Petition for Writ of Certiorari — Kahn v. Beicker Engineering, Inc.

preme Oourt, U.s

FILED

96 sss aces

NO. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1996

BURTON KAHN,

Petitioner

V.

BEICKER ENGINEERING, INC., DAVY L. BEICKER AND

MICHAEL J. ZEZULA.,

Respondents

On Petition For Writ of Certiorari

To The Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

Burton Kahn

Petitioner pro-se

7003 Glen Trail

San Antonio, Texas 78239

Office (210) 599-9566

QUESTIONS PRESENTED

Is the State action, of depriving a citizen of his property

at a hearing in which he was not afforded notice at a meaningful

time and in a meaningful manner, a violation of Due Process

Clause of the Fourteenth Amendment of the Constitution of the

United States?

Does the suppression of material and crucial evidence

relating to Due Processs, by a state appellate court, who then

based its denying opinion on the lack of that evidence, a

violation of Due Process Clause of the Fourteenth Amendment of

the Constitution of the United States?

ai i |

TABLE OF CONTENTS

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FTP REGION sckncecccacdisvkirdiasbounasea enietisdananiovelanipiadlidaouen 2

CONSTITUTIONAL AND STATUTORY

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SE A TRONS i. .cic dace hscstdeaelcatebs tise cevisteeniamad lubtipeinniions 5 |

REASONS FOR GRANTING PETITION .....00.0.......0.c000000000: 8 |

A. Due Process right to opportunity to be |

heard prior to the deprviation of property........... 8

B. Suppresion of material |

evidence is a violation of Due )

Process Clause of the Fourteenth |

PI Fie OS cece henebias 10 |

COCR AFG A ss, icitinsscscscapeiesu Was wah eetaaveamcmenian 1]

APPENDIX

Texas Supreme Court denying

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Const Of Amenis One <.......cicccscssscasccsecencqasonsinnsen 2a-6a

Order Granting Special Exceptions .................0...060000. 7a

SOUR GUE SII ia ices isieccky ahdcdccaus a prucdieta slgatinccesakadeenl l8a |

Order Denying Motion For

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Order Denying Plaintiffs

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Texas Supreme Court overruling |

Motion for Rehearing of Petition .....................0cc00000. lla

Court of Appeals denial of

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Cerified Copy of Affidavit ....0.....0....cccccccceeeseeeeees 13a-14a

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.

TABLE Of AUTHORITIES

Cases

Armstrong v. Manzo, 380 US 545, 552, 14 L Ed 2d 62,

SRE ADEE Re .....6,8,10

Boddie v. Connecticut, 401 U.S. 371, 379, 28 L Ed 2d 113

SS EE Pa ae eerie Poe De eee ea aR ee 9

Brady v. Maryland, 373 US 83, 10 L Ed 2d 215,

I i sliavshadeussinion 7,10

Cleveland Board of Education v. Londermill,

a I ail cds snonenana undionsucbbntnane 10

Coe v. Armour Fertilizer Works, 237 US 413, 423,

aa IN DE Ee ED 0 PO BB ssc ccecastcckssaisdvesrcasseininiecsseast 10

Fuentes v. Shevin, 407 US, at 80-81,32 L Ed 2d 556,

Nee ee cl caniwasanaaunes 2)

ae I EF, WR. WB ies Sans chsenaopinsnivssvevicneacesekssncsice 9

Kinsella v. United States ex rel. Singleton, 361 U.S. 234,

DE, eee ee BO, OO AA, BOT CED D vais ocnccvccsscascccscesescccvenssccsesess 1]

Logan v. Zimmerman Brush Co., 455 US 422, 428,

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UP OAS EU © Ol Gh, OE osc cacavcsaesscscossccncacsncstccvecopsscnss 9

Mullane v. Central Hanover Bank & Trust Co..,

339 US 306, 94 L Ed 865, 70 S Ct 652 (1950)... 7,8

Pennoyer v. Neff, 95 U.S. 714, 732-33 (1878)..........0.c00cccccee 8

Peralta v. Heights Medical Cemer, Inc., 485 US 80, 84,

99 L Ed 2d 75, 108 S Ct 896 (1988) oo... eee 6,10

I PI, ED GP, Wh, I occ snasoycessncsuvsasnsnaacieansessecatvanss 9

a I TOU OO osc vnseucescsnsarceuntnevessnsuansaabe 9

United States v. Good Real Property,510 US _,

126 L.Ed 2d 490, 503, 114 S.Ct. 492, (1993) ooo... 9

Washington v. Harper, 494 US 210,235,

108 L Ed 2d 178, 110 S Ct 10280 (1991)... 9

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|

Other Authorities

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iv

No.

IN THE

Supreme Court of the United States

October Term, 1996

BURTON KAHN,

Petitioner

V.

BEICKER ENGINEERING, INC., DAVY L. BEICKER

AND MICHAEL J. ZEZULA.,

Respondents

On Petition For Writ of Certiorari

To The Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

Burton Kahn respectfully petitions for a writ of certiorari

to review the judgment of the Supreme Court of Texas.

