No. 05-l CV IN THE AT DALLAS, TEXAS NICHOLAS KOSTECHKO, Appellant, vs. MEHRDAD MAZAHERI, M.D., Appellee. PALMER & MANUEL, L.L.P.

Transcription

1 No. 05-l CV IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS, TEXAS NICHOLAS KOSTECHKO, Appellant, vs. MEHRDAD MAZAHERI, M.D., Appellee. Appealed from the 298th Judicial District Court of Dallas County, Texas BRIEF OF APPELLEE MEHRDAD MAZAHERI, M.D. PALMER & MANUEL, L.L.P. By:J; Jeffrey R,Sandberg State Bar No isandbeigi pamlaw corn 8350 N. Central Expressway; Suite 1111 Dallas, Texas (214) /Fax (214) COUNSEL FOR APPELLEE MERHDAD MAZAHERI, M.D. ORAL ARGUMENT REQUESTED

2 No. lo cv IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS, TEXAS NICHOLAS KOSTECHKO, Appellant, vs. MEHRDAD MAZAHERI, M.D., Appellee. Request for Oral Argument Appellee Mehrdad Mazaheri, M.D. hereby requests oral argument in this case. This appeal involves numerous complex issues, and oral argument will assist Mazaheri in the presentation of Mazaheri s arguments and responding to questions the Court may have. :1.1

3 TABLE OF CONTENTS REQUEST FOR ORAL ARGUMENT. ii TABLE OF CONTENTS iii TABLE OF AUTHORITIES vii INTRODUCTION 1 STATEMENT OF THE CASE 2 ISSUES PRESENTED FOR REVIEW 3 STATEMENT OF FACTS 4 A. Kostechko s Misrepresentations and Violations of the Texas DTPA 4 B. The Court Clerk Served Kostechko With the Citation and Original Petition 4 C. Kostechko Intentionally Did Not File an Answer and a Default Judgment Was Entered on March 17, D. Kostechko Filed a Motion for New Trial Arguing the Court Clerk Lacked the Authority to Serve a Defendant By Certified Mail, Return Requested, But Did Not Pay the Filing Fee 5 SUMMARY OF ARGUMENT 6 A. Because Kostechko Did Not File His Notice Of Appeal Within 90 Days After The Default Judgment Was Filed, This Court Lacks Jurisdiction 6 B. Kostechko Cannot Complain About Defects in the Return of Service Because Kostechko Repeatedly Admits Facts in his Motion for New Trial, Affidavit and Brief Proving He Was Duly Served. (CR43) 6 C. The Signature of the Court Clerk on the Return of Service is Not Required to Be Verified 8 D. Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested as Permitted By Chapter 17 of the Texas Civil Practice and Remedies Code, the Trial Court Properly Entered the Default Judgment 8 iii

4 E. Because Kostechko Affirmatively Chose To Ignore The Citation And Petition And Forego Filing An Answer, Kostechko Fails The Craddock Test And The Trial Court Properly Did Not Grant Kostechko s Motion For New Trial 9 F. Because Kostechko Did not Pay the Filing Fee for the Motion for New Trial, The Trial Court Properly Did Not Grant Kostechko s Motion For New Trial 9 G. Because Kostechko Chose Not to Request a Reporter s Record of the Hearing on Kostechko s Motion for New Trial, Kostechko has Waived His Complaints... 9 BRIEF OF ARGUMENT 10 RESPONSE ISSUE ONE (Restated) 10 Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested, as Permitted By Rule 108 of the Texas Rules of Civil Procedure, the Trial Court Properly Entered the Default Judgment. (CR12, 28; App.) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE ONE 10 A. Like Other Officers, A District Clerk s Service Of Process By Certified Mail Does Not Require A Verified Return Of Service 10 B. Because The Reason For Requiring Verification Is To Establish The Truth Of The Information In The Return, There Is No Reason To Require The Court Clerk To Verify The Return 11 C. Rule 108 Requires A Party, Not A Court Clerk Or Other Officer Of The Court, To Verify The Return 12 D. Kostechko Was Properly Served By The Clerk By Certified Mail And Admits He Signed The Green Card. 13 E. Because Court Clerks are Authorized to Take Oaths, Even if a Verified Return was Required, this Requirement Has Been Met 13 RESPONSE ISSUE TWO (Restated) 14 Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested as Permitted By Chapter 17 ofthe Texas Civil Practice arid Remedies Code, the Trial Court Properly Entered the Default Judgment. (CR12; App.) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE TWO 14 A. Applicable Law - Jurisdiction Over Nonresidents 14 iv

5 B. The Requirements For Substituted Service Upon The Texas Secretary Of State Are Inapplicable Because Kostechko Was Not Served Via Substituted Service Upon The Secretary Of State 14 C. Because Mazaheri Alleged Jurisdictional Facts in Mazaheri s Original Petition, Mazaheri Complied With the Requirements of Section of the Texas Civil Practice and Remedies Code 15 RESPONSE ISSUE THREE (Restated) 15 Because Kostechko Affirmatively Chose To Ignore The Citation And Petition And Forego Filing An Answer, Kostechko Fails The Craddock Test And The Trial Court Properly Did Not Grant Kostechko s Motion For New Trial. (CR28, 30) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE THREE 16 A. Applicable Law The Craddock Requirements For Motions for New Trial A Belief the Defendant Cannot be Held Liable Fails the Craddock Test A Defendant s Belief That No Answer Needed to Be Filed Fails the Craddock Test 18 B. Kostechko Admits That Kostechko Intentionally Did Not Answer 19 RESPONSE ISSUE FOUR (Restated) 19 Kostechko Cannot Complain About Defects in the Return of Service Because Kostechko Admits Facts in his Motion for New Trial, Affidavit and Brief Proving Kostechko Was Duly Served. (CR43) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE FOUR 19 Admission of Facts Establishing Proper Service. 19 A. Applicable Law Defendant s B. Kostechko s Motion for New Trial, Affidavit and Brief All Contain Admissions of Facts Establishing that Kostechko Was Property Served Kostechko s Motion for New Trial Admits Facts Establishing Kostechko Was Property Served Kostechko s Affidavit Admits Facts Establishing Kostechko Was Properly Served Kostechko s Brief Admits Facts Establishing Kostechko Was Properly Served 22 V

6 C. Kostechko s Admissions of the Facts Showing that Kostechko Was Properly Served Meet the Judicial Admissions Standard 23 RESPONSE ISSUE FIVE (Restated) 24 Because Kostechko Did Not File His Notice Of Appeal Within 90 Days After The Default Judgment Was Filed, This Court Lacks Jurisdiction. (CR28, 65; App.) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE FIVE 24 RESPONSE ISSUE SIX (Restated) 25 Because Kostechko Did Not Pay the Fee for Kostechko s Motion for New Trial, The Trial Court Did Not Err When It Did Not Grant the Motion. (TR3O; 70) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE SIX 25 RESPONSE ISSUE SEVEN (Restated) 26 Because Kostechko Expressly Chose Not to Request and File a Reporter s Record of the Hearing on Kostechko s Motion for New Trial, Kostechko has Waived His Complaints. (CR60) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE SEVEN 26 PRAYER 27 CERTIFICATE OF SERVICE 28 APPENDIX Clerk s Record Excerpts: CR12 Citation and Return CR28 Default Judgment Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990). First Nat? Bank v. Peterson, 709 S.W.2d 276 (Tex. App.--Houston [14th Dist.] 1986, writ ref d, n.r.e.). vi

7 TABLE OF AUTHORITIES CASES: PAGE Beck v. Palacios, 813 S.W.2d 643 (Tex. App. Houston [14 th Dist.] 1991, no writ) 19 Biyant v. United Short/me, Inc. Assur. Servs., NA., 972 S.W.2d 26 (Tex. 1998) 26, 27 Chon Triv.J.T.T., 162 S.W.3d 552 (Tex. 2005) 26 City ofsan Antonio v. Hardee, 70 S.W.3d 207 (Tex. App. San Antonio 2001, no pet.) 23 Cont 1 Cas. Co. v. Guzman, 2009 Tex. App. LEXIS 338 (Tex. App.--San Antonio Jan. 21, 2009) 11 Cortland Line Co., Inc. v. Israel, 874 S.W.2d 178 (Tex. App. Houston [14 th Dist.j 1994, writ denied) 18 Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939) 9, 16, 17 First Nat 1 Bank v. Peterson, 709 S.W.2d 276 (Tex. App.--Houston [14 th Dist.] 1986, writ ref d, n.r.e.). 6, 20, 21 Garza v. Garcia, 137 S.W.3d 36 (Tex. 2004) 9,25 Goodman v. Wachovia Bank, N.A., 260 S.W.3d 699 (Tex. App. Dallas 2008, no pet.) 11 Holt Atherton Industries, Inc. V. Heine, 835 S.W.2d 80(Tex. 1992) 16,17,18,19 Hurst v. A.R.A. Manufacturing Co., 555 S.W.2d 141 (Tex. Civ. App.--Fort Worth 1977 writ ref d n.r.e.) 20, 21 In the Interest ofr.r., 209 S.W.3d 112 (Tex. 2006) 17, 19 vii

8 Ins. Co. of the State ofpennsylvania v. Lejeune, 261 S.W.3d 852 (Tex. App.--Texarkana 2008), rev ci on other grounds, 297 S.W.3d 254 (Tex. 2009).) 11 Kent v. State, 982 S.W.2d 639 (Tex. App. Amarillo 1998, pet. ref d., untimely filed) 27 Myan Mgmt. Group, Li. C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750 (Tex. App. Dallas, 2009, no pet.) 11, 12 Novosad v. Cunningham, 38 S.W.3d 767 (Tex. App. Houston {14 th Dist.) 2001, no pet.) 18 Regency Advantage Ltd. Pshp. V. Bingo Idea- Watauga, 936 S.W.2d 275 (Tex. 1996) 23 Rittenhouse v. Sabine Valley Ctr. Found., 161 S.W.3d 157 (Tex. App.--Texarkana 2005, no pet.) 26 Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311 (Tex. App. San Antonio 2007, pet dism d) 25 Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559 (Tex. 2005) 6,24 Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) 6, 19 STATUTES PAGE TEX. CIV. PRAC. & REM. CODE TEX. CIV. PRAC.& REM. CODE ,15 TEx. Gov T. CODE TEx. GOV T. CODE TEx. Gov T. CODE viii

9 TEX. R. App. P TEx. R. App. P ,24 TEx. R. App. P TEX. R. Civ. P , 8, 10, 12, 22, 23 TEX. R. Civ. P , 10 TEx. R. Civ. P , 10 TEx. R. Civ. P , 10, 12, 13 TEX. R. Civ. P. 324(b) 9, 25 ix

10 No. lo cv IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS, TEXAS NICHOLAS KOSTECHKO, Appellant, vs. MEHRDAD MAZAHERI, M.D., Appellee. BRIEF OF APPELLEE MEHRDAD MAZAHERI, M.D. TO THE COURT OF APPEALS: Appellee Mehrdad Mazaheri, M.D. ( Mazaheri or Appellee ), submits this Appellee s Brief. Appellant Nicholas Kostechko will be referred to as Kostechko or Appellant. 1

11 STATEMENT OF THE CASE On August 17, 2009, Mazaheri filed suit against Kostechko for fraud, negligent misrepresentation and violating the Texas Deceptive Trade Practices Act. (CR6 ) After being served by the court clerk via certified mail, return receipt requested, Kostechko did not file an answer. (CR1, 12) On March 17, 2010, the trial court entered its Final Default Judgment in favor of Mazaheri and against Kostechko (CR28; App.) On April 16, 2010, Kostechko filed a Motion for New Trial. (CR30) Kostechko filed a Notice of Appeal on June 30, (CR65) References to the appellate record will be made as follows: App.- Appendix to Brief CR- Clerk s Record 2

