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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 965

## Text

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,
Pee Ae ts WUE Oe ae FRM CED vanes cccksccncesescavccecexcsssscsenss 7
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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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1386%3A1. Public record. Not legal advice.