OPINIONS BELOW

The Supreme Court of Texas did not issue an opinion.

(See App. infra at 1a)

The Court of Appeals for the Fourth Supreme Judicial

District of Texas opinion, affirming the trial court decision, was

unpublished. Appeal No. 04-94-00823-CV entitled BURTON

KAHN v. BEICKER ENGINEERING, INC, Davy L.

BEICKER and Michael J. ZEZULA. (See App. infra at 2a-6a).

The 166th District Court of Bexar County did not issue

an opinion.

JURISDICTION

The Supreme Court of Texas denied Petitioner's

application for a writ of error on April 25,1996. (See App. infra

at la). On May 31,1996, the Supreme Court of Texas

overruled petitioner’s motion for rehearing of the application for

writ of error. ( See App. infra at 11a).

Jurisdiction of this Court is invoked under 28 U.S.C. §

1257(2).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. XIV, Section 1, provides:

No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

LT LT LE LT TOL IE, | LR TEA eet are

Rule 21 of the Texas Rules of Civil Procedure provides:

Filing and Serving Pleadings and Motions. Every pleading, plea,

motion or application to the court for an order, whether in the

form of a motion, plea or other form of request, unless presented

during a hearing or trial, shall be filed with the clerk of the court

in writing, shall state the grounds therefor, shall set forth the

relief or order sought, and at the same time a true copy shall be

served on all other parties, and shall be noted on the docket. An

application to the court for an order and notice of any hearing

thereon, not presented during a hearing or trial, shall be served

upon all other parties not less than three days before the time

specified for the hearing, unless otherwise provided by these rules

or shortened by the court. If there is more than one other party

represented by different attorneys, one copy of such pleading

shall be delivered or mailed to each attorney in charge. The

party, or attorney of record, shall certify to the court compliance

with this rule in writing over signature on the filed pleading, plea,

motion or application. After one copy is served on a party, that

party may obtain another copy of the same pleading upon

tendering reasonable payment for copying and delivering.

Rule 21a of the Texas Rules of Civil Procedure provides:

Methods of Service. Every notice required by these rules, and

every pleading, plea, motion, or other form of request required to

be served under Rule 21, other than the citation to be served

upon the filing of a cause of action and except as otherwise

expressly provided in these rules, may be served by delivering a

copy to the party to be served, or the party's duly authorized

agent or attorney of record, as the case may be, either in person

or by agent or by courier receipted delivery or by certified or

registered mail, to the party's last known address, or by

telephonic document transfer to the recipient's current telecopier

number, or by such other manner as the court in its discretion

3

may direct. Service by mail shall be complete upon deposit of the

paper, enclosed in a postpaid, properly addressed wrapper, in a

post office or official depository under the care and custody of

the United States Postal Service. Service by telephonic

document transfer after 5:00 p.m. local time of the recipient shall

be deemed served on the following day. Whenever a party has

the right or is required to do some act within a prescribed period

after the service of a notice or other paper upon him and the

notice or paper is served upon him by mail or by telephonic

document transfer, three days shall be added to the prescribed

period. Notice may be served by a party to the suit, an attorney

of record, a sheriff or constable, or by any other person

competent to testify. The party or attorney of record shall certify

to the court compliance with this rule in writing over signature

and on the filed instrument. A certificate by a party or an

attorney of record, or the return of an officer, or the affidavit of

any person showing service of a notice shall be prima facie

evidence of the fact of service. Nothing herein shall preclude

any party from offering proof that the notice or instrument

was not received, or, if service was by mail, that it was not

received within three days from the date of deposit in a post

office or official depository under the care and custody of the

United States Postal Service, and upon so finding, the court may

extend the time for taking the action required of such party or

grant such other relief as it deems just. The provisions hereof

relating to the method of service of notice are cumulative of all

other methods of service prescribed by these rules. On expiration

of the time within which the tral court has plenary power, a

judgment cannot be set aside by the trial court except by bill of

review for sufficient cause, filed within the time allowed by law;

provided that the court may at any time correct a clerical error in

the record of a judgment and render a judgment nunc pro tunc

under Rules 316 and 317, and may also sign an order declaring a

previous judgment or order to be void because signed after ihe

court's plenary power lias expired.[emphasis added]

STATEMENT

Petitioner Burton Kahn (hereinafter "Kahn") filed suit

against Beicker Engineering, Inc., Davy L. Beicker and Michael

J. Zezula (hereinafter "Beicker"). The suit was a libel and

defamation suit based on three letters writen by Beicker to Bexar

County, Texas concerning the adequacy of a certain concrete

slab engineered by Kahn. Beicker filed two identical First

Amended Original Answers: one on July 30 and the other on

August 3, 1994. Beicker filed the August 3, Answer in the

District Court that had for the last page a fiat setting a hearing on

Beicker's special exception. Kahn received the August 3, 1994,

Answer but claims he did not receive the last page that contained

the notice of hearing and swore to it in an affidavit. Kahn failed

to appear at the special exception hearing. The trial court

sustained Beicker’s special exception and gave Kahn ten days to

amend his petition and failure to amend his petition would result

in the petition being dismissed with prejudice.( See App. infra at

7a.) Although he received the order granting the special

exception, Kahn failed to amend his pleadings. On August 25,

1994, a hearing was held to hear Beicker's motion to dismiss.