12 RESPONSE ISSUES PRESENTED FOR REVIEW RESPONSE ISSUE ONE Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested, as Permitted By Rule 108 ofthe Texas Rules of Civil Procedure, the Trial Court Properly Entered the Default Judgment. (CR12, 28; App.) RESPONSE ISSUE TWO Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested as Permitted By Chapter 17 of the Texas Civil Practice and Remedies Code, the Trial Court Properly Entered the Default Judgment. (CR12; App.) RESPONSE ISSUE THREE Because Kostechko Affirmatively Chose To Ignore The Citation And Petition And Forego Filing An Answer, Kostechko Fails The Craddock Test And The Trial Court Properly Did Not Grant Kostechko s Motion For New Trial. (CR28, 30) RESPONSE ISSUE FOUR Kostechko Cannot Complain About Defects in the Return of Service Because Kostechko Admits Facts in his Motion for New Trial, Affidavit and Brief Proving Kostechko Was Duly Served. (CR43) RESPONSE ISSUE FIVE Because Kostechko Did Not File His Notice Of Appeal Within 90 Days After The Default Judgment Was Filed, This Court Lacks Jurisdiction. (CR28, 65; App.) RESPONSE ISSUE SIX Because Kostechko Did Not Pay the Fee for Kostechko s Motion for New Trial, The Trial Court Did Not Err When It Did Not Grant the Motion. (TR3O; 70) RESPONSE ISSUE SEVEN Because Kostechko Expressly Chose Not to Request and File a Reporter s Record of the Hearing on Kostechko s Motion for New Trial, Kostechko has Waived His Complaints. (CR60) 3

13 STATEMENT OF FACTS A. Kostechko s Misrepresentations and Violations of the Texas DTPA. Mazaheri is a Texas resident and provides Lasik/ophthalmic medical services to patients in Dallas County, Texas at all relevant times. Defendant Kostechko was the representative of Hillside Finance International, LP ( HFI ) regarding a proposed Master Lease Agreement and related documents (collectively, the Lease ) between Mazaheri and HFI. Prior to Mazaheri s execution of the Lease, Defendant Kostechko represented to Mazaheri that Mazaheri could purchase the equipment that was the subject of the Lease (the Equipment ), from HFI at a reduced price at the conclusion of the lease term. Kostechko also represented to Mazaheri the Lease contained a purchase option for Mazaheri to purchase the Equipment at a reduced price from HFI at the conclusion of the lease term. (CR7-8) In reliance upon Kostechko s representations, Mazaheri entered into the Lease with HFI. Subsequently, Mazaheri learned that Kostechko s representations to Mazaheri were false. As a result, Mazaheri was injured, as Mazaheri was subsequently not permitted to purchase the Equipment from HFI s assignee at the conclusion of the lease term. (CR8) B. The Court Clerk Served Kostechko With the Citation and Original Petition. Mazaheri filed his Original Petition on August 17, (CR6) The court clerk issued the Citation and sent the Citation and Petition to Kostechko via certified mail, return receipt requested. (CR12; App.) Kostechko signed the green card indicating that Kostechko received the Citation and Petition. (CR13-15) The court clerk signed the Return of Service, and it was filed on September 1, (CR12; App.) 4

14 C. Kostechko Intentionally Did Not File an Answer and a Default Judgment Was Entered on March 17, Kostechko admits that he chose not to file an answer. (CR44) More than six months after the Return of Service was filed by the court clerk on September 1, 2010, the trial court entered a Default Judgment against Kostechko on March 17, (CR28) D. Kostechko Filed a Motion for New Trial Arguing the Court Clerk Lacked the Authority to Serve a Defendant By Certified Mail, Return Requested, But Did Not Pay the Filing Fee. Kostechko s Motion for New Trial first argues that nonresident defendants may be served with process solely by substituted service upon the Texas Secretary of State. (CR31-32) Kostechko next argues in his motion that Mazaheri did not include the necessary allegations to support substituted service upon the Texas Secretary of State. (CR33-34) Finally, Kostechko argues in this motion that he meets the Craddock v. Sunshine Bus Lines standard for obtaining a new trial, while also admitting that he intentionally chose not to file an answer. (CR39, 44) Kostechko did not pay the filing fee for the motion for new trial. (CR71) No written rulings were entered on Kostechko s Motion for New Trial. 5

15 SUMMARY OF ARGUMENT B. Because Kostechko Did Not File His Notice Of Appeal Within 90 Days After The Default Judgment Was Filed, This Court Lacks Jurisdiction. If any party timely files a motion for new trial, a notice of appeal must be filed within 90 days after the judgment is signed. TEx. R. App. P If no notice of appeal is timely filed, the appellate court lacks jurisdiction over the appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005). The default judgment was entered on March 17, 2009 (CR28; App.) and Kostechko did not file his Notice of Appeal until June 30,2010. (CR65) Because Kostechko did not file his Notice of Appeal within 90 days after the Default Judgment was filed, this Court lacks jurisdiction. See TEX. R. App. P B. Kostechko Cannot Complain About Defects in the Return of Service Because Kostechko Repeatedly Admits Facts in his Motion for New Trial, Affidavit and Brief Proving He Was Duly Served. (CR43) Kostechko argues that the court clerk is required to verify the return of service when the court clerk serves a defendant by certified mail, return receipt requested. Kostechko has waived this complaint, as a defendant that admits facts establishing the defendant was properly served has waived the complaint of defective service. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (citing First Nat l Bankv. Peterson, 709 S.W.2d 276, 280 (Tex. App.- Houston [14th Dist.] 1986, writ ref d, n.r.e.).). (Both the Wilson opinion and the First National Bank opinions are included in the Appendix to this Brief for the Court s convenience.) 6

16 In his Motion for New Trial, Kostechko admits that [o]n or about August 28, 2009, Kostechko received the Certified Mail (a defined tenn which Kostechko uses to mean the citation and a copy ofthe petition that Mazaheri instructed the clerk ofthe court to transmit directly to Kostechko at his residence in San Clemente, California by certified mail, return receipt requested ) directly from the clerk of the court. (CR30) Further, Kostechko admits the clerk of this [district] court transmitted the citation and a copy of the Petition directly to Kostechko in California by certified mail, return receipt requested. (CR37-38) In his Affidavit, Kostechko admits that [o]n or about August 28, 2009,1 received an envelope by certified mail, return receipt requested, in the United States mail containing the citation and a copy of the petition in the Cause [the lawsuit that is the subject of this appeal] (the Certified Mail ) (CR43-44). On page 7 of his Appellant s Brief, Kostechko admits: On or about August 18, 2009, the clerk transmitted the Citation to Kostechko by certified mail, return receipt requested, at 3026 Calle Frontera, San Clemente, California (CRI2-l3). On or about August 26, 2009, Kostechko received the Citation by certified mail, return receipt requested, and signed the green card reflecting receipt (CR15). Thus, Kostechko admits that Kostechko received the Certified Mail the Citation and Petition - from the clerk of the court. The clerk of the court is authorized to serve a citation and petition via certified mail, return receipt requested. TEx. R. CIV. P Because Kostechko admits facts establishing Kostechko was properly served by the court clerk, Kostechko cannot complain in this appeal that the Return of Service was not verified, assuming, arguendo, the Return of Service was required to be verified. 7

17 C. The Signature of the Court Clerk on the Return of Service is Not Required to Be Verified. The court clerk s office is not required to verify the return of service because the clerk s office is separately empowered to serve defendants by certified mail in rule 103, and is thus not an authorized person or party under rule 108 that would be required to verify the return of service. See TEx. R. Civ. P. 103, 107, 108. The District Clerk s office served Kostechko by certified mail, return receipt requested, Kostechko signed the green card and the District Clerk s office executed the return of service. (CR12, 13) The rules of civil procedure distinguish the use of party in rule 108 from officer just as authorized person is distinguished from officer when applying rule 107 private process servers must execute a sworn return of service, but officers of the court such as court clerks and sheriffs/constables are not required to execute a verified return of service. See Tex. R. Civ. P. 103, 107, 108. Finally, even if a verification of the court clerk s signature on the return of service was required, this requirement has been met. The deputy clerk signed the Return of Service, and the District Clerk s stamp is present on both the Citation and the Return of Service. D. Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested as Permitted By Chapter 17 of the Texas Civil Practice and Remedies Code, the Trial Court Properly Entered the Default Judgment. Appellant Kostechko also appears to be arguing that Mazaheri s Original Petition failed to include the allegations needed to support substituted service upon the Texas Secretary of State. The requirements for substituted service upon the Texas Secretary of State 8

18 are inapplicable because Kostechko was not served via substituted service upon the secretary of state; thus sections and are not applicable. Because Mazaheri alleged jurisdictional facts in Mazaheri s Original Petition, Mazaheri complied with the requirements of section of the Texas Civil Practice and Remedies Code. E. Because Kostechko Affirmatively Chose To Ignore The Citation And Petition And Forego Filing An Answer, Kostechko Fails The Craddock Test And The Trial Court Properly Did Not Grant Kostechko s Motion For New Trial. Kostechko argues the trial court erred because it did not grant Kostechko s motion for new trial. Kostechko argues his motion meets the Craddock v. Sunshine Bus Lines standard. Nonetheless, Kostechko s admission that Kostechko intentionally chose not to file an answer (CR44) establishes that Kostechko fails the Craddock standard. F. Because Kostechko Did not Pay the Filing Fee for the Motion for New Trial, The Trial Court Properly Did Not Grant Kostechko s Motion For New Trial. The District Clerk s Costs Bill shows that Kostechko did not pay the filing fee for the motion for new trial. (CR71) When a party timely files a motion for new trial but fails to pay the filing fee, the trial court is not required to consider it. Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004). As a result, Kostechko has not made a proper complaint to the trial court and cannot complain to this Court that the motion for new trial should have been granted. See TEX. R. Civ. P. 324(b). G. Because Kostechko Chose Not to Request a Reporter s Record of the Hearing on Kostechko s Motion for New Trial, Kostechko has Waived His Complaints. Because Kostechko did not request the Reporter s Record, Kostechko cannot complain that the trial court failed to grant Kostechko s motion for new trial. 9

19 BRIEF OF ARGUMENT RESPONSE ISSUE ONE (Restated) Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested, as Permitted By Rule 108 of the Texas Rules of Civil Procedure, the Trial Court Properly Entered the Default Judgment. (CR12, 28; App.) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE ONE While other authorized persons are required to have verified signatures for the return of service under rule 108, the clerk s office is not required to verify the return of service because the clerk s office is separately empowered to serve defendants by certified mail in rule 103, and is thus not an authorized person under rule 108 that would be required to verify the return of service. See TEX. R. Civ. P. 103, 107, 108. The District Clerk s office served Kostechko by certified mail, return receipt requested, Kostechko signed the green card and the District Clerk s office executed the return of service. (CR12, 13) A. Like Other Officers, A District Clerk s Service Of Process By Certified Mail Does Not Require A Verified Return Of Service. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. TEX. R. Civ. P Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by... (2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto. TEX. R. Civ. P District clerks and officers, unlike authorized 10

