ACCEPTED
14-15-00747-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
12/30/2015 12:07:20 PM
CHRISTOPHER PRINE
CLERK
In The
Fourteenth Court of Appeals FILED IN
_____________________ 14th COURT OF APPEALS
HOUSTON, TEXAS
12/30/2015 12:07:20 PM
NO. 14-15-00747-CV CHRISTOPHER A. PRINE
_____________________ Clerk
W. GARRY WALDROP DDS, INC. D/B/A LIFETIME DENTAL CARE,
Appellant
V.
GREGORY PHAM, JOHN MA AND RAYMOND DAO,
Appellees.
From Cause No. 201521720; 151st Judicial District Court
Harris County, Texas
BRIEF OF APPELLANT W. GARRY WALDROP DDS, INC.
D/B/A LIFETIME DENTAL CARE
ZIMMERMAN, AXELRAD,
MEYER, STERN & WISE, P.C.
Jennifer S. Wilson
State Bar No. 21697500
3040 Post Oak Blvd., Suite 1300
Houston, Texas 77056
713.552.1234
713.963.0859 (FAX)
E-mail: jwilson@zimmerlaw.com
ATTORNEYS FOR W. GARRY
WALDROP DDS, INC. D/B/A
LIFETIME DENTAL CARE
IDENTITY OF PARTIES AND COUNSEL
In order that members of this Court may determine disqualification and
recusal under Rule 38.1(a) of the Texas Rules of Appellate Procedure, Real Parties
In Interest certify that the following is a complete list of parties, attorneys and
other parties who may have an interest in the outcome of this proceeding:
Defendant/Appellant: W. Garry Waldrop DDS, Inc. d/b/a Lifetime
Dental Care
c/o Jennifer S. Wilson
Zimmerman, Axelrad, Meyer, Stern & Wise, P.C.
3040 Post Oak Blvd., 1300
Houston, Texas 77056
713.552.1234
713.963.0859 (FAX)
Plaintiffs/Appellees: Gregory Pham, John Ma and Raymond Dao
Ned Gill, III
Gill, Revack, Samaan & Muller, LLP
6575 West Loop South, Suite600
Bellaire, Texas 77401
713.271.8282
713.271.2112 (FAX)
Presiding Judge: Honorable Mike Engelhart
151st Judicial District Court of Harris County
201 Caroline, 11th Floor
Houston, Texas 77002
713.368.6222
/s/ Jennifer S. Wilson
Jennifer S. Wilson
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES ...................................................................................v
I. ISSUES PRESENTED.......................................................................................1
Issue No. 1: Lifetime has the right to a restricted appeal. ...............................1
Issue No. 2: The Trial Court erred in entering judgment against Lifetime
because the record shows that that there was not strict compliance with the
Texas Rules of Civil Procedure governing service of citation. .........................1
Issue No. 3: The Trial Court erred in entering judgment against Lifetime
because the record shows that the evidence was legally or alternatively
factually insufficient to support an award of damages. ....................................2
Issue No. 4: The Trial Court erred in entering judgment against Lifetime
because the record shows that the evidence was legally or alternatively
factually insufficient to support an award of attorneys’ fees. ..........................2
II. STATEMENT OF THE CASE ........................................................................2
III. STATEMENT OF FACTS ...............................................................................3
IV. SUMMARY OF THE ARGUMENT ...............................................................4
V. STANDARD OF REVIEW ...............................................................................4
VI. ARGUMENT AND AUTHORITIES ..............................................................4
Issue No. 1 Restated: Lifetime has the right to a restricted appeal. ............4
Issue No. 2 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that that there was not strict compliance
with the Texas Rules of Civil Procedure governing service of citation. ..........6
Issue No. 3 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that the evidence was legally or
alternatively factually insufficient to support an award of damages. ...........10
Issue No. 4 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that the evidence was legally or
alternatively factually insufficient to support an award of attorneys’ fees. .15
iii
VII. CONCLUSION ........................................................................................ 16
VIII. PRAYER........................................................................................................16
APPENDIX .............................................................................................................19
iv
INDEX OF AUTHORITIES
CASES
Aetna Ins. Co. v. Klein, 325 S.W.2d 376 (Tex. 1959) .............................................12
Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004) ..............................5, 6
B&W Sup. v. Beckman, 305 S.W.3d 10 (Tex. App. – Houston [1st Dist.]
2009, pet. denied)..................................................................................................11
Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591 (Tex. App. –
Dallas 1989, no writ) ............................................................................................10
Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789 (Tex. App. –
Houston [1st Dist.] 1999, no pet.)............................................................................9
Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex. App. – San
Antonio 2002, pet. denied) .....................................................................................7
Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958 (Tex. App. –
Texarkana 1975, no writ) ........................................................................................7
Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) .............................................................11
Cates v. Pon, 663 S.W.2d 99 (Tex. Civ. App. – Houston [14th Dist.] 1983,
writ ref’d n.r.e.) .......................................................................................................6
Chesney v. Buddrus, 1988 WL 34838, at *1 (Tex. App. – Houston [1st Dist.]
April 14, 1988, no writ)(not designated for publication) .......................................9
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................10
Dallas Railway and Terminal Co. v. Bankston, 51 S.W.2d 304 (Tex. 1932) .........12
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (Tex. App. –
Houston [14th Dist. 2014, no pet.).........................................................................16
General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d
942 (Tex. 1991).......................................................................................................5
Hercules Concrete Pumping Serv. v. Bencon Mgmt. & Gen. Contracting Corp.,
62 S.W.3d 308 (Tex. App. – Houston [1st Dist.] 2001, pet. denied) ......................7
Industrial Models, Inc. v. SNF, Inc., 2014 WL 3696104, at *4 (Tex. App. –
Fort Worth, July 24, 2014, no pet.).........................................................................9
Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650
(Tex. 2009)............................................................................................................15
Jackson v. Gutierrez, 77 S.W.3d 898 (Tex. App. – Houston [14th Dist.] 2002,
no pet.) ..................................................................................................................14
Lytle v. Cunningham, 261 S.W.3d 837 (Tex. App. – Dallas 2008, no pet.) ..............8
v
Marquis Acquisitions, Inc. v. Steadfast Ins., 409 S.W. 3d 808 (Tex. App. –
Dallas 2013, no pet.) .............................................................................................11
Mays v. Pierce, 203 S.W.3d 564 (Tex. App. – Houston [14th Dist.] 2006,
pet. denied)............................................................................................................14
Nelson v. Najm, 127 S.W.3d 170 (Tex. App. – Houston [1st Dist.] 2003,
pet. denied)............................................................................................................11
Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269 (Tex. 1997)
(per curiam) .............................................................................................................6
North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714 (Tex. App. –
Austin 2003, pet. denied) ........................................................................................7
Ortiz v. Avante Ville at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App. –
Corpus Christi 1996, writ denied) ..........................................................................8