Kahn did not receive notice of the hearing, nor was there a

notice of hearing filed with the District Clerk. At this hearing, the

trial court sustained Beicker’s motion to dismiss Kahn's cause of

action with prejudice. ( See App. infra at 8a.) This in fact was an

Ex-Parte hearing and decision without Kahn having an

opportunity to be heard.

Texas Rules of Civil Procedure Rule 21 provides that a

notice is to be sent to all parties upon all applications to the court.

The only type of notice Kahn received was in the Special

Exception Order, (See App. infra at 7a) which gave Kahn 10

5

o- IE EEE EEO OEE EE Ee

days to replead. The Court of Appeals for the Fourth Supreme

Judicial District of Texas ("Appellate Court") stated at (See App.

infra at 6a ) that:

"In the Order Granting Special Exception,

however, the trial court specifically states "in the

event Plaintiff fails to amend his Petition in

conformity with this Order within 10 days from

date hereof, this law suit shall be dismissed with

prejudice as to the refiling of same.,' Judge

McManus signed this order on August 12,1994.

Kahn, who acknowledges receipt of this

document, was thus put on notice by the trial

court as to the consequences of not amending his |

pleadings." |

This so called notice was not at a meaningful time nor in

a meaningful manner to give Kahn an opportunity to be heard

and explain to the trial court that Kahn did not have notice and

the confusion of the Special Exceptions. Peralta v. Heights

Medical Center, Inc., 485 US 80, 84, 99 L Ed 2d 75, 108 S Ct

896 (1988), Armstrong v. Manzo, 380 US 545, 550, 14 L Ed 2d

62, 85 S Ct 1187 (1965)

Kahn filed a Motion to Reinstate (See App. infra at 15a)

in the trial court and attached an affidavit (See App. infra at

13a), stating that he did not have notice of the hearing, which

countered the presumption that the answer included a notice.

Texas Rules of Civil Procedure Rule 21a provides that a party

can offer proof that the notice or instrument was not received.

Kahn also presented evidence that there were clerical errors in

these proceedings by Beicker. The District Court disregarded

the affidavit of Kahn stating that there was no notice and denied

Petitioner’s Motion to Reinstate. (See App. infra at 9a.) The

District Court denied Petitioner's Motion for New Trial. (See

a . =

ee

App. infra at 10a). The Appellate Court stated in an

unpublished opinion (See App. infra at 6a) that:

"Kahn has failed to bring forth any verified

proof that he did not receive notice from Beicker

and has therefore failed to rebut the presumption

that the document was received."

The Appellate Court did not attack the affidavit as faulty

but suppressed it. In a motion for rehearing, Kahn attached a

certified copy of the affidavit from transcript sent to the Appellate

Court. The Appellate Court En Banc overruled the rehearing.

(See App. infra at 13a). The Texas Supreme Court denied

Kahn's application for writ of error without an opinion. (See

App. infra at la). The Appellate Court's suppression of this

material evidence is a much greater violation of the Due Process

Clause in the Fourteenth Amendment to the United States

Constitution than a prosecutor's violation of suppressing material

evidence. Brady v. Maryland, 373 US 83, 10 L Ed 2d 215, 83 S

Ct 1194 (1963).

Kahn, a natural born citizen of the United States and

veteran of the United States Army, represented himself in this

action. Because Kahn was acting in this case as a pro-se, all the

courts below suppressed the conclusive and material evidence

that Kahn did not receive notice and disregarded his

constitutional rights of the Due Process Clause of the Fourteenth

Amendment. Kahn's property is his tort claim against Beicker

and that his property was taken without due process of law as

per the Fourteenth Amendment to the Constitution of the United

States. Logan v. Zimmerman Brush Co., 455 US 422, 428, 71

L Ed 2d 265, 102 S Ct 1148 (1982); Mullane y. Central

Hanover Bank & Trust Co., 339 US 306, 94 L Ed 865, 70 S Ct

652 (1950). Not only did Kahn have his property at stake, but he

had a liberty interest as well in protecting his "good name, and

reputation,

REASON FOR GRANTING THE WRIT

A. Due Process right to have opportunity to be heard prior

to the deprivation of property.

This Court has had a long history of protecting citizens of

their due process rights and their nght of opportunity to be heard

prior to the deprivation of their property. This tradition should

continue.

It is axiomatic that the Fourteenth Amendment forbids

the exercise of judicial power without notice to the defendant and

an Opportunity to be heard. To bound a defendant without

notice would be contrary to the first principles of justice.