20 persons, are not required to verify the return of service. Myan Mgmt. Group, L.L. C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 752 (Tex. App.--Dallas 2009, no pet.) ( Rule 107 does not require an officer to verify the return. ). Similarly: Continental contends service of citation is defective because the return of citation is not verified as required by Rule 107 of the Texas Rules of Civil Procedure. Verification, however, was not required in this instance. Service was accomplished by certified mail, and the return was signed by the district clerk. District clerks, like sheriffs and constables, are considered officers -- persons who, by virtue of their offices, are not required to verify returns. Con?! Cas. Co. V. Guzman, 2009 Tex. App. LEXIS 338, (Tex. App. San Antonio Jan. 21, 2009) (quoting Ins. Co. of the State ofpennsylvania. v. Lejeune, 261 S.W.3d 852, 859 (Tex. App.--Texarkana 2008), rev d on other grounds 2, 297 S.W.3d 254 (Tex. 2009).). Notably, the Lejeune Court held that the Insurance Co. of the State of Pennsylvania was properly served even though the court clerk did not verify the return. Ins. Co. ofthe State of Pennsylvania, 261 S.W.3d at 859. B. Because The Reason For Requiring Verification Is To Establish The Truth Of The Information In The Return, There Is No Reason To Require The Court Clerk To Verify The Return. [Tjhe purpose of the rule 107 verification is to establish the truth of the information in the return, not to establish the identity of the person signing the return. Goodman v. Wachovia Bank, N.A., 260 S.W.3d 699, 702 (Tex. App.--Dallas 2008, no pet.). There is no 2 The Texas Supreme Court reversed the appellate court, holding that the return of service was defective because the clerk s endorsement of the return of citation lacked the time of service, as required by Rules 16 and 105 of the Texas Rules of Civil Procedure. 11

21 in legitimate reason for requiring a court clerk to swear to the truth of the information in the return fact, the policy is that court clerks are NOT required to swear to the information in the return. See Tex. R. Civ. P. 103; Myan Mgmt. Group, L.L.C., 292 S.W.3d at 752. C. Rule 108 Requires A Party, Not A Court Clerk Or Other Officer Of The Court, To Verify The Return. Where the defendant is absent from the State, or is a nonresident of the State, the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant; and such notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106 hereof. TEX. R. Civ. P The return of service in such cases shall be endorsed on or attached to the original notice, and shall be in the form provided in Rule 107, and be signed and sworn by the party making such service before some officer authorized by the laws of this State to take affidavits, under the hand and official seal of such officer. TEX. R. CIV. P. 108 (emphasis added). The same analysis distinguishes the use of party in rule 108 from officer just as authorized person is distinguished from officer private process servers must execute a sworn return of service, but officers of the court such as court clerks and sheriffs/constables are not required to execute a verified return of service. See Tex. R. Civ. P. 103; Myan Mgint. Group, L.L.C., 292 S.W.3d at 752. As a result, the signature of the court clerk on the Return of Service in this dispute was not required to be verified. 12

22 B. Kostechko Was Properly Served By The Clerk By Certified Mail And Admits He Signed The Green Card. Contrary to Defendant s arguments and reliance upon the long-arm statutory provisions regarding substituted service, court clerks may serve nonresidents by certified mail as authorized by rules 103, 106 and 108 of the Texas Rules of Civil Procedure. Defendant in this case was served by certified mail. (CR12) Further, Defendant admits at the bottom of page 1 of Defendant s Motion that [ojn or about August 28, 2009, [Defendant] Kostechko received the Certified Mail directly from the clerk of the court. (CR30) E. Because Court Clerks are Authorized to Take Oaths, Even if a Verified Return was Required, this Requirement Has Been Met. In Texas, a clerk of a court of record is authorized to take an oath, including an oath in an affidavit. TEx. GOv T CODE , A deputy clerk may perform in the name of the district clerk all official acts of the office of district clerk. TEx. Gov T CODE (a). The second page of the Citation labeled Officer s Return - is signed by J0 Ann Gardner. (CR13; App.) Jo Ann Gardner is identified as a Deputy Clerk of the District Court. (CR12; App.) The seal of the District Clerk, Gary Fitzsimmons, appears above Ms. Gardner s signature on the Officer s Return (CR13; App.) as well as her signature on the first page of the Citation form. (CR12; App.) Both pages of the Citation are signed and sworn to by Ms. Gardner, a deputy clerk that is authorized to take oaths/affidavits. As a result, even if a verification of the court clerk s signature on the return of service was required, this requirement has been met. See TEx. R. Civ. p

23 RESPONSE ISSUE TWO (Restated) Because the District Clerk s Office Properly Served Kostechko Via Certified Mail, Return Receipt Requested as Permitted By Chapter 17 of the Texas Civil Practice and Remedies Code, the Trial Court Properly Entered the Default Judgment. (CR12; App.) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE TWO A. Applicable Law - Jurisdiction Over Nonresidents. Nonresident includes: an individual who is not a resident of this state. TEx. Civ. PRAC. & REM. CODE (1). In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident: (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; [or] (2) commits a tort in whole or in part in this state. TEx. Civ. PRAC. & REM. CODE B. The Requirements For Substituted Service Upon The Texas Secretary Of State Are Inapplicable Because Kostechko Was Not Served Via Substituted Service Upon The Secretary Of State. At page 15 of Appellant s Brief, Appellant Kostechko appears to be arguing that Mazaheri failed to allege: (1) the defendant is a nonresident of the state who engages in business in the state; (2) the defendant does not maintain a regular place of business in the state; (3) the defendant does not maintain a designated agent for service of process; and (4) the defendant s home or home office, which are found in sections and concerning substituted service upon the Secretary of State. Because Defendant was not served via substituted service upon the Texas Secretary of State, sections and 14

24 are not applicable. Mazaheri was not required to include the required information needed to support substituted service upon the Texas Secretary of State because Mazaheri did not serve Kostechko via substituted service upon the Texas Secretary of State. C. Because Mazaheri Alleged Jurisdictional Facts in Mazaheri s Original Petition, Mazaheri Complied With the Requirements of Section of the Texas Civil Practice and Remedies Code. Notably, acts that constitute doing business in Texas occur when the nonresident: (I) contracts with a Texas resident and either party is to perform the contract in whole or in part in this state; or (2) commits a tort in whole or in part in this state. TEx. Civ. PRAC. & REM. CODE If this Court should treat Kostechko s argument as an argument regarding section , Kostechko s argument ignores the jurisdictional facts sufficient to meet the requirements of section that are alleged in Section III, page 5 of Mazaheri s Petition: This Court has jurisdiction over the Defendant because the Defendant purposefully availed itself of the privilege of conducting activities in the State of Texas and established minimum contacts sufficient to confer jurisdiction over said Defendant, and the assumption of jurisdiction over the Defendant will not offend traditional notions of fair play and substantial justice and is consistent with the constitutional requirements of due process. The Defendant s continuous and systematic business contacts in Texas constitutes doing business in Texas and makes the Defendant subject to the jurisdiction of the Texas Courts and amenable to process issued by this Court pursuant to Texas Civil Practice and Remedies Code et. seq. As shown below, this Court has jurisdiction over the Defendant because the Defendant engaged in business by making representations regarding a lease contract with a Texas resident, and the terms of such contract were to be performed in whole or in part in Texas by the parties to such contracts, including the placement of personal property at a location in Dallas County, Texas by the lessor. Further, this Court has jurisdiction over the Defendant because the Defendant committed a tort, which is the subject of this suit, in whole or in part in Texas. 15

25 Mazaheri is a Texas resident and provides Lasik!ophthalmic medical services to patients in Dallas County, Texas at all relevant times. Defendant Kostechko was the representative of Hillside Finance International, LP ( HFI ) regarding a proposed Master Lease Agreement and related documents (collectively, the Lease ) between Mazaheri and HFT. Prior to Mazaheri s execution of the Lease, Defendant Kostechko represented to Mazaheri that Mazaheri could purchase the equipment that was the subject of the Lease (the Equipment ), from HFI at a reduced price at the conclusion of the lease term. Kostechko also represented to Mazaheri the Lease contained a purchase option for Mazaheri to purchase the Equipment at a reduced price from HFI at the conclusion of the lease term. In reliance upon Kostechko s representations, Mazaheri entered into the Lease with HFI. Subsequently, Mazaheri learned that Kostechko s representations to Mazaheri were false. As a result, Mazaheri was injured, as Mazaheri was subsequently not permitted to purchase the Equipment from HFI s assignee at the conclusion of the lease term. (CR7-8, Plaintiff s Original Petition) In conclusion, Mazaheri s Original Petition alleges sufficient facts to comply with section ISSUE THREE (Restated) Because Kostechko Affirmatively Chose To Ignore The Citation And Petition And Forego Filing An Answer, Kostechko Fails The Craddock Test And The Trial Court Properly Did Not Grant Kostechko s Motion For New Trial. (CR28, 30) ARGUMENT AND AUTHORITIES FOR ISSUE THREE Kostechko next argues that Kostechko s Motion for New Trial met Kostechko s burden of proof under Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939). Because Kostechko s decision to ignore the Petition and Citation, even if it were truly based upon a belief that Kostechko did not need to file an answer, affirmatively shows that 16

26 Kostechko fails to meet the Craddock standard for obtaining a new trial, the trial court properly did not grant Kostechko s motion for new trial. A. Applicable Law The Craddock Requirements For Motions For New Trial. Under Craddock, the defendant must demonstrate that (1) the defendant s failure to appear was not intentional or the result of conscious indifference; (2) there is a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury to the opposing party. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939). Conclusory allegations are insufficient. HoltAtherton Industries, Inc. V. Heine, 835 S.W.2d 80, 82 (Tex. 1992). 1. A Belief the Defendant Cannot Be Held Liable Fails the Craddock Test. The Texas Supreme Court has made it clear that a belief the defendant cannot be held liable is insufficient to satisfi the unintentional/lack of conscious indifference prong ofthe Craddock test. Holt Atherton Industries, mc, 835 S.W.2d at ( The essence of Holt Atherton s evidence is that it did not file an answer because Stevenson Atherton did not think Holt Atherton could possibly be held liable. ). Not understanding a citation and then doing nothing following service does not constitute a mistake of law that is sufficient to meet the Craddock requirements. In the Interest of R.R., 209 S.W.3d 112, 115 (Tex. 2006) (cit. omitted). Similarly, the Fourteenth District Court of Appeals, faced with the argument by a defaulting defendant that believed the automatic bankruptcy stay prevented liability, affirmed the default judgment: 17

27 The essence of Novosad s evidence is that he did not file an answer because Novosad s attorneys did not think Novosad individually could possibly be held liable due to the automatic stay provisions of the bankruptcy law. See Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, (Tex. 1992) uncontested conclusory allegations are insufficient to show accident or mistake; failure to file answer because appellant and his agents thought they could not possibly be liable was not mistake or accident under first prong of Craddock). Absent any evidence to prove Novosad was entitled individually to the automatic stay for his corporation, we fmd Novosad s failure to answer was due to an erroneous interpretation of the bankruptcy law, was intentional, and Novosad was not entitled to relief from the default judgment on these grounds. See also Cortland Line Co., Inc. v. Israel, 874 S.W.2d 178, 183 (Tex. App.- Houston [14th Dist.] 1994, writ denied) (failure to appear for trial based on incorrect interpretation of the law was intentional, and they were not entitled to relief under bill of review). Novosad v. Cunningham, 38 S.W.3d 767, 771 (Tex. App.--Houston [14th Dist.] 2001, no pet.). 2. A Defendant s Belief That No Answer Needed to Be Filed Fails the Craddock Test. Next, when faced with an allegation by a defaulted defendant that the defendant s opinion or impression was that he did not have to file an answer, the Fourteenth District Court of Appeals was unimpressed with this excuse: Here, appellant alleges in his affidavit the following excuses for failing to file an answer: Based upon my conversations with the process server, I was ofthe opinion that because the petition had been amended I was no longer a party. Therefore, I did not forward the papers to my attorney, nor did I answer in my own behalf. Furthermore, I had been negotiating with Daniel C. Graney, attorney for the plaintiffs, and was under the impression that the parties to the lawsuit had settled their differences. 18