Pace Corp. v. Jackson, 284 S.W.2d 340 (Tex. 1955)..............................................13
Polansky v. Berenji, 393 S.W.3d 362 (Tex. App. – Austin 2012, no pet.)..............15
Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994)(per curiam) ...............6
Prudential Ins. Co. of America, Inc. v. Black, 572 S.W.2d 379 (Tex. Civ. App.—
Houston [14th Dist.] 1978, no writ)......................................................................12
Qadurra v. Indo-European Foods, Inc. 141 S.W.3d 882 (Tex. App. –
Dallas 2004, pet. denied) ......................................................................................14
Ramsey v. Jones Enterprises., 810 S.W.2d 902 (Tex. App. – Beaumont 1991,
writ denied) ...........................................................................................................12
Santex Builders, LLC v. Guefen Constr., LLC, 2009 WL 4810286, at *4
(Tex. App. – Houston [14th Dist.], December 15, 2009, no pet.) ........................10
Scucchi v. Woodruff, 503 S.W.2d 356 (Tex. Civ. App. – Fort Worth 1973,
no writ) ....................................................................................................................9
Union Pacific R. Corp. v. Legg, 49 S.W.3d 72 (Tex. App. – Austin 2001,
no pet.) .................................................................................................................10
Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411 (Tex. Civ. App. –
Fort Worth 1962, no writ) .......................................................................................9
Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884
(Tex. 1985)..........................................................................................................6, 8
Verlander Enter, Inc. v. Graham, 932 S.W.2d 259 (Tex. App. – El Paso 1996,
no writ) ....................................................................................................................9
Wachovia Bank v. Gilliam, 215 S.W.3d 848 (Tex. 2007) .........................................6
vi
Whitaker v. Rose, 218 S.W.3d 216 (Tex. App. – Houston [14th Dist.] 2007,
no pet.) ..................................................................................................................14
White v. Bath, 825 S.W.2d 227 (Tex. App. – Houston [14th Dist.] 1992,
writ denied) ...........................................................................................................12
Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) .........................................................10
RULES
Tex. R. App. P. 26.1(c) and 30 ..................................................................................5
Tex. R. App. P. 30 ......................................................................................................5
TEX. R. APP. P. 9.4(i) ................................................................................................18
Tex. R. Evid. 1002 ...................................................................................................12
STATUTES
Tex. Civ. Pr. & Rem. Code § 38.001 (1) and (8).....................................................15
Tex. Civ. Pr. & Rem. Code § 38.001 et seq.............................................................15
Tex. Civ. Pr. & Rem. Code § 38.002(2) ..................................................................16
vii
ABBREVIATIONS AND RECORD REFERENCES
“C.R.” followed by a number refers to the Clerk’s Record filed in this
case.
“Supp. C.R.” refers to a document which has been requested but not yet
signed by the Court, and which may be contained within a
Supplemental Clerk’s Record.
“R.R.” followed by a page number refers to that certain page of the
Reporter’s Record taken on June 29, 2015.
viii
In The
Fourteenth Court of Appeals
_____________________
NO. 14-15-00747-CV
_____________________
W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME DENTAL CARE,
Appellant
V.
GREGORY PHAM, JOHN MA AND RAYMOND DAO,
Appellees.
From Cause No. 201521720; 151st Judicial District Court
Harris County, Texas
BRIEF OF APPELLANT W. GARRY WALDROP DDS, INC.
D/B/A LIFETIME DENTAL CARE
TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
COMES NOW W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME
DENTAL CARE (“Lifetime”), Appellant herein, and files its Brief.
I. ISSUES PRESENTED
Issue No. 1: Lifetime has the right to a restricted appeal.
Issue No. 2: The Trial Court erred in entering judgment against Lifetime
because the record shows that that there was not strict compliance with the
Texas Rules of Civil Procedure governing service of citation.
1
Issue No. 3: The Trial Court erred in entering judgment against Lifetime
because the record shows that the evidence was legally or alternatively
factually insufficient to support an award of damages.
Issue No. 4: The Trial Court erred in entering judgment against Lifetime
because the record shows that the evidence was legally or alternatively
factually insufficient to support an award of attorneys’ fees.
II. STATEMENT OF THE CASE
The underlying action was brought by Gregory Pham, John Ma and
Raymond Mao (“Plaintiffs”), the Appellees herein, against W. Garry Waldrop,
DDS, Inc. d/b/a Lifetime Dental Care (“Lifetime”), the Appellant. The suit alleged
fraud and breach of contract arising from an employment relationship between the
Plaintiffs and Lifetime. (C.R. at 3-8).
No answer was filed by Lifetime and on July 1, 2015, after conducting an
evidentiary hearing, the trial court granted default judgment against Lifetime in the
aggregate amount of $111,100.00, plus pre-judgment and post-judgment interest
and attorneys’ fees. (C.R. at 19-20).
Lifetime did not participate in any proceeding before the trial court prior to
the entry of the default judgment on July 1, 2015. Further, Lifetime did not file
any post-judgment motions or request for findings of fact and conclusions of law.
(See docket omissions (Supp. C.R. at 8-10).
2
On September 1, 2015, Lifetime timely filed its notice of restricted appeal
with the district clerk. (C.R. at 23-25).
III. STATEMENT OF FACTS
Upon filing of the underlying action by Plaintiffs, Citation was issued to
Lifetime requesting service on Lifetime at Lifetime’s principal office at 970 South
Fry Road, Kay, Texas 77450. (C.R. at 9). The citation was issued on April 15,
2015 and was received by Plaintiffs’ private process server on April 17, 2015.
(C.R. at 9). The return of service indicate that service was accomplished by
delivery to “W. Garry Waldrop, DDS, d/b/a Lifetime Dental Care, defendant, in
person,” on April 20, 2015. (C.R. at 9).
On May 19, 2015, Plaintiffs filed their Motion for Default Judgment (C.R. at
10-16) and on June 29, 2015, the trial court conducted an evidentiary hearing.
Plaintiffs each testified that they had entered into a written agreement with
Lifetime, that they were to receive twenty-five percent (25%) of production and
that they had not been paid. (R.R. at 7, 8, 10, 12). Appellee Pham testified that his
damages were $58,343.00. (R.R. at 8). Appellee Ma testified that his damages
were $19,462.00. (R.R. at 10). Appellee Dao testified that his damages were
$26,759.00. (R.R. at 12, 13).
Plaintiffs’ attorney, Ned Gill, III, testified that the attorneys’ fees incurred
by Appellee Pham were $1,600.00; the attorneys’ fees incurred by Appellee Ma
3
were $1,600.00 and the attorneys’ fees incurred by Appellee Dao were $1,600.00.
(R.R. at 14).
IV. SUMMARY OF THE ARGUMENT
The judgment entered by the trial court was invalid because the record
shows that there was not strict compliance with the Texas Rules of Civil Procedure
governing service of citation. In addition, the record further indicates that
Appellees’ claim for breach of contract was factually or legally insufficient to
support an award of damages in that the trial court incorrectly considered hearsay
evidence of written agreements upon which Appellees’ claims are based. The
record further shows that Appellees’ damages were at a minimum based upon
speculation and were not properly supported by evidence appropriately segregating
the categories of damages. Further, the pleadings and evidence were either legally
or factually insufficient to support an award of attorneys’ fees.
V. STANDARD OF REVIEW
This is a restricted appeal and, as such, the review is based upon error
appearing on the face of the record. No presumption exists in favor of the actions
in the trial court.
VI. ARGUMENT AND AUTHORITIES
Issue No. 1 Restated: Lifetime has the right to a restricted appeal.