Pennoyer v. Neff, 95 U.S. 714, 732-33 (1878).

In Armstrong v. Manzo, 380 US 545, 550, 14 L Ed 2d

62, 85 S Ct 1187 (1965) the Court stated:

"Many controversies have raged about the

cryptic and abstract words of the Due Process

Clause but there can be no doubt that at a

minimum they require that deprivation of life,

liberty or property by adjudication be preceded

by notice and opportunity for hearing appropriate

to the nature of the case." Mullane v. Central

Hanover Tr. Co., 339 U. S. 306, at 313. "An

elementary and fundamental requirement of due

process in any proceeding which is to be

accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested

parties of the pendency of the action and afford

them an opportunity to present their objections.

Milliken v. Meyer, 311 U. S. 457; Grannis v.

Ordean, 234 U. S. 385; Priest v. Las Vegas .

232 U. S. 604; Roller v. Holly, 176 U. S. 398. .

"Id, at 314."

Yet notice and an opportunity to be heard before

property is taken is the “root requirement" of the Due Process

Clause. Boddie v. Connecticut, 401 U.S 371, 379, 28 L Ed 2d

113, 91 S Ct 780

1971).

In Washington v. Harper, 494 US 210,235, 108 L Ed

2d 178, 110 S Ct 10280 (1991) this Court stated: the

opportunity to be heard "must be granted at a meaningful time

and in a meaningful manner." Armstrong v. Manzo, 380 US

545, 552, 14 L Ed 2d 62, 85 S Ct 1187 (1965).

In United States v. Good Real Property, 510 US _,

126 L.Ed 2d 490, 503, 114 S.Ct. 492 (1993) this Court stated

"The right to prior notice and a hearing is central

to the Constitution's command of due process.

The purpose of this requirement is not only to

ensure abstract fair play to the individual. Its

purpose, more particularly, is to protect his use

and possession of property from arbitrary

encroachment-to minimize substantively unfair or

mistaken deprivations of property....." Fuentes vy.

Shevin, 407 US, at 80-81,32 L Ed 2d 556, 92 §

Ct (1983)"

The question comes to mind that if Kahn did have an

Opportunity to explain to the trial court that he did not receive

notice of the original hearing, the judge might have dismissed the

case anyway.

iii

In Peralta v. Heights Medical Center, Inc., 485 US 80,

86, 99 L Ed 2d 75, 108 S Ct 896 (1988), this Court stated "it is

no answer to say that in this particular case due process of law

would have led to the same result because he had no defense on

the merits." Coe v. Armour Fertilizer Works, 237 US 413, 423,

59 L Ed 1027, 35 S Ct 625 (1915)

Moreover, as this Court emphasized in Clevelana Board

of Education v. Londermill, 470 U.S. 532, 543 (1985), notice

and an opportunity to be heard prior to the deprivation is

necessary "even if the facts are clear."

Thus this Court should grant the writ of certiorari,

whether or not the trial court would have ordered dismissal

because "only that would have wiped the slate clean. Only that

would have restored the petitioner to the position he would have

occupied had due process of law been accorded to him in the first

place." Armstrong v. Manzo, 380 US 545, 552, 14 L Ed 2d 62,

85 § Ct 1187 (1965)

B. Suppression of material evidence is a violation of Due

Process Clause of the Fourteenth Amendment

This Court should consider, that the Appellate Court's

suppression of material evidence is a much greater violation of

the Due Process Clause of the Fourteenth Amendment to the

United States Constitution than a prosecutor's violation of

suppressing material evidence. Brady v. Maryland, 373 US 83,

10 L Ed 2d 215, 83 S Ct 1194 (1963).

Here the Judiciary, whose job is to be fair and unbiased,

has chosen to suppress this evidence. This act of unfairness and

biased constitutes a denial of due process to a very high degree.

10

This Court stated in Kinsella v. United States ex rel.

Singleton, 361 U.S. 234, 4 L Ed. 2d 268, 80 S.Ct. 297 (1960),

that "Due process cannot create or enlarge power. * * * It has

to do, as taught by the Government's own cases, with the denial

of that fundamental fairness, shocking to the universal sense of

justice."

Certainly, the proceedings complained of here cannot be

characterized as fundamentally fair and the decisions in this case

are very shocking to the universal sense of justice.

CONCLUSION

For the foregoing reasons, this Court should grant the

petition for a writ of certiorari.

Respectfully

Burton Kahn

Petitioner pro-se

7003 Glen Trail

San Antonio, Texas 78239

Office (210) 599-9566

Fax (210) 599-9546

1]

APPENDICES

la

THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711 (512) 463-1312

April 25,1996

Mr. William H. Quirk, III Mr. Solomon H. Smith

Beckmann & Quirk Beckmann & Quirk.

1020 NE Loop 410, Suite 450 1020 NE Loop 410, Suite 450

San Antonio, TX 78209 San Antonio, TX 78209

Mr. Marc E. Gravely

Beckmann & Quirk

1020 NE Loop 410, Suite 450

San Antonio, Tx 78209-1218

RE: Case Number 95-1282

Style: BURTON KAHN

V.