28 This amounts to an admission that he took no action whatsoever after service because of his opinion or impression that the suit had been dismissed against him, and he was not required to file an answer. Beck v. Palacios, 813 S.W.2d 643, 645 (Tex. App.--Houston [14th Dist.] 1991, no writ). B. Kostechko Admits That Kostechko Intentionally Did Not Answer. In paragraph 8 of his affidavit, Defendant admits that he intentionally chose not to file an answer based upon his mistaken belief that he had not been served. (CR44) This affirmatively shows Defendant acted intentionally, and thus fails the first prong of the Craddock test. See Hoit Atherton Industries, mc, 835 S.W.2d at 82-83; In the Interest ofr.r., 209 S.W.3d at 115; Beck, 813 S.W.2d at 645. Because Kostechko has failed to meet his burden of proof under the Craddock test, the trial court did not abuse its discretion when it did not grant Kostechko s motion for new trial. RESPONSE ISSUE FOUR (Restated) Kostechko Cannot Complain About Defects in the Return of Service Because Kostechko Repeatedly Admits Facts in his Motion for New Trial, Affidavit and Brief Proving Kostechko Was Duly Served. (CR43) ARGUMENT AND AUTHORITIES FOR ISSUE FOUR A. Applicable Law Defendant s Admission of Facts Establishing Proper Service. In Texas, while a defendant s admission the Defendant had knowledge ofthe suit will not support a default judgment if the citation and petition were not properly served in accordance with Texas law, a defendant that admits facts establishing the defendant was properly served has waived the complaint of defective service. Wilson v. Dunn, 800 S.W.2d 19

29 833, 837 (Tex. 1990) (citing First Nat l Bankv. Peterson, 709 S.W.2d 276,280 (Tex. App.- Houston [14th Dist.j 1986, writ ref d, n.r.e.).). The Wilson Court wrote: Indeed, the issue presented is whether actual receipt can cure defective service in this context. The two cases upon which Wilson relies demonstrate this distinction. In both First Nat l Bank v. Peterson, 709 S.W.2d 276, 280 (Tex. App. -- Houston [14th Dist.] 1986, writ refd n.r.e.), and Hurst v. A.R.A. Manufacturing Co., 555 S.W.2d 141, 142 (Tex. Civ. App.-- Fort Worth 1977, writ refd n.r.e.), the defendant admitted not simply that process was received, but that it was duly served. Wilson, 800 S.W.2d at 837. Similarly, in the First Nat 1 Bank opinion cited favorably by the Texas Supreme Court in Wilson, the brief of the defaulting defendant/bank admitted facts establishing it was properly served with process, and as a result the bank waived its complaint regarding defects in the return of service: In its third point of error, appellant First National complains that the return of service on the Writ of Garnishment was defective and therefore cannot be used to support the default judgment. First National claims that the return does not state the manner and method of service as required and that the return does not contain the official signature of the sheriff or constable charged with serving the writ. It is unnecessary for us to discuss the two complaints raised by appellant under this point of error for it is clear from the record that appellant judicially admitted that it was duly served. Rule 419 of the Rules of Civil Procedure provides that: any statements made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party. TEx. R. Civ. P In its brief appellant First National states that after the writ was issued it was forwarded to the Sheriff of Brazos County for service and that the writ was served on November 15, Appellant s brief also states that on the day the writ was served, First National was indebted to Cowart for the sum remaining in his demand deposit account. Furthermore, First National s motion for new trial had attached an affidavit of William D. Barkley, President of First National, wherein he stated 20

30 that: on November 15, 1984, I was personally delivered a copy of Peterson s Application for Writ of Garnishment after Judgment. As can be seen from the quoted materials above First National judicially admitted that the Writ of Garnishment was duly served and there has never been any contention that they were unaware of the garnishment proceedings. First Nat! Bank, 709 S.W.2d at Further, in the Hurst opinion cited favorably by the Texas Supreme Court in Wi!son, the brief of the defaulting defendant admitted facts establishing it was properly served with process, and as a result the defendant waived its complaint regarding defects in the return of service: Hurst s attack on the default judgment cannot rest on a theory that the court lacked jurisdiction over his person, for he admitted in his brief that he was duly served and filed no answer. Hurstv. A.R.A. Mfg. Co., 555 S.W.2d 141, 142 (Tex. Civ. App.--Fort Worth 1977, writ ref d, n.r.e.). B. Kostechko s Motion for New Trial, Affidavit and Brief All Contain Admissions of Facts Establishing that Kostechko Was Properly Served. 1. Kostechko s Motion for New Trial Admits Facts Establishing Kostechko Was Properly Served. In his Motion for New Trial, Kostechko admits that [ojn or about August 28, 2009, Kostechko received the Certified Mail (a defined term which Kostechko uses to mean the citation and a copy of the petition that Mazaheri instructed the clerk ofthe court to transmit.. directly to Kostechko at his residence in San Clemente, California by certified mail, return receipt requested ) directly from the clerk of the court. (CR30) Further, Kostechko admits the clerk of this [district] court transmitted the citation and a copy of the Petition directly to Kostechko in California by certified mail, return receipt requested. (CR37-38) 21

31 the the Thus, Kostechko admits that Kostechko received the Certified Mail Citation and Petition - directly from the clerk of the court. The clerk of the court is authorized to serve a citation and petition via certified mail, return receipt requested. TEX. R. CIV. P As a result, Kostechko admitted facts establishing Kostechko was properly served by the court clerk. 2. Kostechko s Affidavit Admits Facts Establishing Kostechko Was Properly Served. In his Affidavit, Kostechko admits that [ojn or about August 28, 2009, I received an envelope by certified mail, return receipt requested, in the United States mail containing the citation and a copy of the petition in the Cause [the lawsuit that is the subject of this appeal] (the Certified Mail ) (CR43-44). Thus, Kostechko admits that Kostechko received the Certified Mail Citation and Petition - from the clerk of the court. The clerk of the court is authorized to serve a citation and petition via certified mail, return receipt requested. TEX. R. Civ. P As a result, Kostechko admitted facts establishing Kostechko was properly served by the court clerk. 3. Kostechko s Brief Admits Facts Establishing Kostechko Was Properly Served. On page 7 of his Appellant s Brief, Kostechko admits: On or about August 18, 2009, the clerk transmitted the Citation to Kostechko by certified mail, return receipt requested, at 3026 Calle Frontera, San Clemente, California (CR12-13). On or about August 26, 2009, Kostechko received the Citation by certified mail, return receipt requested, and signed the green card reflecting receipt (CR15). 22

32 in Thus, Kostechko admits that Kostechko received the Certified Mail the Citation and Petition - from the clerk of the court. The clerk of the court is authorized to serve a citation and petition via certified mail, return receipt requested. TEX. R. Civ. P Kostechko admitted facts establishing Kostechko was properly served by the court clerk. C. Kostechko s Admissions of the Facts Showing that Kostechko Was Properly Served Meet the Judicial Admissions Standard. A judicial admission must be a clear, deliberate, and unequivocal statement. Regency Advantage Ltd. Pshp. v. Bingo Idea- Watauga, 936 S.W.2d 275, 278 (Tex. 1996) (cit. omitted). An affirmative statement in a brief is a judicial admission of that fact. City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.--San Antonio 2001, no pet.) (appellate court may accept statements made in party s brief as true, as ajudicial admission); Kostechko s statements above his motion for new trial, affidavit and Appellant s Brief all meet this standard. Kostechko has clearly, deliberately, and unequivocally admitted that: (1) the district clerk sent Kostechko the Citation and Petition via certified mail, return receipt requested; (2) Kostechko signed the green card indicating Kostechko received the Citation and Petition; and (3) Kostechko received the Citation and Petition directly from the clerk of the court. 23

33 RESPONSE ISSUE FIVE (Restated) Because Kostechko Did Not File His Notice Of Appeal Within 90 Days After The Default Judgment Was Filed, This Court Lacks Jurisdiction. (CR28, 65; App.) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE FIVE In a civil case, an appeal is perfected by the timely filing of a notice of appeal. TEx. R. App. P. 25.1(a). A notice of appeal must be filed within 30 days after the judgment is signed, except... the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files... a motion for new trial. TEx. R. App. P If no notice of appeal is timely filed, the appellate court lacks jurisdiction over the appeal. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005). The default judgment was entered on March 17, (CR28; App.) Kostechko did not file his Notice of Appeal until June 30, (CR65) Kostechko did not file a notice appeal within 90 days following the entry of the default judgment. Because Kostechko did not file his Notice of Appeal within 90 days after the Default Judgment was filed, this Court lacks jurisdiction. See TEX. R. App. P

34 RESPONSE ISSUE SIX (Restated) Because Kostechko Did Not Pay the Fee for Kostechko s Motion for New Trial, The Trial Court Did Not Err When It Did Not Grant the Motion. (TR3O; 70) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE SIX A failure to set a side a judgment by default must be presented in a motion for new trial as a prerequisite to [a] complaint on appeal. TEX. R. CIV. P. 324(b). When a party timely files a motion for new trial but fails to pay the filing fee, the trial court is not required to consider it. Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004); Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311, 317 (Tex. App.--San Antonio 2007, pet. dism d). Under those circumstances, any complaint made in the motion for new trial has not been properly made to the trial court and does not preserve anything for appellate review. Garza, 137 S.W.3d at 38; Weeks Marine, Inc., 225 S.W.3d at 317. The District Clerk s Cost Bill shows that Kostechko did not pay the filing fee for Kostechko s Motion for New Trial. (TR7I) As a result, Kostechko has not made a proper complaint to the trial court and cannot complain to this Court that the motion for new trial should have been granted. See TEx. R. CIV. P. 324(b); Garza, 137 S.W.3d at 38; Weeks Marine, Inc., 225 S.W.3dat

35 RESPONSE ISSUE SEVEN (Restated) Because Kostechko Expressly Chose Not to Request and File a Reporter s Record of the Hearing on Kostechko s Motion for New Trial, Kostechko has Waived His Complaints. (CR60) ARGUMENT AND AUTHORITIES FOR RESPONSE ISSUE SEVEN Kostechko admits there was a hearing on Kostechko s Motion for New Trial ( While Kostechko argued at the hearing on the motion to set aside the default judgment that direct service upon the defendant by the clerk of the court was ineffective under the long arm statute, this mode of service is allowed under the Texas Rules of Civil Procedure ) (CR60) Kostechko s Appellant s Brief admits [o]n or about May 14, 2010, the court conducted a hearing on the Motion. (Appellant s Brief p. 9) Further, Kostechko expressly chose not to request a Reporter s Record be prepared. (CR68) The Clerk s Record contains no request by Kostechko that a Reporter s Record be prepared and filed. (CR1) At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter s record. TEx. R. APP. P. 34.6(b)(1); Chon Tn v. IT.T., 162 S.W.3d 552, 554 (Tex. 2005). When a reporter s record is necessary for appellate review and the appellant fails to file the reporter s record, a presumption arises that the reporter s record would support the trial court s judgment. Bryant v. United Shortline Inc. Assur. Sen s., N.A., 972 S.W.2d 26, 31 (Tex. 1998) ( We indulge every presumption in favor of the trial court s findings in the absence of a statement of facts. ); Rittenhouse v. Sabine 26