4
A restricted appeal is a procedural device available to a party who did not
participate, either in person or through counsel, in a proceeding that resulted in a
judgment against the party. Tex. R. App. P. 30. It constitutes a direct attack on a
default judgment. Id.; General Elec. Co. v. Falcon Ridge Apartments, Joint
Venture, 811 S.W.2d 942, 943 (Tex. 1991). A party filing a restricted appeal must
demonstrate the following elements: (1) appellant appealed within six months of
the date the judgment was rendered; (2) the appellant was a party to the suit; (3)
the appellant did not participate in the hearing that resulted in the judgment
complained of; (4) the appellant did not timely file a post-judgment motion,
request for findings of fact and conclusions of law or a notice of appeal by the time
permitted by Rule 26.1(c) of the Texas Rules of Appellate Procedure; and (5) error
appears on the face of the record. See, Tex. R. App. P. 26.1(c) and 30; Alexander
v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
In this case, Lifetime appealed within six months after the July 1, 2015
default judgment was entered by filing its Notice of Restricted Appeal on
September 2, 2015. Lifetime was a party to the underlying suit and did not
participate in the default judgment hearing that resulted in judgment being entered
against it. (R.R. 2, 4). Lifetime did not file any post-judgment motions or request
findings of fact or conclusions of law. (Supp. C.R. at 8-10). Error appears on the
5
face of the record as will be more fully briefed and discussed below. There is no
dispute that Lifetime meets all requirements for a restricted appeal.
Issue No. 2 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that that there was not strict compliance
with the Texas Rules of Civil Procedure governing service of citation.
If proper service in compliance with the Texas Rules of Civil Procedure is
not affirmatively shown, there is error on the face of the record. Primate Constr.,
Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994)(per curiam). For purposes of the
restricted appeal, the face of the record consists of all of the papers on file,
including the reporter’s record, at the time that judgment is entered. No extrinsic
evidence may be considered. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d
269, 270 (Tex. 1997)(per curiam); ); Alexander v. Lynda’s Boutique, 134 S.W.3d
at 848-49.
When a default judgment is challenged by restricted appeal, there are no
presumptions in favor of valid service. Wachovia Bank v. Gilliam, 215 S.W.3d
848 (Tex. 2007); Uvalde Country Club v. Martin Linen Supply Co., Inc., 690
S.W.2d 884, 885 (Tex. 1985); Cates v. Pon, 663 S.W.2d 99, 102 (Tex. Civ. App. –
Houston [14th Dist.] 1983, writ ref’d n.r.e.) Service of process was deficient in this
case and the error is apparent from the face of the record because the return of
citation reflects delivery on a person or entity other than W. Garry Waldrop, its
registered agent as stated in Plaintiffs’ Original Petition. Instead, the return shows
6
service on “W. Garry Waldrop, DDS (d/b/a Lifetime Dental Care), defendant, in
person,” which leads to confusion over whether service was attempted on the
corporate entity, which is doing business as Lifetime Dental Care, or W. Garry
Waldrop, the individual, who is not doing business as Lifetime Dental Care. In
either case, the return does not affirmatively show that the person served was the
defendant or was an individual authorized to accept service on behalf of the
corporate defendant. In addition, there is a fatal discrepancy between the corporate
defendant to whom the citation was issued and the name of the purported
“defendant” identified in the return. The return, therefore, is invalid. Benefit
Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855, 861 (Tex. App. – San Antonio
2002, pet. denied)(a return that does not identify the defendant corporation as the
entity served is invalid); Hercules Concrete Pumping Serv. v. Bencon Mgmt. &
Gen. Contracting Corp., 62 S.W.3d 308, 310-11 (Tex. App. – Houston [1st Dist.]
2001, pet. denied) (the return did not give the complete and correct name of the
defendant); North Carolina Mut. Life Ins. Co. v. Whitworth, 124 S.W.3d 714, 720
(Tex. App. – Austin 2003, pet. denied) (return omitted “Life” from defendant’s
name); Brown-McKee, Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958, 959 (Tex.
App. – Texarkana 1975, no writ) (return did not identify the defendant as a
corporation as it was identified in the petition and citation).
7
Moreover, where the citation states one name to receive service but the
record reflects that the citation was served on a person or entity with a different
name, the service of process if fatally defective. In this case, citation was issued to
W. Garry Waldrop DDS Inc. (d/b/a Lifetime Dental Care) and was served on W.
Garry Waldrop DDS, with no indication of corporate existence. Uvalde Country
Club v. Martin Linen Supply Co., 690 S.W.2d at 885 (delivering citation to “Henry
Bunting” ineffective when petition alleges that registered agent is “Henry Bunting,
Jr.”); Lytle v. Cunningham, 261 S.W.3d 837, 840-41 (Tex. App. – Dallas 2008, no
pet.) (holding service invalid when citation identifies “Mr. Chris Lytle” but return
indicates delivery on “Christopher Lytle”). While the failure to include the
corporate designation “Inc.” has been held not to invalidate service,1 the return in
this cannot be fixed merely by inserting the corporate designation after the name of
the party served, W. Garry Waldrop DDS, defendant, because there is no further
indication that process was served on an individual with the capacity to accept the
petition and citation on behalf of the corporation. This omission distinguishes the
instant case from the factual circumstances in Ortiz v. Avante Ville at Corpus
Christi, Inc., 926 S.W.2d 608 (Tex. App. – Corpus Christi 1996, writ denied),
where the citation and return of service specifically stated that service was to be
effected upon the corporate defendant by service on “Pat Wiggins Operations
1
See Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 612 (Tex. App. – Corpus
Christi 1996, writ denied).
8
Specialist.” No such information is contained in the return of service in this case.
The Court is left with the puzzle of who was actually served, the corporation – and,
if so, what individual with authority to accept service was served - or the individual
– who is not a party? Because the record does not affirmatively demonstrate that
Plaintiffs’ Original Petition and citation was served on an individual with authority
to accept them on behalf of the corporate defendant, Plaintiffs’ attempted service is
invalid and of no effect. Barker CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789,
791 (Tex. App. – Houston [1st Dist.] 1999, no pet.); Verlander Enter, Inc. v.
Graham, 932 S.W.2d 259, 261 (Tex. App. – El Paso 1996, no writ).
Further, there is no statement in the record that establishes compliance with
Rule 108, which requires a sworn statement from the process server that he or she
is disinterested in the suit. This omission is fatally defective and mandates reversal
of the default judgment. Chesney v. Buddrus, 1988 WL 34838, at *1 (Tex. App. –
Houston [1st Dist.] April 14, 1988, no writ) (not designated for publication);
Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411, 412-13 (Tex. Civ. App. – Fort
Worth 1962, no writ); Scucchi v. Woodruff, 503 S.W.2d 356, 357-59 (Tex. Civ.
App. – Fort Worth 1973, no writ); Industrial Models, Inc. v. SNF, Inc., 2014 WL
3696104, at *4 (Tex. App. – Fort Worth, July 24, 2014, no pet.).
Strict compliance is determined by whether the exact procedural
requirements have been met, not whether the intended party received notice of the
9
lawsuit. Union Pacific R. Corp. v. Legg, 49 S.W.3d 72, 77 (Tex. App. – Austin
2001, no pet.). Even actual notice without proper service is not sufficient to
convey jurisdiction on the trial court to render default judgment against Lifetime.
