1987, no writ).

service to Color Smart's registered agent, Rodrigo Gar-

We overrule point of error [*6] three.

cia, as was done here. We also see no error in the return

showing personal service on Rodrigo "Garci." The mar- We affirm the default judgment.

gins of original papers are frequently cut off when copies

Catherine Stone, Justice

are made; that appears to be what happened here--i.e.,

| | 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. elements that had to be met for a restricted appeal

Rudolph GUZMAN, Appellee under Tex. R. App. P. 30. There was no error on the face

of the record because service of an amended petition

Subsequent History: Petition for review denied by was not required since no new causes of action were

Cont'l Cas. Co. v. Guzman, 2009 Tex. LEXIS 606 (Tex., pled. The claimant did not have to show the element of

Aug. 21, 2009) due diligence in relation to his bill of review because he

was contending that substituted service was invalid.

Prior History: [*1] From the 45th Judicial District Court, There was sufficient proof in the record that the carrier

Bexar County, Texas. Trial Court No. 2006-CI-07475. was served and that the trial court had jurisdiction. Also,

Honorable John D. Gabriel, Jr., Judge Presiding. the claimant was required to file his bill of review petition

in the same court where the default judgment was

Disposition: AFFIRMED. taken. The trial court did not err in failing to hear

evidence before granting a default in favor of the

Core Terms 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.

default judgment, bill of review, amended petition,

workers' compensation, original petition, fa

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