36 Valley Ctr. Found., 161 S.W.3d 157, 165 (Tex. App.--Texarkana 2005, no pet.). Moreover, if an appellant does not initiate the completion of a record and his issue involves matters omitted from the record due to his failure to request or pay for the record, his actions will prevent an appellate court from adequately addressing the dispute. Kent v. State, 982 S.W.2d 639, 641 (Tex. App.--Amarillo 1998, pet. refd, untimely filed) ( In sum, by failing to request and pay for a transcription of the trial sufficient to illustrate the purported error, appellant not only prevented us from considering the error but also waived it. ). Because Kostechko did not request the Reporter s Record, Kostechko cannot complain that the trial court failed to grant Kostechko s motion for new trial. See Biyant, 972 S.W.2d at 31. PRAYER For all the reasons stated in this brief, Appellee Mehrdad Mazaheri, M.D. asks that this Court affirm the judgment of the trial court and render judgment in favor of Mazaheri, or, in the alternative, remand this cause for further proceedings. 27

37 Respectfully submitted, PALMER & MANUEL, L.L.P. By: I JeffreS Saidberg State T3kr No jsandbérg(parnlaw.coin 8350 N. Central Expressway; Suite 1111 Dallas, Texas (214) / (214) Fax COUNSEL FOR APPELLEE MEHRDAD MAZAERI, M.D. CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing instrument was served by certified mail, return receipt requested, on day of October, 2010, upon: Michael Vranna, Esq. Michael Vranna, P.C North Central Expressway, Suite 1030 Dallas, Texas / 1 Jeffrey Sandberg 28

38 APPENDIX Clerk s Record Excerpts: CR12 Citation and Return CR28 Default Judgment Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990). First Nat l Bank v. Peterson, 709 S.W.2d 276 (Tex. App.--Houston [14th Dist.) 1986, writ ref d, n.r.e.).

39 S... 9!t O i 214/ Filed in said Court 17th day of August, 2009 against By -, Deputy DALLAS, TX SUITE 1111 Suit On COMMERCIAL DISPUTE etc. as shown on said petition, a copy of which accompanies this citation. II this citation is not served, it shall be returned unexecuted. Given under my name and the Seal of said Court toffic1n this 18th day of August, 2009 ivitest: GARY FITZSIMI WITNESS: GARY FITZSIMMONS, Clerk of the District çurts of Dallas, County Texas. For suit, said suit being numbered 1)C , the nature of which demand is as follows: NICHOLAS KOSTECHKO Said Plaintiff being MEHRDAD MAZAHERI, M.D. Clerk of the District Cour EXPRESSWAY Attorney for Plaintiff 8350 NORTH CENTRAL JEFFREY ROBERT SANDBERG By JO ANN GARDNER, Deputy Clerk I)istrict Courts, GARY FITZSIMMONS on this the 18th day of August, 2009 Dallas County, Texas ISSUED 600 Commerce Street, Dallas, Texas he taken against you. Your answer should he addressed to the clerk of the 298th District Court at with the clerk who issued this citation by 10 o clock a.m. of the Monday next fi,llowing the expiration You have becn sued. You may employ an attorney. If yojour attorn1o not tile a written answer f twenty days after you were served this citation and ORIGINAL petition, a default judgment may GREEflNGS: NICHOLAS KOSTECHKO vs. MEHRDAD MAZAIIERI. M.D. SAN CLEMENTE, CA No.: DC CALLE FRONTERA NICHOLAS KOSTECHKO SEP To: CITATION THE STATE OF TEXAS FORM NO CITATION CERT MAIL

40 .20 I WI I-.1 Notary Public County $0 to certify which witness my hand and seal of office. Signed and sworn to by the said before me this _day of 20 (Must be verified if served outside the St{e of T For serving Citation $ For mileage $ For Notary $ each, in person, a tnie copy of this Citation together with the accompanying copy of this pleading, having first endorsed on same date of delivery. The distance actually traveled by me in serving such process was and my fees arc as follows: To certify which witness my hand. r,cjo sl si %ji C\o5 z. C.kt) y i v S & C J IYA. I L 11? LeSi Q; eci named.m. on the of, 20 0, at 3?f Came to hand on the of - 0 F rorj.er. 5o,-, wit n the County of by delivering to the within at o clock 0%,at g Do clock Fxecuted OFFICER S RETURN.M. miles I 4

41 tt1liii-i-- I i I I I ;DALLAs TX COMMERCE STREET 1ST FLOOR GEORGE LALLEN SR COURTS BUILDING IStRiCT CLERK GARY FITZS)MMONS. p. Print your name, address arid Z1P+4 below. (frrñlt No. (3 1O IUSPS UN!TED STA1t POSTAI SEPVICE J PoMage & Fees Paid FFW1.CIéSS M&I1 S

42 DCO9t1z438 -,.. I I NI,, INEI5 --. JG DOC. PROD PS Fonv JanUary ooms*ic ctelwn Receipt I ill if I f f II 1 I J I.. -.c_ -...b :.4- ZCt1O1.AS KOS7C1IKO - - :-.:; ; RestrIc*ed De4n.iy? (Extr Fee)....S. A,1c4è Addressed to: f.\ SeM Type CERTIFIED MAIL / : c.,, - CAIUZ- ReWrR#t. :- -..: *. -..;..: I I I o

43 ru a C LI m C 0 US Postw Service Certified Mail Receipt Oorresrc MiI On(y N!iurance Covnige Praviccj Sent Jo: NICHOLAS 1CS fecbko )02t, CALUi FRONTERA Postage Certitied Fee Return Receipt Fee (Es&ii.tt Raqured) Restricted Delivery Fee lefwiotawmea Rm)v) Total Postage & Fees A4 C LENTh, CA 973 $ $ Postmark Here PS Form 3800, January 2005 U PoaI Serwe Jti : u _: icj) 4;f Certified Mali Receipt U U U U. U

44 CAUSE iso. DC aqrn.: 3Si MEIIRDAD MAZAHERI, M.D., IN THE DISTRiCT COURT Plaintiff, VS. 298th JUDICIAL DISTRICT NICHOLAS K0STECHKO, Defendant. DALLAS COUNTY, TEXAS DEFAULT JUDGMENT On March 17, came on to be heard the above entitled and numbered cause wherein Mehrdad Mazaheri, M.D. is Plaintiff and Nicholas Kostechko is Defendant. The PlaintitT appeared by and through Plaintiff s attorney. The Defendant, although having been duly and legally cited to appear and answer, failed to appcar and answer and wholly made default. Citation was served according to law and returned to the clerk where it remained on tile for the time required by law. The court has read the pleadings and papers on file, has considered its rccord, and tinds that the court hajw isieton ol the parties and subjcct matter of this action, that the allegations of Plaintiff s petition have been admitted and that Plaintifi s cause of action is procd by an instrument in writing, and, upon good and sufficient evidence presented to the Court, finds that Defendant made negligent misrepresentations, fraudulent misrepresentations and violated the Texas Deceptive Trade Practices Act, and that Plaintiff is entitled to judient against Defendant as follows: IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Mehrdad Mazaheri, M.D., Plaintiff, recover from Nicholas Kostechko, Defendant, actual damages of S 140, and additional/punitive damages of S200,000.O0 with interest on said sum at the rate of 5.00% per annum from date ofjudiient until paid. Default Judgment l:09487\dcfautt Judgmcnt doc Page 1 of 2

45 , IT IS FURTHER ORDERED that Mehrdad Mazaheri, M.D., PIaintiff recover from Nicholas Kostcchko. Defendant, attorney s fees ofs2, for services rendered to the trial in this case. frr thvt t enljilm tra awprd of S2,099-.0O as a ruasonabic fc-againt Dfendnt; in the event of an appeal by Defendant to the Court of Appeals, if the appeal is unsuccessful, Mchrdad Mazaheri, M.D. will be Ilirther entitled to an award of $7, as a reasonable fee against Defendant; in the event of an appeal by Defendant to the Supreme Court of Texas, if the appeal is unsuccessful, Mehrdad Mazaheri, M.D. will be entitled to an additional S 10, as a reasonable attorney s fees against Defendant. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the attorney s fees awarded in this Judgment shall hear interest at the rate of five (5%) per annum, from date of Judgment until paid. I F IS FURTHER ORDEkEj, Di UDGED AND DECREED that all costs of court incurred o expended in this cause arc hereby adjudged against Defendant, for which let execution issue. Plaintiff is allowed such writs and processes as may be necessary in the enibreement and collection of this judgment. All relief requested in this cause and not specifically granted herein is hereby expressly denied. This is a final, appealable judgment. Signed this the j day of 20O. Page 2 of 2 If

46 Get a Document - by Citation S.W.2d 833 Page I of My exss Search Research Task\Get a DocumentShepard salestotai LitigatorTransactional AdvtsorCounseI SeIector FOCUS Terms Search Within or9 Refts(1 Advanced.. Service: Get by LEXSEE Citation: 800 S.W2d 833 at S. W.2d 833, *; 1990 Tex. LEXIS 133, ; 34 Tex. Sup JESSE WILSON, Petitioner v. MICHAEL DONNELL DUNN, Respondent No. C-7796 SUPREME COURT OF TEXAS 800 S.W.2d 833; 1990 Tex. LEXIS 133; 34 Tex. Sup October 24, 1990, Delivered SUBSEQUENT HISTORY: [* *1] Rehearing overruled January 23, PRIOR HISTORY: From Tarrant County; Second District. CASE SUMMARY PROCEDURAL POSTURE: Petitioner appealed the decision of the Second District Court of Appeals, Tarrant County (Texas), which reversed the district courts judgment against respondent and held that a defect in service of process pursuant to Tex.RCivP106 (b) precluded the entry of a default judgment. OVERVIEW: The appeals court reversed a district court s entry of default against respondent and petitioner appealed. The court affirmed and remanded to the trial court, holding that a default judgment could not have been taken. The court held that petitioner did not strictly comply with the substitute service requirements of Tex R Civ P 106(b) because petitioner did not verify his motion for substitute service or support the motion by affidavit or other evidence. Therefore, even though respondent had notice of the suit against him, the default judgment had to be set aside. Moreover, respondent did not waive the error by failing to raise it in his motion for a new trial. OUTCOME: The court affirmed the judgment of the appeals court because petitioner failed to strictly comply with the requirements for substitute service and therefore was not entitled to a default judgment against respondent, even though respondent had notice of the law suit. CORE TERMS: default judgment, adjuster, new trial, notice, insurer, ref d, apartment manager, default, clerk, actual notice, strict compliance, apartment, constable, sworn statement, delivering, service of process, actually received, actual knowledge, issue presented, direct attack, personal service, jurisdiction to render, irregularity, approaching, preserved, complain, deputy, attorney wrote, original petition, dereliction LEXISNEXIS HEADNOTES Hide QyiLrcedur > Pieeding& Prectic > S dceofrrocess > Giierl Overview i HNljTex.R. Civ. P.106(b) states: upon motion supported by affidavit stating the location of the defendant s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or (2) in any that other manner the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit. More Like This I SiePs i 1e; Restrict By Headnote Civ r2cefttjth> P djng&precbce> S y1geopspce> Oenerie yeryjw Cylligdoie > PstrJgn]ents> Cetaiit> OefduftJuments Civil Procedure > Pretrial Judgments> Default > Relief From Default HN2A default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements. More Like This Headnote J SIi, pardize: Restrict By Headnote CiyiLProcedur.e > Pleading& Practice > ServicorProcess > OenereJ Overview Civil Procedure > Pretrial Judgments > Default > Default Judgments *i Civil Procedure > Pretrial Judgments > Default > Relief From Default HN3j There are no presumptions in favor of valid issuance, service, and return of citation in the face of a direct attack on a default judgment. Moreover, failure to affirmatively show strict compliance with the Texas Rules of Civil Procedure renders