Wilson v. Dunn, 800 S.W.2d 833, 836-37 (Tex. 1990); Santex Builders, LLC v.
Guefen Constr., LLC, 2009 WL 4810286, at *4 (Tex. App. – Houston [14th Dist.],
December 15, 2009, no pet.). Because Plaintiffs did not strictly comply with the
rules relating to the issuance of citation, the manner and mode of service and the
return of process, the default judgment against Lifetime cannot be sustained.
Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591, 592 (Tex. App. –
Dallas 1989, no writ).
Issue No. 3 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that the evidence was legally or
alternatively factually insufficient to support an award of damages.
In a legal sufficiency challenge, the appellate court must sustain the
challenge if the record shows one of the following (1) a complete absence of a vital
fact; (2) rules of law or evidence bar the court from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact
is no more than a scintilla; or (4) the evidence conclusively establishes the opposite
of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In a
restricted appeal, the sufficiency of the evidence may be challenged on the face of
the record. In reviewing a factual insufficiency of the record, the appellate court
10
conducts a neutral review of all of the evidence. Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986). An appellate court reverses for factual insufficiency only if the
ruling is so against the great weight and preponderance of the evidence as to be
manifestly erroneous or unjust. Nelson v. Najm, 127 S.W.3d 170, 174 (Tex. App.
– Houston [1st Dist.] 2003, pet. denied).
In order to recover on an action for breach of contract, the plaintiff must
provide competent evidence of the following:
a. There is a valid, enforceable contract.
b. The plaintiff is a proper party to sue for breach of contract.
c. The plaintiff performed, tendered performance of, or was excused
from performing its contractual obligations.
d. The defendant breached the contract.
e. The defendant’s breach caused the plaintiff injury.
B&W Sup. v. Beckman, 305 S.W.3d 10, 16 (Tex. App. – Houston [1st Dist.] 2009,
pet. denied); Marquis Acquisitions, Inc. v. Steadfast Ins., 409 S.W. 3d 808, 813-14
(Tex. App. – Dallas 2013, no pet.). Each of the plaintiffs in this case testified at
the default judgment hearing that he had entered into a written contract with
Lifetime. (R.R. at 7, 10, 12). Yet no copy of any written agreement appears in the
record, either attached to Plaintiffs’ Original Petition as an exhibit or introduced
11
into evidence at the hearing on Plaintiffs’ Motion for Default Judgment. (C.R. at
3-8),(R.R. at 1-37).
Where, as here, the testimony offered concerns the contents of a writing, the
best evidence rule comes into play. Tex. R. Evid. 1002. Plaintiffs each testified to
terms of payment contained in the written agreement each had with Lifetime, yet
no written contract appears in the record. The best evidence of the terms of
compensation and payment contained in the written agreements is the document
itself and the trial court erred in admitting hearsay evidence of the Plaintiffs
offered to prove the contents of those agreements. Aetna Ins. Co. v. Klein, 325
S.W.2d 376, 379-80 (Tex. 1959); White v. Bath, 825 S.W.2d 227, 231 (Tex. App. –
Houston [14th Dist.] 1992, writ denied); Prudential Ins. Co. of America, Inc. v.
Black, 572 S.W.2d 379, 380 (Tex. Civ. App.—Houston [14th Dist.] 1978, no writ);
Ramsey v. Jones Enterprises., 810 S.W.2d 902, 905 (Tex. App. – Beaumont 1991,
writ denied). Moreover, there is a general rule that incompetent evidence, even
when admitted without objection, has no probative force and will not support a
judgment. Prudential Ins. Co. of America, Inc., 572 S.W. 2d at 379, citing with
approval Dallas Railway and Terminal Co. v. Bankston, 51 S.W.2d 304, 309 (Tex.
1932).
12
The absence of competent proof of a critical element of Plaintiffs’ breach of
contract claim – the existence of a valid, enforceable contract - appears on the
record and merits reversal of the trial court’s judgment.
Lifetime further contends that the evidence was either legally or factually
insufficient evidence to support the award of damages to the Plaintiffs. Plaintiffs’
Original Petition clearly states that at the time it was filed Plaintiffs were uncertain
whether they had been paid all compensation to which they allege they were
entitled and further states that damages will be based, at least in part, on
“information known or expected to be known during the course of the case.” (C.R.
at 4, ¶6; 6, ¶12). The reporter’s record certainly does not indicate whether the
Plaintiffs, testifying individually as to their alleged damages, were stating an
amount that was known as of the date of testimony or whether their testimony on
this issue was rank speculation. (R.R. at 7, 8,10, 12, 13).
While Plaintiffs are not foreclosed from a remedy for the lack of the ability
to provide mathematical certainty as to the value of their damages, they are
required to show that certainty of the fact of damages. Pace Corp. v. Jackson, 284
S.W.2d 340, 348 (Tex. 1955). There is no such evidence, even minimal, in the
record.
Moreover, there was no testimony offered by the Plaintiffs that they had
performed or tendered performance of any services pursuant to their written
13
contracts. The only evidence on the record that might be construed as some
support for this element is the allegation in Plaintiffs’ Original Petition that
“Plaintiffs provided the services as agreed.” (C.R. at 5) Such a conclusory
statement is hardly proof of performance.
Plaintiffs have pleaded for damages consisting of (1) loss of income and (2)
financial loss. (C.R. at 6, ¶13). The measure of damages for breach of contract is
normally compensation for a party’s expectation interest in the contract, or “benefit
of the bargain” damages. Mays v. Pierce, 203 S.W.3d 564, 577 (Tex. App. –
Houston [14th Dist.] 2006, pet. denied); Qadurra v. Indo-European Foods, Inc. 141
S.W.3d 882, 888-89 (Tex. App. – Dallas 2004, pet. denied). However, “loss of
income” and “financial loss,” although arguably including benefit of the bargain
damages, may also include loss of production, loss of market value, loss of
investment and loss of business reputation. There is no attempt by the Plaintiffs in
their testimony to segregate each damage element and the trial court did not
specify the damage elements it was awarding. There is, therefore, no way for this
Court to determine if the trial court has awarded damages for which no evidence
was offered or damages that are not allowed by law. Therefore, this Court must
reverse the damage award and remand for a new trial. See Whitaker v. Rose, 218
S.W.3d 216, 224 (Tex. App. – Houston [14th Dist.] 2007, no pet.); Jackson v.
Gutierrez, 77 S.W.3d 898, 903-4 (Tex. App. – Houston [14th Dist.] 2002, no pet.).
14
Issue No. 4 Restated: The Trial Court erred in entering judgment against
Lifetime because the record shows that the evidence was legally or
alternatively factually insufficient to support an award of attorneys’ fees.
Texas law does not allow recovery of attorneys’ fees unless authorized by
statute or contract. Polansky v. Berenji, 393 S.W.3d 362, 368 (Tex. App. – Austin
2012, no pet.). In order to recover attorneys’ fees, a party must plead with
specificity the basis for their recovery. Absent express language in a contract or a
codified right in a statue, the trial court has no inherent authority to award
attorneys’ fees. Intercontinental Group P’ship v. KB Home Lone Star L.P., 295
S.W.3d 650 (Tex. 2009).