BEICKER ENGINEERING, INC., DAVY L. BEICKER,

AND MICHAEL J. ZEZULA

Dear Counsel:

Today, the Supreme Court of Texas denied the above

referenced application for writ of error with the notation

"Writ Denied”.

Respectfully yours,

JOHN T. ADAMS, CLERK

BY:/s/Michael C.

Murphey, Deputy Clerk

CC: Mr. Burton Kahn

2a

Court of Appeals

Fourth District of Texas

San Antonio

xe RK KR R

OPINION

Appeal No. 04-94-00823-CV

Burton KAHN,

Appellant,

V.

BEICKER ENGINEERING, INC., Davy L. BEICKER

and Michael J. ZEZULA,

Appellees.

Appeal from the 166th District Court of Bexar County

Trial Court No. 94-CI-07723

Honorable Don McManus, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. Lopez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 18, 1995 AFFIRMED

This appeal arises out of the dismissal of Kahn's suit

for failure to amend his pleadings in accordance with the trial

court's order granting Beicker Engineering's, Inc., Davy L.

Beicker's, and Michael J. Zezula's (Beicker), special

exception. In seven points of error, Kahn argues that the trial

a Me

3a

court abused its discretion in granting Beicker' 5 special

exception and erred in dismissing his suit without adequate

notice. We affirm.

FACTS

Contour Construction, Kahn's employer, contracted with

Bexar County to build the Gardendale Community Center. To

reduce the cost of the project, Kahn suggested a design change,

which was approved by the county, for the concrete slab on the

ground. After the slab was in place, Bexar County and Contour

Construction began to argue over the adequacy of the slab. The

county hired Beicker to resolve the dispute. Beicker reported

that the slab did not meet certain specified criteria.

Kahn filed suit against Beicker based on correspondence

between Beicker and the county concerning the adequacy of the

concrete slab. According to Kahn, Beicker made "irresponsible

and intentional derogatory comments.,' After Kahn filed his

petition, Beicker filed its answer and then filed a First Amended

OCnginal Answer on July 29, 1994, that contained a special

exception. No fiat was attached to this answer. On August 3,

1994, Beicker filed another First Amended Original Answer that

included a fiat setting a hearing on his special exception. Both

answers were sent by certified mail, return receipt requested.

Due to Kahn's failure to appear at the special exception

hearing, the trial court sustained Beicker's special exception and

gave Kahn ten days to amend his petition with notice that failure

to do so would result in the petition being dismissed with

prejudice. Although he received the order granting the special

exception, Kahn failed to amend his pleadings. On August 25,

1994, the trial court dismissed Kahn's cause of action with

prejudice. |

4a

SPECIAL EXCEPTION

In his first four points of error, Kahn argues that the trial

court erred in granting Beicker's special exception because Rule

71, Tex. R. Civ. P., does not apply; it was a general demurrer,

the pleadings are of such detail that they can stand on their own;

and the pleadings include other causes of action besides libel. We

agree with Kahn that Rule 71 does not apply. We disagree,

however, with Kahn's other arguments.

In his Original Petition, Kahn sued Beicker for "libel,

commercial disparagement, trade libel, intentional infliction of

emotional distress, intentional interference with [Kahn's]

prospective business advantage and for malice ... ." He then gave

a summary of operative facts. Beicker generally denied ail the

allegations in his Original Answer and filed a special exception in

his First Amended Original Answer. The special exception states:

Defendants specially except to paragraph 2.4 and

paragraphs 3.1 through 3.7 of Plaintiffs Original

Petition, because Plaintiff falls to state a cause of action

for libel. ... However, the pleading totally fails to state a

legally cognizable cause of action for the reason that the

petition falls to allege, with any specificity, the elements

of the cause of action for libel. No allegedly defamatory

words employed by Defendants are identified. There is

no identification of any person(s) to whom the allegedly

defamatory words were published, nor on what date(s)

the publication(s) may have occurred.

The exception points out the particular pleading excepted to and

points out the defect in the plaintiffs pleading. See Tex. R. Civ.

P.91. Because Beicker specifically pointed out the defects in

Kahn's petition, it is not a prohibited general demurrer. Points of

error one and two are overruled.

Kahn also argues that his pleadings are of such detail that they

can stand on their own. Again, we disagree. In an action for libel,

"the petition must set out the particular defamatory words, or at

eGo

5a

least their substance and meaning." Murray V. Harris, 112

S.W.2d 1091, 1094 (Tex.Civ.App.-Amarillo 1938, writ dism'd);

Rio Grande Valley Gas Co. V. Caskey, 33 S.W.2d 848, 849-50

(Tex.Civ.App.-San Antonio 1930, no writ). Nowhere in Kahn's

petition does he inform the court of the libelous matter nor does

he set out the parts of the writing upon which the alleged libel is

based. Rio Grande Valley Gas Co., 33 S.W.2d at 849. In short,

we are left only with Kahn's opinions and conclusions as to the

libelous matter. We hold that the trial court did not abuse its

discretion in granting Beicker’s special exception and overrule

Kahn's third point of error. See Burgess V. El Paso Cancer

Treatment Ctr., 881 S.W.2d 552 (Tex.App,-El Paso 1994, writ

denied).