47 Get a Document - by Citation S.W.2d 833 Page 2 o the attempted service of process invalid and of no effect. More Like This Headnote Civil Procedure > Pteading& Practice > Service of Process > General Overview vvi Civil Procedure > Pretrial ludgrnents > Defauft > Default Judgments 4±Substitute service is not authorized under Tex.. R.. Civ, P. 106(b) without an affidavit which meets the requirements of the HN rule demonstrating the necessity for other than personal service. More Like this Headnote Stiepardize: Restrict By Headnoe Civil Procedure > Pleading B Practice > Service of Process > General Overview Civil Procedure > Pretrial Judgments > Default > Default Judgments HNS±Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him. Rather, jurisdiction is dependent upon citation issued and served in a manner provided for by law. Absent service, waiver, or citation, mere knowledge of a pending suit does not place any duty on a defendant to act. More Like This Headnote Shepardize: Restrict By Headnote Civil Procedure > Pleading & Practice > Service of Process > General Overview Civil Procedure > Pretrial Judgments > Default > Default Judgments Civil Procedure > Prefrial Judgments > Default > Relief Front Default HN6±A default judgment is improper against a defendant who has not been served in strict compliance with law, even if he has actual knowledge of the lawsuit. More Like This Headngt Shepardize: Restrict By Headnote Pajj]g_Practice > Service_of Process> General_Overview t. J gjfleflfs> Relief FrgmJtdgrnof > Motions folnew Trials Civil Procedure > Appeals > Reviewability > Preservation for Review *L KN7±Tex. R. Civ. P. 324 imposes no requirement on defendant to raise an issue of defective service in a motion for new trial, in order to preserve such error for appeal. Like This Headnote 5pardize:Restnc4_yjeadnote COUNSEL: Mr. Don Prager, Fort Worth, Texas, for Petitioner. Mr. Robert D. Frye, Shannon, Gracey, Ratliff & Miller, Fort Worth, Texas, for Respondent. JUDGES: Nathan L. Hecht, Justice. OPINION BY: HECHT OPINION [*833] OPINION The district court in this case authorized substitute service of suit papers upon defendant without an affidavit or other evidence justifying such service as required by [*834] Riilj_0_LbL oftbe Texas ules of Civil Procedur. Defendant nevertheless received citation and plaintiff s petition, but did not answer, and the trial court rendered default judgment against him. The court of appeals reversed the default judgment because of the defect in service and remanded the case to the trial court for further proceedings. 752 S.W.2d 15. We affirm. FOOTNOTES 1 All references to rules are to the Texas Rules of Civil Procedure. I Jesse Wilson sued Michael Dunn for damages resulting from Dunn s [**2] negligent operation of a motor vehicle. 2 Wilson alleged that Dunn could be served with citation at his apartment, where, in fact, Dunn was then residing and has resided at all times material to this case. Repeated, sustained efforts to serve Dunn there, however, both in person and by mail, proved unsuccessful. FOOTNOTES 2 Wilson allege that he was injure when the vehicle he was driving was struck from the rear by a vehicle driven by Dunn. In a sworn statement to Wilson s attorney, Dunn recounted: [Wilson] was stopped waiting for a train. I was stopped behind him and I was looking at my Mapsco. I thought that the train had gone by and without looking up, I started my van moving forward and I hit the rear of Mr. Wilson s El Camino. After several months, Wilson s attorney filed a motion for substitute service under Rule io6cb_2. HNlRuIe 106C_bj states: Upon motion supported by affidavit stating the location of the defendant s usual place of business or usual place of abode or other place where the defendant can probably [* *3] be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service

48 Get a Document - by Citation S.W.2d 833 Page 3 of (I.) by leaving a true copy of the citaton, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit. (Emphasis added.) Contrary to the explicit requirement of the rule, Wilson s motion was not verified or supported by affidavit or other evidence. Nonetheless, the judge of the 236th District Court to which the case was assigned granted the motion and ordered that citation be served upon Dunn either by attaching it to the door of his apartment or by delivering it to the apartment manager at Dunn s address. However, the judge instructed the clerk to attach a note to the docket sheet stating that no default judgment was to be taken. The return of citation authorized by the district court stated that it had been served by a deputy constable [**4) by delivering to the within named Michael Donell [sic) Dunn by delivering to his agent for service, Carol Berlinger, apartment manager a copy of the citation and plaintiff s original petition. Dunn actually received the papers, as he later acknowledged in a sworn statement given to Wilson s attorney: I received some suit papers from [Wilson s attorney]. These papers were placed in my apartment by the apartment manager where I live after the Constable served the papers on her. Within five days from the date that I received the suit papers, I hand delivered them to my insurance agent. FOOTNOTES The record indicates that the district judge may have refused to grant the motion at first. We have no record of any hearing on the motion. Wilson has never asserted that Dunn s apartment manager was his agent for service of process. The deputy constable appears to have filled out the wrong printed portion of the return, the form for service on individuals, instead of the form for service under Rule 106(b), which was not completed. [* *5] Within a few weeks an adjuster for Dunn s insurer telephoned Wilson s attorney to discuss the case. Following up their conversation, the adjuster wrote Wilson s attorney requesting him to agree that, pending efforts to obtain Dunn s cooperation and to settle Wilson s claim, Dunn would not be required to file an answer in [*835] the case and no default judgment would be taken without ten days notice. Wilson s attorney wrote at the bottom of the letter, I agree to the above, signed it, and returned it to the adjuster. Shortly thereafter the adjuster retained an attorney to monitor the case. The attorney telephoned the clerk of the court on at least two occasions and was told that at the court s instruction a note had been attached to the file that no default judgment could be taken in the case. The attorney did not contact Dunn but the adjuster finally did, and obtained a statement from him. About the same time, however, the insurer transferred the case to another adjuster, and Wilson s attorney was not informed that Dunn had been contacted. Concerned that the second anniversary of the accident was approaching, Wilson s attorney wrote Dunn a letter dated February 19, 1987, [* *6] urging him to cooperate with his insurer and warning him of the possible consequences of failing to do so. Specifically, the letter stated, we are going to ask the Court for the Default Judgment against you during the second week of March, Wilson s attorney sent a copy of the letter to the adjuster and the attorney retained by the adjuster. In response to the letter, the sometimes elusive Dunn contacted Wilson s attorney and arranged to meet with him. Dunn gave Wilson s attorney a sworn statement in which he indicated that he had not failed to communicate with his insurer. FOOTNOTES s Wilson s attorney also appears to have been concerned whether Dunn had properly been served in view of the approaching end of the applicable two-year limitations period. See T XCIV. RAC. & REM. CODE ANN (Vernon 1986), Convinced that the adjuster had not been fully candid with him, Wilson s attorney went to the 236th District Court on February 27, 1987, to obtain a default judgment. Finding that the judge of [**7] that court was not available, Wilson s attorney requested the file from the clerk so that he could take t to another judge for hearing on his request for a default judgment. The clerk was reluctant to give Wilson s attorney the file because the judge had told her that default judgment was not to be taken in the case. She pointed out to Wilson s attorney the note the judge had instructed her to attach to the file, but he insisted on taking it, and she finally relented. On the way to a hearing before the judge of the 67th District Court, 6 Wilson s attorney removed the note from the file and threw it away. FOOTNOTES 6 The 236th District Court and the 67th District Court both sit in Tarrant County. They are permitted to, and do, hear each other s civil cases under Rule 330. Wilson s original petition requested $ 144 damages for past medical expenses, and unspecified amounts for future medical expenses, lost wages, loss of earning capacity, and past and future physical pain and mental anguish. After hearing, the judge of [**8] the 67th District Court rendered default judgment for Wilson for $ 475,000. Later the same day Wilson s attorney told the judge who granted the default judgment that he had removed the prior judge s note from the file because Dunn had actual knowledge of the suit and default was therefore appropriate. The judge who granted the default judgment strongly reproved Wilson s attorney but did not set aside the judgment.

49 . Get a Document - by Citation S.W.2d 833 Page 4 of FOOTNOTES 7 The imits of Dunris insurance policy appear to be $ 500,000. Neither Dunn nor his insurer learned of the default judgment until after it was signed. Dunn filed a motion for new trial, which was also presented to the judge of the 67th District Court. The motion did not complain of the defect in service. After hearing evidence, the trial court denied the motion. The trial court concluded that substitute service was appropriate, and that Dunn had received actual notice of the suit. The trial court also concluded that Dunn s failure to file an appearance was due to the conscious indifference of [**9] his insurer. FOOTNOTES B It is unclear from the record whether the trial court actually addressed the defect in service even though Dunn did not raise it in his motion for new trial. [* 836] On appeal, Dunn argued that service was defective and could not support the default judgment. Dunn also argued that the trial court s conclusion that he was not entitled to a new trial was against the great weight of the evidence and manifestly unjust. The appeals court agreed with Dunn s defective service argument and did not address his other arguments. Thus, the only issue presented to us is the sufficiency of service. II For well over a century the rule has been firmly established in this state that Va default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements. See, e.g., Uy,(ciCourjtryCLubv. MarAinLinnSupp/y Cc 88486LT 1,985) (per curiam); Ick.yEd3LSW2th927,925L(.Tex.1965; [**1O] Sloan v. Batter 46Tex. 215, 216 (18761; see also R. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS , at (F. Elliott rev. 1984). This Court only recently reasserted: HNYThere are no presumptions in favor of valid issuance, service, and return of citation in the face of a [direct] attack on a default judgment.... Moreover, failure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect. Uvalde, 690 S.W.2d at 885. See H In this case, Dunn was not strictly served in compliance with Rti11Q6Lb because substitute service was not properly authorized absent the affidavit explicitly required by the rule. The express requirement of an affidavit in support of a motion for substitute service was added effective in S.W.2d xxxviii-xxxix (Tex. Cases 1980). It appears, however, that prior to that change in the text of the rule the courts uniformly held that substitute service could be authorized only upon probative evidence of the impracticality of personal service. [**11] See StytrI2I*CCr1$ti 1nCv. SPi (Tex. Civ, App , no writ); Hso DalhsCqurt Repo log c 11eg589S.W.2 3, (Tex. Civ. App. -- K/degard v. First City Nat S.W,2d (Tex. Civ. App. -- Dallas 1963, writ ref d n.r.e.); cf. I Bank, 486S.W.2d893, (Tex. Civ. App. -- Austin Beaumont Dallas Houston 114th Dist.] 1979, no writ); 1972, no writ); Erank.y1qrLta1Idqp , no writ); Sp cer Texas Ectcr Lpc36SW2d6.99,70O (Tex. Civ. App. -- (trial court authorized substitute service on unverified motion but heard evidence of sufficiency of that service before rendering default judgment). Since the 1981 change in R [ijqbj the courts have consistently held that substitute service may not properly issue on a motion supported by an affidavit that is conclusory or otherwise insufficient. See Medford V. Salter, 747 S.W.2d 519, 520 (Tex. App. -- no writ); els v. es Trap iic,206 S.W2dJS2 5*Z59 (Tex. App. -- Inc. v.hoit,, 693 S.W.2d 684, (Tex. App ,W (Tex. App. -- Eastland Houston Dallas Corpus Christi 1988, 1986, no writ); Beach, Bait & Tackle, [**12] [14th Dist.] 1985, no writ); Mackie C onstr.co. vcarpetservices,inc., 1982, no writ). We agree and hold that HN Rule 106(b) without an affidavit which meets the requirements of the rule demonstrating the necessity for other than personal service. 4 substitute service is not authorized under Wilson acknowledges that service on Dunn was defective because of the failure to comply with Rule 106(b), but argues that the default judgment rendered against Dunn should nevertheless stand because Dunn actually received the suit papers and actually knew of the pendency of the suit. We disagree. HN 5 Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him. See I-farrell v. Mexico cattle Co., 73 Tex. 612, 11 S.W. 863, 865 (1889). Rather, jurisdiction is dependent upon citation issued and served in a manner provided for by law. [*837] Id.; Panhandle Constr. Co. v. casey, 66S.W.2d 705, 707 (Tex. Civ. App. --Amarillo 1933, writ ref d); see [**13] C. W.Bo/llngerlns. Co. v.fish, 699 S.W.2d 645, 655 (Tex. App. -- Austin 1985, no writ). Absent service, waiver, or citation, mere knowledge of a pending suit does not place any duty on a defendant to act. See Harrell, 1.UV.a t865; Panha4ICqrsfr.Co., Consequently, Dunn s knowledge that Wilson had sued him and his actual receipt of suit papers is not sufficient to invoke the district court s jurisdiction to render default judgment against him. Wilson relies heavily upon secbc3cf the. S1.AT11T )LMENTS (1982), which states: When actual notice of an action has been given, irregularity in the content of the notice or the manner in which it was given does not render the notice inadequate. Wilson fails to note, however, that this rule does not apply to default judgments. As comment dto explains: The objection to the regularity of notice also often arises in the context of an application for relief from a default judgment. Here again there is a rational basis for treating an irregularity in notice-giving as significant even though actual notice has been conferred. To do so is to apply a rule of parity among the parties concerning formal defects in procedure. [**14] A default judgment is awarded not because the court is entirely satisfied that the claim has substantive merit... but