Plaintiffs’ Original Petition does not designate a basis for the award of
attorneys’ fees, whether they are being sought pursuant to a provision in the absent
written contracts between Plaintiffs and Lifetime or whether they are being sought
pursuant to Tex. Civ. Pr. & Rem. Code § 38.001 et seq. The pleadings, therefore,
do not provide a legal basis for an award of attorneys’ fees.
Nor have Plaintiffs established a right to attorneys’ fees pursuant to statute.
Although Chapter 38 of the Texas Civil Practice and Remedies Code allows for the
recovery of attorneys’ fees for (1) rendered services, or (2) if the claim is for an
oral or written contract, there was no proof offered by the Plaintiffs that they had
rendered or tendered performance of services. Tex. Civ. Pr. & Rem. Code § 38.001
(1) and (8). Further, the factual and legal insufficiency of the evidence regarding
15
Plaintiffs’ claims for damages render their claims for attorneys’ fees - which are
necessarily dependent upon a sustainable award of damages - erroneous and
merits reversal of the trial court judgment.
Chapter 38 of the Texas Civil Practice and Remedies Code specifies the
bases for recovering attorneys’ fees in the absence of an express contractual
provision or other statutory authority. Presentment of a claim to the opposing
party is required. Tex. Civ. Pr. & Rem. Code § 38.002(2). The record does not
reflect that presentment of Plaintiffs’ claims to Lifetime was made. Genender v.
USA Store Fixtures, LLC, 451 S.W.3d 916, 924-28 (Tex. App. – Houston [14th
Dist. 2014, no pet.).
VII. CONCLUSION
For the reasons stated herein, Lifetime respectfully requests that the
Court reverse the trial court’s judgment and remand this matter to the trial court for
a new trial, and for such other and further relief at law and in equity to which it is
entitled. Further, the Appellant prays that all cost incurred related to this appeal be
granted against the Appellees.
VIII. PRAYER
WHEREFORE, PREMISES CONSIDERED, W. Garry Waldrop, DDS, Inc.
d/b/a Lifetime Dental Care, requests that this Court reverse the trial court judgment
16
and remand the case to the trial court, and for such other relief to which Lifetime
may be entitled.
Respectfully submitted,
ZIMMERMAN, AXELRAD,
MEYER, STERN & WISE, P.C.
By: /s/ Jennifer S. Wilson
Jennifer S. Wilson
State Bar No. 21697500
3040 Post Oak Blvd., Suite 1300
Houston, Texas 77056
713.212.2674 (Direct)
713.552.1234 (Main)
713.212.2790 (Direct Facsimile)
jwilson@zimmerlaw.com
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of January, 2016, a true and correct
copy of Appellant’s Brief was served by eFile Texas Website upon the following
counsel of record:
Mr. Ned Gill, III
Gill, Revack, Samaan & Muller, LLP
6575 West Loop South, Suite 600
Bellaire, Texas 77401
Attorneys for Appellees
/s/ Jennifer S. Wilson
Jennifer S. Wilson
17
CERTIFICATE OF COMPLIANCE
The undersigned certifies that Appellant’s Brief complies with the type and
volume requirements pursuant to Rule 9 of the Texas Rules of Appellate
Procedure:
• This Brief contains 3,360 words, excluding the portion of the Brief
exempted under TEX. R. APP. P. 9.4(i);
• This Response has been prepared using Microsoft Word 2010 word-
processing software. The typeface is a proportionally spaced typeface using
Times New Roman 14 point font (except for footnotes which use a 12 point
font)
/s/ Jennifer S. Wilson
Jennifer S. Wilson
18
In The
Fourteenth Court of Appeals
_____________________
NO. 14-15-00747-CV
_____________________
W. GARRY WALDROP DDS, INC. D/B/A LIFETIME DENTAL CARE,
Appellant
V.
GREGORY PHAM, JOHN MA AND RAYMOND DAO,
Appellees.
From Cause No. 201521720; 151st Judicial District Court
Harris County, Texas
APPENDIX
1. Final Judgment C.R. 19-20
2. Return of Citation C.R. 9
3. Plaintiffs’ Original Petition C.R. 3-8
4. Plaintiffs’ Motion for Default Judgment C.R. 10-16
5. Relevant Excerpts from Hearing on Plaintiffs’
Motion for Default Judgment, June 29, 2015 R.R. 1-24
6. Trial Court Docket Sheet Supp. C.R. 8-10
7. Notice of Appeal C.R. 23-25
19
8. Tex. R. App. Proc. 30
9. Tex. R. App. Proc. 26.1(c)
20
6/29/201511:23LM AM
Chris Daniel - District Clerk Harris County
Envelope No. 5858153
By: VERONICA GONZALEZ
Fifed: 6/29/2015 11:23U4 AM
NO. 2015-21720 Pgs-2
DC
GREGORY PHAM, JOHN MA § IN THE DISTRICT COURT 5
And RAYMOND DAO
Plaintiffs, §
§
V. § 151ST JUDICIAL DISTRICT
§
W, GARRY WALDROP, ODS, INC. §
d/fo/a LIFETIME DENTAL CARE §
Defendant § HARRIS COUNTY, TEXAS
At the hearing on this cause, Plaintiffs appeared through their attorney of record.
Defendant although duly cited to appear and answer herein, has failed to file an answer
within the time allowed by law
The Court has considered the pleadings and records on file in this cause and the.
evidence and is of the opinion that judgment should be rendered for Plaintiffs.
...
It is accordingly ADJUDGED that GREGORY PHAM, Plaintiff, recover from W.
GARRY WALDROP, DOS, INC., d/b/a LIFETIME DENTAL CARE, Defendant, an
independent JUDGMENT for-
1 $ 58.343 as the principal amount due to GREGORY PHAM;
2 £ 2,917 _ as interest on lire principal amount to the date of judgment;
3. i 1,600 as reasonable and necessary attorney’s fees;
4, all taxable costs of court;
5. post-judgment interest at the rate of five percent per year on the total
judgment from the date of judgment until paid.
It is accordingly ADJUDGED that JOHN MA, Plaintiff, recover from W. GARRY
WALDROP, DOS, INC. d/b/a LIFETIME DENTAL CARE, Defendant, an independent
JUDGMENT for-
1. S 19,462 as the principal amount due to JOHN MA,
2. $ 1,462 as interest on the principal amount to the date of judgment;
Page t of 2
19
3. as attorney's fees;
A, a![ taxable costs of court;
5 post-judgment interest at the rate of five percent per year on the total
judgment from the date of judgment until paid,
....
it is accordingly ADJUDGED that RAYMOND DAO, Plaintiff, recover from W.
GARRY WALDROP, DDS, INC.. d/b/a LIFETIME DENTAL CARE, Defendant, an
independent JUDGMENT for-
1. $ 26,755 as the principal amount due to RAYMOND DAO;
2.
3,
4.