In his fourth point of error Kahn argues the trial court erred in

granting the special exception because the pleadings include

other causes of action besides libel. As Beicker points out,

however, this argument is presented for the first time on appeal

and therefore cannot be considered by this court. See McDuffle

V. Blassingame, 883 S.W.2d 329, 335 (Tex. App.-Amanillo

1994, writ denied); Tex. R. APP. P.52(a). Kahn's fourth point of

error is overruled.

DISMISSAL OF PLEADINGS

In his fifth point of error, Kahn argues that the trial court

erred in granting the special exception because he did not have

notice of the hearing. In Beicker's response to Kahn's Motion for

New Trial/Motion to Retain, Beicker attaches the green card

with the signature of Kahn's authorized agent, G. Davis,

appearing in the box marked Signature (Agent). Also attached is

an affidavit from Beicker’s lawyer and his legal assistant attesting

to the fact that the document (Defendant's First Amended

Original Answer, which contained the fiat setting a hearing on

Defendant's Special Exception) was mailed to Kahn. "When a

letter, properly addressed and postage prepaid, is mailed, there

6a

exists a presumption that the notice was duly received by the

addressee." Thomas V. Ray, 889 S.W.2d 237, 238 (Tex. 1994)

(orig. proceeding). The presumption may be rebutted with an

offer of proof of nonreceipt from the addressee. "In the absence

of any proof to the contrary, the presumption has the force of a

rule of law." /d. Kahn has failed to bring forth any verified proof

that he did not receive notice from Beicker and has therefore

failed to rebut the presumption that the document was received.

Id. Kahn's fifth point of error is overruled.

In his sixth point of error, Kahn argues that the trial court

erred in granting a dismissal without any motion or notice of a

hearing to dismiss. In the Order Granting Special Exception,

however, the trial court specifically states "in the event Plaintiff

fails to amend his Petition in conformity with this Order within

10 days from date hereof, this law suit shall be dismissed with

prejudice as to the refiling of same.,' Judge McManus signed this

order on August 12,1994. Kahn, who acknowledges receipt of

this document, was thus put on notice by the trial court as to the

consequences of not amending his pleadings. Accordingly,

Kahn's sixth point of error is overruled.

Finally, Kahn argues that the trial court erred in dismissing

because of the confusion caused by Beicker. Specifically he

argues that because he had no notice of Beicker's special

exception, he did not intentionally avoid the hearing. This

argument is also presented for the first time on appeal and,

therefore, cannot be considered by the appellate court. See

McDuffie V. Blassingame, 883 S.W.2d 329, 335 (Tex.App.-

Amarilio 1994, writ denied); Jex. R. App. P. 52(a). Kahn's

seventh point of error is overruled, and the judgment is affirmed.

Sarah B. Duncan Justice

Do Not Publish

7a

No.94-CI-07723

BURTON KAHN § IN THE DiSTRICT COURT OF

§

V. § BEXAR COUNTY, TEXAS

8

BEICKER ENGINEERING, §

INC.,DAVYL.BEICKER, §

AND MICHAEL J. ZEZULA § 166TH JUDICIAL DISTRICT

ORDER GRANTING SPECIAL EXCEPTION

On this day came on to be heard the Special Exception as

contained in Defendants' First Amended Original Answer

challenging the sufficiency of Plaintiff s Original Petition on

the grounds that Plaintiff has failed to state a legally

cognizable cause of action for libel.

The Defendants appeared by and through their respective

attorney. The Plaintiff, though duly notified pursuant to the

Texas Rules of Civil Procedure, failed to appear. The Court,

having heard the arguments of counsel for the Defendants and

having reviewed the pleading in question, has concluded and

finds that the Special Exception should be sustained.

It is therefore, ORDERED, ADJUDGED and DECREED

that the Special Exception made by the Defendants is

sustained.

It is further ORDERED that the Plaintiff amend his

Petition to state a legally cognizable cause of action for libel,

within 10 days from date hereof.

It is further ORDERED, ADJUDGED and DECREED

that in the event Plaintiff fails to amend his Petition in

conformity with this Order within 10 days from date hereof,

this law suit shall be dismissed with prejudice as to the

refiring of same.

SIGNED this 12th day of August, 1994.