50 - Caution: Citing Corpus Get a Document - by Citation S.W.2d 833 Page 5 of because the party in default was derelict in complying with the rules of procedure governing how he may make his defense. An applicant for relief from such dereliction must show that he acted with due diligence after having become aware of the default and that he has a good case on the merits.... Assuming he makes such a showing, the only ground supporting the judgment is that the defendant has failed to respond to the action in conformity with applicable procedure for doing so. If the defendant can then show that the person commencing the action was guilty of comparable nonconformity with procedural rules, under a principle of equality the derelictions offset each other and the merits of the controversy may be brought forward for consideration. This authority contradicts, rather than supports, Wilson s position. Wilson also contends that Dunn is foreclosed from complaining that service was defective because he has admitted receipt of the suit papers. We agree that Dunn could have waived his complaint of defective service by conceding the issue, but he [**15] has not done so. Dunn has admitted receipt, not service. Indeed, the issue presented is whether actual receipt can cure defective service in this context. The two cases upon which Wilson relies demonstrate this distinction. In both First Nat I Bank v. Peterson, 709 S.W.2d 276, 280 (Tex. App. -- (Tex. Civ. App. -- Fort Houston [14th Dist.] 1986, writ retd n.r.e.), and Hurst v. Worth 1977, writ ref d n.r.e.), the defendant admitted not simply that process was received, but that it was duly served. The distinction between actual receipt and proper service is precisely what gives rise to the issue we address here. We hold that H4 6 3a default judgment is improper against a defendant who has not been served in strict compliance with law, even if he has actual knowledge of the lawsuit. See Higgjnbotham v. GeneraL Life &Acc. Ins. co,,j96 S.W.2d 695. (Tex. 1990j. Finally, Wilson argues that Dunn has failed to preserve any complaint of defective service by not raising the issue in his motion for new trial. HN?Rule 324 imposes no such requirement for preservation of such error. JVf,324; see Bronze & Beautiful, [**16] Mahone,75C S.W2d2829 (Tex. App ,765 (Tex. App. -- Texarkana 1988, no writ); Aectn iccpr& Lc125.SW2i Christi 1987, writ ref d n.r.e.). We hold that Dunn s complaint was preserved for appeal. FOOTNOTES g Rule 324 states that no complaints other than those specified in the rule need be raised in a motion for new trial as a prerequisite to appeal. The rule was amended in 1978 and 1981 to limit the use of motions for new trial to preserve error. However, TxasRi,ile ofappelitepitiie52(aj provides that a complaint is not preserved for appellate review unless it is presented to the trial court and a ruling obtained. This rule serves the salient purpose of requiring that all complaints to be urged on appeal first be presented to the trial court so that any error can be corrected without appeal, if possible. How Rcik52ja applies to complaints which cannot be raised prior to judgment but are not specifically required by Rule 324 to be raised in a motion for new trial, is unclear. On the one hand, if Rule 52( required that such complaints be raised by some means tantamount to a motion for new trial but simply not called by that name, then Rule 324 would be deceptive and its policy impaired. On the other hand, if Rule 52(a) does not apply to such complaints, then its language is overly broad and its policy undermined. These problems should be considered in future amendments to the rules. [**17] III [*838] Accordingly, we conclude that the default judgment against Dunn was improper. We therefore affirm the judgment of the court of appeals reversing the judgment of the district court and remanding the case to that court for further proceedings. Service: Get by LEXSEE Citation: 800 S.W.2d 833 at 837 View: Full DatelTime: Wednesday, October 13, :50 AM EDT Signal Legend: - Warning: Negative treatment is indicated O - - Questioned: Validity questioned by citing refs O - Possible negative treatment - Positive treatment is indicated Refs. With Analysis Available Citation information available * Click on any Shepard s signal to Shepardize that case. My Lexisrv Search I Research Tasks I Geta Document Shepard s I Qeli rymai]ager I Qoier I 5wcP_QJIent I Alerts. Total Litigator I I SignQui I Transactional Advisor Counsel Selector I e i N. AbOUt L.exisNexis YerrnSConcHtiofls Contact I Coptright 2010 LexisNexis, a division 01 Reed Elsevier Inc. All rights reserved.

51 JL 1 LJiiW111I1L - uy Litanon - /ui S.w.2U 21O Page 1 o txisntxis To3IRwarrh yctm TM Research Tasks Get a Document Shepards dalerts Total LitigatorTransactional Advcsor Counsel Selector 1 My Lexisi FOCUS Terms Search Within Orwnai Reuits (1 -i Advanced. Service: Get by LEXSEEiI Citation: 709 S.W.2d S. W2d 276, *; 1986 Tex. App. LEXIS 12444, FIRST NATIONAL BANK OF BRYAN, Appellant v. FREDERICK E. PETERSON, Appellee No. B CV COURT OF APPEALS OF TEXAS, Fourteenth District, Houston 709 S.W.2d 276; 1986 Tex. App. LEXIS March 20, 1986 SUBSEQUENT HISTORY: [5*1] Rehearing Denied May 1, PRIOR HISTORY: Appeal from the 11th District Court of Harris County, Trial Court No B. CASE SUMMARY PROCEDURAL POSTURE: Appellant bank challenged the judgment of the 11th District Court of Harris County (Texas) which entered a default judgment against appellant for the full amount of appellee garnishor s judgment against a non-party customer, and then denied appellant s motion for a new trial. In this action, appellee failed to answer the writ of garnishment that was served upon it by appellee. OVERVIEW: Appellee garnishor was awarded a judgment against a non-party customer and served a writ of garnishment to obtain monies under the judgment from appellant bank. After receiving the writ of garnishment, appellant merely froze non-party customer s account and failed to answer the writ. The trial court awarded appellee a default judgment against appellant for the full amount of the award judgment. Appellant moved for a new trial, alleging that its failure to answer was due to accident or mistake, and the trial court denied appellant s motion. Appellant challenged the trial court s judgment. The court affirmed the judgment of the trial court and held that appellant s failure to answer or seek advice about it constituted negligence and conscious indifference. Accordingly, the court stated that there was sufficient evidence to support the trial court s default judgment and denial of appellant s motion for a new trial. The court also held that equitable principles could not be used to excuse appellant s ignorance of procedure. The court also found that appellant could not claim defective service of the writ because appellant had already judicially admitted proper service. OUTCOME: The court affirmed the judgment of the trial court against appellant bank for the full amount of appellee garnishor s judgment against a non-party customer. The court found that appellant s failure to answer appellee s writ of garnishment was the result of negligence and conscious indifference and that the trial court had not abused its discretion in denying appellant s motion for a new trial. CORE TERMS: new trial, default judgment, garnishment, conscious indifference, failure to file, abused, duly served, ref d, equitable principles, refusing to grant, complains, rules governing, bank officers, deposit account, failure to answer, conscious disregard, meritorious defense, received notice, personally, non-movant, forwarded, indebted, sworn, ample, own facts, equitable, complied, cashier, freeze, levy LEXISNEXIS HEADNOTES - Cyil Procedure > Pretrial Judgments > Default > Relief From Default Hide Civil Procedure > )udgments > Re ifcom Jvdgrnent > Excb Negjct & istkhs > Mske CiviLRrgcdjre> JugrnentS> RCIef from Judgrpenj> Motions for New Tnals HNI±A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Mo tikthis Headriote SheNlajdtze: Restrict FjHeadnote Civil Procedure > Pretrial Judgments > Default > Relief From Default Civil Procedre > Judgments > Relief From hidgment > Motions for New Trials HN2±It is the movants burden on motion for new trial to negate the existence of conscious indifference. More Like This Headnote Shepardize: Restrict BV Headnote Civil Procedure > Judgments > Recef From Judgment > Motiors or Ne Tr als Civil Procedure > Appeals > Standards of Pevew > Abuse of Discretion t HN3The general rule is that the decision whether to grant or deny a motion for new trial is left to the sound discretion of the