$
$
2,157
1,600 ... as interest on the principal amount to the date of judgment;
as attorney's fees;
all taxable costs of court;
5, post-judgment interest at the rate of five percent per year on the total
judgment from the date of judgment until paid,
it is ORDERED that each of Plaintiffs' Judgments are independent of the other
and each shall have an independent right to have all writs of execution and other
process necessary to enforce their respective judgments,
This Final Judgment finally disposes of all parties and all claims and is
appealable,
SIGNED on
Signed:
7
7/1/2015
JUDGE PRESIDING
Page 2 of 2
20
ul CAUSE NO. 2 0152:172 0
s
C-J *
i
’v. RECEIPT NO , 0.00 CIV
********** TR # '73121915
S PLAINTIFF: PHAM, GREGORY in The 151st
tJ vs „ Judicial District Court
3 DEFENDANT: W GARRY WALDROP DDE INC (D/B/A LIFETIME DENTAL CAR of Harris County, Texas
E 15 1ST DISTRICT COURT
Houston. TX _
CITATION
jjj THE STATE OF TEXAS
B County of Harris
2f
TO: W GARRY WALDROP DDS INC (D/B/A LIFETIME DENTAL CARE) Time:
570 SOUTH FRY ROAD KATY TX 77450 Hflrrla £0urity, 9122
By. TolElli
c
Attached is a copy of PLAINTIFF * S ORIGINAL PETITION
This instrument was filed on the 15 fh day of April, 2 015. in the above cited cause number
and court. The instrument attached describes the claim against you.
YOU HAVE BEEN SUED, You may employ an attorney. If you or your attorney do not file a
written answer with the District Clerk who issued this citation by 1Q:0D a.m. on the Monday
next following tho expiration of 20 days after you were served this citation and petition,
a default judgment may be taken against you,
TO OFFICER SERVING:
This citation was issued on 15th day of April, 201S, under my hand and
seal of said court.
N.
/'tf H4»* GARRY WALDROP at 902 Frostwood, No. 186, Houston,
Texas 77024 or anywhere the registered agent or a corporate officer may be located.
Jurisdiction end Venue
4, This Court has jurisdiction over the Defendant because W. GARRY
WALDROP, DDS, ING. d/h/a LIFETIME DENTAL CARE is a Texas Corporation doing
business in the City of Katy, County of Harris and State of Texas, The Court has
jurisdiction over the controversy because the subject matter in controversy is within the
jurisdictional limits of this court
5, Venue is proper in Harris County, Texas, because the events underlying this
lawsuit occurred in Harris County, Texas*
Factual Background
6. The Plaintiffs were employed as contract dentists for W. GARRY WALDROP,
DDS, Inc, d/b/a LIFETIME DENTAL CARE {hereinafter "WALOROF}. The parties
entered into agreements; wherein WALDROP agreed with each Plaintiff that each
Plaintiff wouid receive compensation for services provided under the agreement,
equaling 25 percent or more >of those revenues collected for the services of the Plaintfff-
dentist It is Plaintiffs' Information and belief that Plaintiffs were not paid in fuH the
amounts agreed upon by the parties, if is further Plaintiffs1 information and belief that
Defendant engaged iri allowing discounts or fabricating discounts to patients fh an effort
to conceal collections, thereby reducing the amount WALDROP wouid he obligated
under the agreements to pay Piaintiff-dentists.
Claim for FRAUD against
W, GARRY WALDROP, DDS, iNC. d/b/a LIFETIME DENTAL CARE.
7. W, GARRY WALDROP, DDS, INC. d/b/a LIFETIME DENTAL CARE
Page 2 of £
4
concealed or failed to disclose certain feds to the Plaintiffs; W. GARRY WALDROP,
PPG; INC, mm LIFETIME: DENTAL CARE had a ddy to disclose certain facts to
Pfelhflffs, these fads were material and W, GARRY WALDROP, DDS, INC: d/b/a
LIFETIME DENTAL QARE knew or was ignorant or did not have an opportunity to
discover the facts, or W. GARRY WALDROP, DOS, INC. dtota LIFETIME DENTAL
CARE was deliberately silent when It had a duty to speak. Plaintiffs were Injured from
Defendant's conduct.
Claim for BREACH OF CONTRACT against
W. GARRY WALDROP, DDS, INC. mm
LIFETIME DENTAL CARE.
8. GREGORY PHAM, JOHN MA and RAYMOND DAO where ell contract
employees for W. GARRY WALDROP, Dpfc INC. dfc/a LIFETIME DENTAL CARE.
WALDROP agreed to pay compensation for services provided to WALDROP by
GREGORY PHAM, JOHN MA and RAYMOND DAO. Piainiiffs provided the services as
agreed, bpt WALDROP failed So pay td RainSffs the full amount of compensation as
agreed. As a result of said breach of eontraoh Plaintiffs have incurred damages and/or
financlanoss:
Conditions Precedent
£L All conditions precedent required of claimants under the taw have been
performed and/or have occurred.
Attorney Fees
1C. GREGORY PHAM, JOHN MA and RAYMOND DAO re-aliege and
incorporate herein, by referenceÿ the same as if My copied and set forth at length, the
factual allegations set out in the Petition.
Page $ of S
5
tl. GREGORY PHAM, JOHN MA and RAYMOND DAO are entitled to attorney
fees incurred in the prosecution of this suit, and m the event of a successful appeal of
the judgment, GREGORY PHAM, JOHN MA and RAYMOND DAO are entitled to
attorney fees for the appeal,
Damages
12. By reason erf the above and foregoing, GREGORY PHAM. JOHN MA and
RAYMOND DAO have been damaged in the sum: of up to hut no more than the
maximum Jurisdictional limits of this Court. This amount Is based on the current status
of the case and the information known or expected to be known during the course of the
case, GREGORY PHAM, JOHN MA and RAYMOND DAO reserve the right; to adjust
this amount as the damages ate developed-
it. As a direct or proximate result: of the occurrence made the basis of diis
lawsuit, GREGORY PHAM, JOHN MA- and RAYMOND DAO were caused to suffer
damage, loss and injury, in addition GREGORY PHAM, JOHN MA and RAYMOND
DAO. have suffered;-
(a) Loss of income;
fb) Finandajioss;
interest
14, GREGORY PHAM, JOHN MA and RAYMOND DAO 'Would request
prejudgmeht and post-judgment interest at the maximum legal rate compounded daily
oh both the principal and all penalties from defendants.
Amendments
Page 4 of 6
6
m GREGORY PHAM, JOHN MA and RAYMOND DAO spedfioaily reserve the
right to amend and plead such other and different points as further discovery is made: in
this cause of action*
dory Trial Demand
16, GREGORY PHAM. JOHN MA and RAYMOND DAO hereby make their
demand for trial by jury.
Prayer for Relief
17. WHEREFORE, PREMISES CONSIDERED, GREGORY PHAM, JOHN MA and
RAYMOND DAO prey that Defendant W. GARRY WALDROP, DDS, fNC. d/bm
LiFETiMEiDENTAL CARE be duty cited to appear and answer herein; and that, upon a
ftml trial of this cause, that GREGORY PHAM, JOHN MA and RAYMOND DAO
recover;
a. judgment against Defendant for the damages as set forth above, in ah smpurti
within the jurisdictional limits of this Gourt octhe maximum amount stated hereih;
h interest pn the judgment at the legal rate Norn date of judgment until paid in
full;
a prejudigment interest from the date of the incident to the data of Judgment on
the; damagesas ajowed bylaw;
4 exemplary damages;
e. costs of court;
f. reasonable and necessary attorney fees; and
Page'S pfe
7
g. such other and further relief, both general and spedal, at law or in equity, to
which GREGORY PHAM, JOHN MA and RAYMOND DAO may show himself to be
justly entitled.