/s/ Don McManus

Judge Presiding

8a

No.94-CI-07723

BURTON KAHN § IN THE DISTRICT COURT OF

§

V. § BEXAR COUNTY, TEXAS

§

BEICKER ENGINEERING, = §

INC., DAVY L.BEICKER, §

AND MICHAEL J. ZEZULA_ = § 166TH JUDICIAL DISTRICT

ORDER OF DISMISSAL

On the 12th day of August, 1994, this Court entered an

Order Granting Special Exceptions in which it ordered Plaintiff

to amend his Petition to state a legally cognizable cause of action

for libel within 10 days from the date of the Order. Plaintiff,

though duly notified of said Order, failed to amend his Petition

within said 10 day period.

It is, therefore, ORDERED, ADJUDGED and DECREED

by the Court that the above-entitled and numbered cause be and

the same is Dismissed with prejudice as to the refieng of same

and that all costs incurred herein be paid by the Plaintiff.

SIGNED and ENTERED this___ day of AUG 25 1994

/s/(Don McManus

Judge Presiding

APPROVED:

Beckmann & Quirk

A Professional Corporation

1020 N.E. Loop 410, Suite 450

San Antonio, Texas 78209

(210)822-6060 Telephone

(210)822-8446 Fax

By-:/s/ William H. Quirk, III

Texas State Bar No. 1643 8000

Attorneys for Defendants

a

9a

No.94-C]-07723

. BURTON KAHN § IN THE DISTRICT COURT OF

§

) V. § BEXAR COUNTY, TEXAS

| §

BEICKER ENGINEERING, = §

INC., DAVY L.BEICKER, §

AND MICHAEL J. ZEZULA_ § 166TH JUDICIAL DISTRICT

R MOTION FOR REINSTATEMENT

On the 21 st day of -September, 1994, came on to be

considered a Motion for Reinstatement filed by Plaintiff,

Burton Kahn. The Plaintiff appeared pro se, in person, and

the Defendants, Beicker Engineering, Inc., Davy L. Beicker

and Michael J. Zezula, appeared by their attorney of record.

After considering the arguments of Plaintiff and counsel for

the Defendants, it is the opnion of the Court that the Motion

for Reinstatement filed by Plaintiff be denied. It is therefore

ordered, adjudged and decreed that Plaintiffs Motion for

Reinstatement is hereby and in all things Denied.

Signed this 21st day of September 1994.

/S;/ Don McManus

Judge Presiding

BECKMANN & QUIRK

1020 N. E. Loop 41 0, Suite 450

San Antonio, Texas 78209

(210) 822-6060

(21 0) 822-8446

/s/ Marc Gravely

WILLIAM H. QUIRK, III

State Bar No. 16438000

MARC E. GRAVELY

State Bar No. 00787582

TT

10a

No.94-CI-07723

BURTON KAHN § INTHE DISTRICT COURT OF

§

V. § BEXAR COUNTY, TEXAS

8

BEICKER ENGINEERING, = §

INC., DAVY L.BEICKER, §

AND MICHAEL J. ZEZULA § 166TH JUDICIAL DISTRICT

RDER DENYING PLAINTIFF'

MOTION TO FOR NEW TRIAL

On the 14 the day of October, 1994 came on to be

considered a Motion for New Trial and Plaintiff's Second

Motion to Reinstate filed by Plaintiff, Burton Kahn. After

considering the arguments of Plaintiff and the counsel for the

Defendants, it is the opinion of the Court that a New Tnial

and Plaintiffs Second Motion to Reinstate is denied.

It is therefore ordered, adjudged and decreed that a New

Trial and Plaintiff's Second Motion to Reinstate be Denied.

Signed this the 14 day of October, 1994.

/s/ Don McManus

JUDGE PRESIDING

/s/ BURTON KAHN

/s/ Marc Gravely

lla

THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711 (512) 463-1312

5.1996

ay 31,

Mr. William H. Quirk, III Mr. Solomon H. Smith

Beckmann & Quirk Beckmann & Quirk

1020 NE Loop 410, Suite 450 1020 NE Loop 410, Suite 450

San Antonio, TX 78209 San Antonio, TX 78209

Mr. Marc E. Gravely

Beckmann & Quirk

1020 NE Loop 410, Suite 450

San Antonio, Tx 78209-1218

RE: Case Number 95-1282

Style) BURTON KAHN V. BEICKER ENGINEERING,

INC., DAVY L. BEICKER, AND MICHAEL J. ZEZULA

Dear Counsel:

Today, the Supreme Court of Texas overruled petitioner's

motion for rehearing of the application for writ of error in the

above styled case.

Respectfully yours,

JOHN T. ADAMS, CLERK

BY:/s/Michael C. Murphey, Deputy Clerk

CC: Mr. Burton Kahn

12a

COURT OF APPEALS

FOURTH COURT OF APPEALS DISTRICT

300 DOLOROSA, SUITE 3200

BEXAR COUNTY CRIMINAL JUSTICE CENTER

SAN ANTONIO, TEXAS 78205

HERB SCHAEFER, CLERK

December 18, 1995

Burton Kahn William H. Quirk, I |

7003 Glen Trail BECKMAN & QUIRK, P.C. |

San Antonio, TX 78239 1020N.E.Loop 410, Suite 450

San Antonio, TX 78209

Solomon H. Smith Marc E. Gravely

BECKMAN & QUIRK, P.C. BECKMAN & QUIRK, P.C.