52 San - uy ilalioil - /U1.W.ZG 4/0 Page 2 0 trial court and is reviewable only as to the issue of abuse of discretion. Mge LikeT dnge Slidpardize: Restrte Civil Procedure > Pretrial Judgments > DefaLijt > Default Judgjnents Ciyil Prgcedu > Judgments > Relief Frgrp Judgmept > Motions for New Trials ti civil Procedure > 4pel > 5tri1ardsof Review > Abu of DisCretion HN4± Each case must be decided on its own facts, and in accord with the established underlying governing principles. More le this Headnote Civil Procedure > Pretrial Judgments > Default > Default Judgments t Civil Procedure > Pretrial Judgments > Default > Relief From Dfult i Civil Procedure > Judamerits > Rehef From Judgment > Motions for New TrialS HNS±The validity of a default judgment cannot be tested merely by the amount of the judgment ultimately entered. Appellant s penalty for ignoring the procedure for filing an answer should be no different than that suffered by any other default defendant under similar circumstances. More Like This Headnote Stiepard/ze: Restrict By Headnote Civil Procedzire > Judgments > Preclusion & Fffect of Judgments > Fsoppel > Jvdiual Cstopoel HN6±Tex. R. Civ. P. 419 provides that any statements made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party. More Like thi. 1-leadnote COUNSEL: Jon Miller, of Bryan. John Schwartz, of Houston, for Appellant. S. Lee Stevenson, Jr., of Houston, for Appellee. JUDGES: Associate Justices Pressler, Murphy and Draughn. OPINION BY: MURPHY OPINION [* 277] This is an appeal from a default judgment entered in favor of appellee, Frederick E. Peterson. In three points of error appellant complains that: (1) the trial court abused its discretion in refusing to grant its motion for new trial; (2) the trial court abused its discretion in failing to consider equitable principles in denying its motion for new trial; and (3) the return of service on the Writ of Garnishment was defective and will not support a default judgment. We affirm. On June 4, 1984, appellee Peterson, as plaintiff below, obtained a judgment in a separate cause of action against Wallace T. Cowart, Jr., who is not a party to this suit. This judgment was for the sum of $48, Peterson thereafter obtained a Writ of Garnishment against appellant First National Bank of Bryan (First National). First National was a debtor of Cowart for the [**2] sum of $312.68; the balance in Cowart s demand deposit account. First National froze Cowart s account but did not file a sworn written answer in response to the writ as required by Rule 667 of the Rules of Civil Procedure. Consequently, Peterson obtained a default judgment against appellant First National on the garnishment in the amount of $48,831.77, together with post judgment interest and costs. First National duly filed a motion for new trial alleging first that its failure to file an answer was the result of accident or mistake and not conscious disregard, and second, that they had a meritorious defense to the default judgment. First National s motion for new trial was denied by the trial court on the basis that its failure to answer was either intentional or the result of conscious indifference. Appellant s first and second points of error challenge the trial court s denial of [*278] its motion for new trial. Both points generally contend that the trial court abused its discretion in refusing to grant the motion, and more specifically in failing to consider equitable principles. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), provides the basic [**3] rules governing the setting aside of a default judgment and the granting of a new trial. The basic rule provides that: HN1?[al default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock, 133 S.W.2d at 126. Furthermore, 2it was appellant s burden on motion for new trial to negate the existence of conscious indifference. Young Snowcon, inc 463 S.W.2d 225,227 (Tex. Civ. App. -- Houston [14th Dist.) 1971, no writ). HNYThe general rule is that the decision whether to grant or deny a motion for new trial is left to the sound discretion of the trial court and is reviewable only as to the issue of abuse of discretion. Brothers Dp-tment Store inc. v. Berenzwejg 333 S.W.2d (Tex. Civ. App. -- Antonio 1960, writ ref d n.r.e.). The circumstances surrounding the entry [* *4] of the default judgment involved in this case reveal that on November 15, 1984, the president of First National Bank, William D. Barkley, was personally served with the Writ of Garnishment. After examining the documents, he delivered them to George Koenig who was the executive vice president and cashier of First National Bank. Koenig testified that he read the writ but did not realize that the Bank was supposed to file a written answer. Without seeking advice or counsel, Koenig then delivered the writ to Sam Ponzio who was an auditor and assistant cashier for the Bank. Mr. Ponzio testified that he read the writ, understood that he needed to place a freeze on the account, but did not understand that a sworn written response

53 - i.iy ilauuii - ivi. vv.lu z /o Page 3 of was required. The pertinent language in the writ which all three men as bank officers read, but allegedly did not understand provided as follows: Therefore you, First National Bank of Bryan, Garnishee, are hereby commanded to be and appear before the said Court, held at Houston, Texas, at or before ten o clock A.M. of the Monday next following the expiration of twenty days from the date of service of this writ, then and there to answer upon oath what, if [**5] anything, you are indebted to the said Wallace T. Cowart, Jr. The testimony of Mr. Ponzio who was ultimately given the responsibility of handling the writ provides insight into the action or lack thereof taken by appellant bank after being served with the writ. Mr. Ponzio testified on cross-examination as follows: Q: Mr. Ponzio, I believe you stated that it is your normal procedure not to file an Answer in Garnishment cases, but merely wait until someone contacts you; is that correct? A: That is correct. We treated it as if it were a levy. Q: I believe that you also testified that you reviewed the papers and then, of course, based on the review, you, of course, placed a freeze on the account? A: That is correct. Q: So, therefore, you complied with part of the Writs admonition to you? A: That is correct. Q: But, you obviously took no action to contact your attorney or to discuss with anyone in the Bank or otherwise what action the Bank should take with respect to filing an Answer? A: That is correct. Q: You also didn t contact our (Garnishor s Attorney) office? [*279] A: No, sir. It is appellant First National s [**6] contention that the total lack of action in answering the writ was due to an accident or mistake in that it believed that the matter would be handled informally as had previous writs and levies. We are of the opinion that the disposition of this point of error is clear in view of ieier v. Dal Tex. 258 (Tex. App. -- Fort Worth 1982, no writ). In Butler, the appellant stated in his motion for new trial that his failure to file an answer to the writ of garnishment was not the result of conscious indifference but rather resulted from the fact that he did not understand the citation he had received and believed that he would be notified at a later date of the time of his court appearance. After noting that the appellant in Butler read the citation that he was served, and then placed it on his desk until he received notice that a default judgment had been entered the court stated that: there is no evidence that Butler tried in any way to get help in understanding the citation, if indeed he did not understand it. But/errL26. Based on those circumstances the court stated that there was ample evidence in the record to support the [**7] trial court s finding that the failure to file an answer was the result of negligence and conscious indifference. BitjpjLZO. The facts and circumstances of the instant case are virtually identical with those in Butler. In the instant case, however, the writ passed through the hands of not one but three bank officers who all testified that they read but allegedly did not understand that an answer was necessary. Nor did any of the officers take any steps toward consulting a lawyer after receiving the writ. In FoIsomInvestmeitt.. Inc. v. Troutz 632 S.W.2d 872 (Tex. App. -- Fort Worth 1982, writ ref d n.r.e.), a designated agent for service of process received citations and copies of a petition on two different occasions. The agent then forwarded the papers to a senior officer with directions that the sole shareholder of the defending corporation also receive a copy of the documents. No answer was ever filed and a default judgment was entered. The trial court s subsequent denial of the defendant s motion for new trial was affirmed on appeal when the appellate court noted that: the trial court was entitled to believe that three different persons, all with [**8] presumably high degrees of responsibility, had received notice of the Troutzes suit and consciously neglected to file answers. Folsom, sqpra., at S74. We are of the opinion that the trial court did not abuse its discretion in denying First National s motion for new trial. The record in this case provides ample evidence to support the trial court s finding that First National s failure to answer as required by the writ was either intentional or the result of conscious disregard. Furthermore, we note that in order to comply with Craddock appellant First National had to prove that a new trial would not prejudice the non-movant by showing that it was ready, willing and able to go immediately to trial and willing to reimburse the non movant for expenses incurred in obtaining the default judgment Calhoun v calhoun,61.7s.w.2d 756 (Tex. Civ. App. -- Civ. App. -- Houston Houston [14th Dist.) 1981, no writ); Spepcer v Affleck & Co., 620S.W.2d 83 1, 833 (Tex. [14th Dist.) 1981, writ ref d n.r.e.). In the instant case First National made no showing in its motion for new trial that it was ready, willing and able to go immediately to trial. In view of the foregoing [**9] we are of the opinion that the trial court was justified in denying First National s motion for new trial because of both the court s finding of conscious indifference and because of First National s failure to offer to ameliorate any prejudice to appellee Peterson. Appellant s first point of error is accordingly overruled. Appellant s related second point of error complains that the trial court abused its discretion in failing to consider equitable principles in denying its motion for new trial. It is true, as appellant argues, that Sunshine Bus Lines v. Craddock requires a trial court to consider equitable principles [*280] when exercising its discretionary authority with regard to a motion for new trial following a default judgment. Craddock, 112 S.W.2d at 252. It is equally true, however, that the facts involved in the different cases necessarily differ, 4each case must be decided on its own facts, and in accord with the established underlying governing principles. Craddock, and HN

54 - Questioned: - Caution: Citing - vy.iiaiaun - iui.w.zci io Page 4 of supra, at 252. The Craddock court held that the trial court had abused its discretion in overruling the appellants motion to vacate a default judgment after noting that the undisputed [**1O] proof showed that... failure to file an answer before judgment was taken was due to accidental circumstances sufficient to refute the charge of inexcusable negligence. Craddock, supra, at 253. Based on these particular circumstances the Craddock court found that the appellant had made a... meritorious equitable showing for relief. Craddock, supra, at 253. Reviewing this case on its own facts as the Craddock holding requires that we do, we are of the opinion that the trial court did not abuse its discretion in refusing to grant appellant s motion for new trial on equitable grounds. The trial judge found that appellant s failure to file an answer was either intentional or the result of conscious indifference and as discussed above, the record clearly supports this finding. Furthermore, while it is true, as appellant argues, that equity generally requires that no person be required to answer for the debt of another, it is also true that appellant could have avoided the resulting default judgment by merely taking some affirmative action toward complying with the required answer to the writ. Instead appellant bank did nothing. Appellant s argument that it is [**11] being punished even though it attempted to comply with the writ in good faith is not borne out by the record. The fact that appellant s lack of action was allegedly due to its mistaken reliance on an informal local practice which admittedly did not require strict compliance with the rules governing garnishment procedures does not excuse their total lack of action on the matter. Finally, the fact that the judgment entered was for a sum much greater than that which appellant would have been liable for had they complied with the garnishment procedure does not ipso facto require that a new trial be granted. HNsThe validity of a default judgment cannot be tested merely by the amount of the judgment ultimately entered. Appellant s penalty for ignoring the procedure for filing an answer should be no different than that suffered by any other default defendant under similar circumstances. Appellant s second point of error is overruled. In its third point of error, appellant First National complains that the return of service on the Writ of Garnishment was defective and therefore cannot be used to support the default judgment. First National claims that the return does not state the manner and [**12] method of service as required and that the return does not contain the official signature of the sheriff or constable charged with serving the writ. It is unnecessary for us to discuss the two complaints raised by appellant under this point of error for it is clear from the record that appellant judicially admitted that it was duly served. 6?Rule 419 of the Rules of Civil Procedure provides that: any statements made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party. TEX. R. CIV. P In its brief appellant First National states that after the writ was issued it was forwarded to the Sheriff of Brazos County for service and that the writ was served on November 15, Appellant s brief also states that on the day the writ was served, First National was indebted to Cowart for the sum remaining in his demand deposit account. Furthermore, First National s motion for new trial had attached an affidavit of William 0. Barkley, President of First National, wherein he stated that: on November 15, 1984, I was personally delivered a copy of Peterson s Application for Writ of Garnishment after [**13] Judgment. As can be seen from the quoted materials above t*281.] First National judicially admitted that the Writ of Garnishment was duly served and there has never been any contention that they were unaware of the garnishment proceedings. In Iirsty.A.R.A.jy7anufactur/r,gCo.555 S.W.2d 141 (Tex. Civ. App. -- Fort Worth 1977, writ ref d n.r.e.), a bank president attempted to attack a default judgment on the basis that the court lacked jurisdiction over his person. After noting that the appellant in Hurst had admitted in his brief that he was duly served and filed no answer, the court held that the admission of service in his brief was sufficient evidence in the record to show service was effected, and therefore the default judgment was upheld. /j/tt, ra at 142. We are of the opinion that appellant First National, in view of its judicial admission that it was duly served, is likewise precluded from asserting that service was defective and will not support the judgment. Accordingly, appellant s third point of error is overruled. The judgment of the trial court is affirmed. Service: Get by LEX SEE Citation: 709 S.W.2d 276 View: Full Date/Time: Wednesday, October 13, :31 AM EDT Signal Legend: - Warning: Negative treatment is indicated * - O - o - Validity questioned by citing refs Possible negative treatment Positive treatment is indicated Refs. With Analysis Available Citation information available Click on any Shepard s signal to Shepardize that case, My Lexis T I Search I Research Tasks Get a Document HistOi I Qeiiv tanaiir I I Shepard s Alerts Total Litigator Transactional Advisor Counsel Selector Dossier I Sw5ch Cheni I Pielsisnces I I Lex sn I e Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved, About LexisNexis Tirrns& ondit:ons cpntact Us