Respectfully submitted,
GILL REVACK SAMAAN & MULLER, LLP
6575 West Loop South, Suite 600
Bellaire, Texas 77401
Tel: (713) 271-8282
Fax: (713) 271-2112
£
By:.
NED GILL, M
State Bar No. 07921400
Attorney for Plaintiffs GREGORY PHAM,
JOHN MA and RAYMOND DAO
Page 6 of 6
8
5ÿ1 a'2015 2:15-42 PM
Chris Daniel - Dlslriol Clerk Harris Coenly
EnvalopE JJo. 5341703
By: JIMMY RODRIGUEZ
Fifed; 5/1a'2G15 2:15:42 PM
NO. 2015-31720
GREGORY PHAM, JOHN MA § IN THE DISTRICT COURT
And RAYMOND DAO
Plaintiffs, §
§
V, § 151ST JUDICIAL DISTRICT
§
W, GARRY WALDROP, DDS, INC. §
d/b/a LIFETIME DENTAL CARE §
Defendant. § HARRIS COUNTY, TEXAS
MOTION FOR DEFAULT JUDGMENT
NOW COMES GREGORY PHAM, JOHN MA and RAYMOND DAO, hereinafter
Plaintiffs, and file this Motion for Default Judgment, and in support hereof, shows the
court the following:
1„ Plaintiffs filed suit agamst Defendant, W, GARRY WALDROP, DDS, INC.
D/B/A LIFETIME DENTAL CARE on April 15, 2015, seeking damages for fraud and
breach of contract,
2. Defendant, W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME DENTAL
CARE, was served with citation on April 17, 2015. Defendant, W. GARRY WALDROP,
DDS, INC. D/8/A LIFETIME DENTAL CARE, has failed to appear or file an answer
within the time allowed by law and has wholly made default. The citation with proof of
service of Defendant has been on file with the clerk of the court ten days, exclusive of
the day of filing and the day of judgment.
3, The following documents are attached to this Motion:
1, Certificate of Last Known Maiimg Address
2. Nonmilitary Affidavit
WHEREFORE, premises considered, Plaintiffs pray that the Court enter
judgment against Defendant, W. GARRY WALDROP, DDS, INC. D/B/A LIFETIME
DENTAL CARE; that Plaintiffs recover costs expended in filing this suit; that Plaintiffs
recover prejudgment and postjudgment interest; and that Plaintiffs have such other and
further relief at law or in equity to which Plaintiffs may be justly entitled.
Respectfully submitted,
GILL REVACK SAMAAN & MULLER, LLP
Page 1 of 2
10
6575 West Loop South, Suite 600
Beiiaire, Texas 77401
Tel (713)271-8282
Fax. (713) 271-21ÿ
/
By: J
NED GILL, til
Texas Bar No, 07921400
Email: nedgiij 3 j®qrslegaL com
Attorney for Plaintiffs
Pago t of 2
11
5/19/2015 2:15-42 PM
Chris Daniel - DIslricL Clerii Hamis County
Envelope Na. 5341703
By: JtMMY RODRIGUEZ
Filed; 5/19/2015 2:15:42 PM
NO. 2015-21720
GREGORY PHAM, JOHN MA § IN THE DISTRICT COURT
And RAYMOND DAO
Plaintiffs, §
§
V, § 151ST JUDICIAL DISTRICT
§
W, GARRY WALDROP, DPS, INC. §
d/b/a LIFETIME DENTAL CARE §
Defendant § HARRIS COUNTY, TEXAS
NONMILITARY AFFIDAVIT
BEFORE MEr the undersigned authority, on this day personally appeared NED
GILL, III, who swore on oath that the following facts are true;
"My name is NED GILL, III. I am over 18 years of age, of sound mind, and fully
competent to make this affidavit, i have personal knowledge of the facts stated herein
and they are aI! true and correct.
NTo the best of my belief and knowledge, W. GARRY WALDROP, DDS, INC.,
d/b/a LIFETIME DENTAL CARE is not currently in military service and has not been in
military service since this suit was filed.”
SIGNED on 1 /
/ /
Respectfully submitted,
GILL REVACK SAMAAN & MULLER, LLP
6575 West Loop South, Suite 600
Betlaire, Texas 7/401
Tel. (713} 271-8282
Fax. (713) 271,2.} 12
:ÿÿÿ
By:
NED GILL, III
Texas Bar No. 07921400
Email: nedgili3@orsiegai.com
Attorney for Plaintiffs
Page 1of 2
12
SWORN TO BEFORE ME on
OV/ÿ,14 d&i*! .
* V.)
REBECCA SMITH
jÿdLÿ'Q 1UY COMMISSION EXPIRES
JANUARY 20, 2019
=ÿbjjik2£e ’>TYyi,uC)
Notary Public, State of te xn >
Page 2 of 2
13
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5/19/2015 3:21:59 PM
Chris Daniel - Dislricl Clerk Harris Counly
Envelope No. 5344962
By: JIMMY RODRIQUEZ
Filed; 5/19/2015 3:21:59 PM
NO. 2015-21720
GREGORY PHAM, JOHN MA § IN THE DISTRICT COURT
And RAYMOND DAO
Plaintiffs, §
§
V. § 151ST JUDICIAL DISTRICT
§
W, GARRY WALDROP, DOS, INC. §
mid LIFETIME DENTAL CARE §
Defendant, § HARRIS COUNTY, TEXAS
NOTICE OF HEARING
PLEASE TAKE NOTICE that a hearing has been set on the Motion for Default
Judgment for June 29, 2015 at S:00 a.m. in the 151st Judicial District Court of Harris
County, Texas.
Respectfuliysubmitted,
GILL, REVACK, SAMAAN & MULLER, LLP
6575 West Loop South, Suite 600
Bellaire, Texas 77401
Tel. (713)271"8282
Fax (713)271-2112
By;
NED GILL, Ell
Texas Bar No 07921400
Nedglll3@grsle.aai.com
Attorney for Plaintiffs
Page 1 of1
15
5/19/2015 2:15:42 PM
Chris Daniel - Dislricl Clerk Harris Courtly
Envelope No. 5341703
By: JIMMY RODRIGUEZ
Filed: 5/19/2015 2:15:42 PM
NO, 2015-21720
GREGORY PHAM, JOHN MA § IN THE DISTRICT COURT
And RAYMONO DAO
Plaintiffs, §
§
V. § 151ST JUDICIAL DISTRICT
§
W, GARRY WALDROP. DDS, INC. §
d/b/a LIFETIME DENTAL CARE §
Defendant § HARRIS COUNTY, TEXAS
PLAINTIFFS’ CERTIFICATE OF LAST KNOWN MAILING ADDRESS
I CERTIFY that the last known mailing address of Defendant W. GARRY
WALDROP, DDS, INC., d/b/a LIFETIME DENTAL CARE, against whom judgment is
taken in the above-entitled and -numbered cause, is 970 South Fry Road, Katy, Texas
77450.