1020 N.E. Loop 410, Suite 450 1020 N_E. Loop 410, Suite 450

San Antonio, TX78209 San Antonio, TX78209

RE: Court of Appeals Number: 04-94-00823-CV

Trial Court Case Number: 94-C]-07723

Style: Burton Kahn v. Beicker Engineering,Inc.;Davy L.

Beicker; and Michael J. Zezula

Dear Counsel:

The Appellant's Second Motion for Rehearing EN

BANC in the above styled and numbered cause has this date

been DENIED.

Very truly yours,

HERB SCHAEFER, CLERK

/s/ JOYCE WIATREK, DEPUTY CLERK

sini ,

BEE OEE EE Ee

13a

No.94-CI-07723

BURTON KAHN § INTHE DISTRICT COURT OF

§

V. § BEXAR COUNTY, TEXAS

§

BEICKER ENGINEERING, §

INC., DAVY L.BEICKER, §

AND MICHAEL J. ZEZULA § 166TH JUDICIAL DISTRICT

AFFIDAVIT OF BURTON KAHN, P.E.

THE STATE OF TEXAS

COUNTY OF BEXAR

BEFORE ME, the undersigned authority I on this day

personally appeared BURTON KAHN, who after being first

duly sworn, deposed and stated as follows:

"My name is BURTON KAHN, I am over the age of

eighteen years, am of sound mind, have never been convicted

of a felony or misdemeanor involving moral turpitude, and

otherwise capable of making this affidavit. All the facts

stated herein are with personal knowledge and are true and

correct.

I never recived a copy of the Special Exceptions and

Fiat for hearing on August 12, 1994.

Further, Affiant sayeth not.

/s/ BURTON KAHN,P.E.

SUBSCRIBED AND SWORN TO BEFORE ME on

the Sth day of September, 1994, to certify which, witness my

hand and seal of office.

My Commission Expires: 11-05-9

/s/ Aida Delgado

NOTARY PUBLIC, STATE OF TEXAS

l4a

COURT OF APPEALSFOURTH APPEALS

DISTRICT OF TEXAS SAN ANTONIO, TEXAS

I, HERB SCHAEFER, CLERK OF THE FOURTH

APPEALS DISTRICT, for the State of Texas, DO HEREBY

CERTIFY that the foregoing is a true and correct copy of the

original document in my Iawful custody and possession as

appears of record filed 12-28-94 in my oofice. Witness my

official hand and seal of office this 25th day of October 1995

HERB SCHAEFER, CLERK OF THE FOURTH

APPEALS DISTRICT, for the State of Texas.

168

By/s/ Elise Dixon

Deputy Clerk

15a

No.94-CI-07723

BURTON KAHN § INTHE DISTRICT COURT OF

§

V. § BEXAR COUNTY, TEXAS

§

BEICKER ENGINEERING, §

INC.,DAVYL.BEICKER, §

AND MICHAEL J. ZEZULA § 166TH JUDICIAL DISTRICT

PLAINTIFF'S MOTION TO REINSTATE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, BURTON KAHN who makes, files and serves

this Plaintiffs Motion to Reinstate cause and as grounds

therefore, shows the following:

IL

The dismissal is based on a non appearance at a Special

Exception Hearing and not amending Plaintiff's petition within

10 days of that hearing. Plaintiff attest that he never received the

Special Exceptions and the Fiat. Exhibit A.

Il

There were several letters in early August 1993 between

Plaintiff and Defendants regarding discovery. Some of these

letters were addressed with the wrong zip code. Exhibit B.

When the wrong zip code is on an envelope it is not properly

addressed as per Tex.R.Civ.P. 21(a).

Il

Plaintiff received the letter with the attached Order granting

Special Exceptions and called the Defendants attorney. Plaintiff

was told that he had sent the Fiat and special exceptions and had

a green card. Plaintiff sent letter dated August 21, 1993 Exhibit

C regarding the problem. Plaintiff requested Defendant to send

another copy to resolve the problem. Instead of responding

Defendant sent the copy of a dismissal order.

l6a

WHEREFORE, premises considered, plaintiff prays the court to

grant this motion to reinstate on the ground that Plaintiff was

not notified in accordance with Tex.R.Civ.P. 21(a).

Respectfully submitted,

/s) BURTON KAHN

Attorney Pro-Se

P.O. Box 35382

San Antonio, Texas 78235

Off (210) 532-6957

Fax (210) 532-4717

CERTIFICATE OF SERVICE

I hereby certify true and correct copies of this document have

been served on all counsel of record pursuant to Rule 21a, Texas

Rules of Civil Procedure.

DATE:

_/s/BURTON KAHN

Beckmann & Quirk

1020 N.E. Loop 410, Suite 450

San Antonio, Texas 78209

Off (210) 822-6060

Fax (210) 822-8446