Respectfully submitted,
GILL REVACK SAMAAN & MULLER, LLP
6575 West Loop South, Suite 600
Bellatre, Texas 77401
Tel, (713) 271-8282
Fax. (713) 271-2122
By:
NED GILL, III
Texas Bar No. 07921400
Email: nedqil]3@qr$fecta[. com
Attorney for Plaintiff s
16
1 REPORTER'S RECORD
2 VOLUME 1 OF 1 VOLUME
FILED IN
14th COURT OF APPEALS
3 CAUSE NO. 2015-21720 HOUSTON, TEXAS
9/11/2015 5:53:21 PM
4 COURT OF APPEALS CASE NO. 14-15-00747-CV
CHRISTOPHER A. PRINE
Clerk
5
GREGORY PHAM, JOHN MA, ) IN THE DISTRICT COURT
6 and RAYMOND DAO, )
Plaintiffs, )
7 )
VS. ) HARRIS COUNTY, TEXAS
8 )
W GARRY WALDROP, DDS, INC., )
9 DBA LIFETIME DENTAL CARE, )
Defendant. ) 151ST JUDICIAL DISTRICT
10
11
12
13 *********************************
14 MOTION FOR DEFAULT
15 *********************************
16
17 On the 29th day of June , 2015, the
18 following proceedings came on to be heard in the
19 above-entitled and numbered cause before the Honorable
20 Mike Engelhart, Judge Presiding, held in Houston,
21 Harris County, Texas.
22 Proceedings reported by Certified
23 Shorthand Reporter and Machine
24 Shorthand/Computer-Aided Transcription.
25
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
2
1 A P P E A R A N C E S
2
Mr. Ned Gill, III
3 State Bar No. 07921400
nedgill3@grslegal.com
4 GILL REVACK SAMAAN & MULLER, LLP
6575 West Loop South, Suite 600
5 Bellaire, Texas 77401
Telephone: (713) 271-8282
6 Telecopier: (713) 271-2112
COUNSEL FOR THE PLAINTIFFS
7
8
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GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
3
1 VOLUME 1 OF 1 VOLUME
2 MOTION FOR DEFAULT
3 CHRONOLOGICAL INDEX
4 JUNE 29, 2015 PAGE
5 Appearances . . . . . . . . . . . . . . . . . 2
6 Chronological Index . . . . . . . . . . . . . 3
7 Alphabetical Witness Index . . . . . . . . . .4
8 Proceedings . . . . . . . . . . . . . . . . . 5
9 PLAINTIFFS' WITNESSES DIRECT CROSS
10 Pham, Gregory
By Mr. Gill 6
11
Ma, John
12 By Mr. Gill 9
13 Dao, Raymond
By Mr. Gill 11
14
Gill, III, Ned
15 By Mr. Gill 13
16 Plaintiffs Rest . . . . . . . . . . . . . . .14
17 Court's Findings . . . . . . . . . . . . . . 14
18 Adjourned . . . . . . . . . . . . . . . . . .16
19 Court Reporter's Certificate . . . . . . . . 17
20 Word Index . . . . . . . . . . . . . . . . . 18
21 (No exhibits)
22
23
24
25
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
4
1 VOLUME 1 OF 1 VOLUME
2 MOTION FOR DEFAULT
3 ALPHABETICAL WITNESS INDEX
4 WITNESSES DIRECT CROSS
5 Dao, Raymond
By Mr. Gill 11
6
Gill, III, Ned
7 By Mr. Gill 13
8 Ma, John
By Mr. Gill 9
9
Pham, Gregory
10 By Mr. Gill 6
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
5
1 P R O C E E D I N G S
2 06/29/2015 (At the bench, on the record)
3 THE COURT: This is 2015-21720, Pham,
4 P-H-A-M, versus W Garry, with two R's, Waldrop,
5 W-A-L-D-R-O-P , DDS, Inc. We're here for what I'm
6 guess ing is a prove-up of a final default judgment.
7 MR. GILL: Yes, Judge.
8 THE COURT: Final meaning it would
9 resolve all the claims and all the parties.
10 MR. GILL: All the claims, controversies
11 and parties.
12 THE COURT: All right. Nice and slow
13 and loud because Carolyn is taking down what you say.
14 Counsel, would you tell us who you are and who you
15 represent .
16 MR. GILL: My name is Ned Gill , III . I
17 represent the Plaintiffs in the case. That's Gregory
18 Pham, P-H-A-M ; John Ma, M-A ; and Raymond Dao, D -A-O.
19 THE COURT: All right. And these are
20 the three gentlemen that are here today?
21 MR. GILL: That's correct, Judge.
22 THE COURT: All right. I assume they're
23 gentlemen . The Court should not assume such things .
24 (Laughing)
25 THE COURT: All right. Would you please
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
6
1 raise your right hand so I can swear you in. They're
2 doing so.
3 (Oath administered to the witnesses)
4 THE COURT: All right. All three have
5 answered in the affirmative . Very good . Mr. Gill.
6 MR. GILL: Yes, sir.
7 THE COURT: Who do you wish to call
8 first?
9 MR. GILL: I'm going to call Plaintiff
10 number one, Gregory Pham.
11 THE COURT: All right. Mr. Pham, listen
12 carefully to the questions . Only answer the question
13 that you are asked . And please answer nice and loud
14 and slow so Carolyn can take down what you're saying.
15 Okay?
16 THE WITNESS: Okay.
17 THE COURT: Please proceed.
18 MR. GILL: Thank you, Judge.
19 GREGOR Y PHAM ,
20 having been first duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MR. GILL:
23 Q. Mr. Pham, state your name for the record and
24 spell your last name .
25 A. Gregory Pham , P as in Paul , H-A-M.
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
7
1 Q. And are you the Plaintiff in the case , in
2 Cause N umber 2015 -21720 ?
3 A. Yes.
4 Q. And are you familiar with the Defendant in
5 the case?
6 A. Yes.
7 Q. And what is your relationship with the
8 Defendant?
9 A. I was an employer -- employee with the
10 Waldrops .
11 Q. And are you a licensed dentist?
12 A. Yes.
13 Q. Are you in good standing with the State of
14 Texas?
15 A. Yes.
16 Q. And did you have an agreement with the
17 Defendant in the case to provide a dental service to
18 him?
19 A. His patient, yes.
20 Q. And do you know the terms of that agreement?
21 A. It's 25 percent of production.
22 Q. Okay. Was that a written or verbal contract
23 with the Defendant?
24 A. A written contract.
25 Q. Okay. And did he pay you all the amount
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
8
1 that were due to you under that agreement?
2 A. No.
3 Q. And do you know the amount that he was
4 insufficient in paying you?
5 A. Yes.
6 Q. And could you tell the Court what that
7 amount was?
8 A. It's $58,343.
9 Q. Are you asking this Court to grant you a
10 judgment in the amount of $58,343 against the
11 Defendant in this case?
12 A. Yes.
13 Q. And to pursue the judgment in this case , did
14 you have to hire an attorney?
15 A. Yes.
16 Q. Did you hire me to represent you in pursuing
17 this judgment?
18 A. Yes.
19 Q. And did you believe it was necessary for you
20 to hire me to pursue this judgment?
21 A. Yes.
22 MR. GILL: Judge , I'll pass this witness
23 and ask that I may call the next witness.
24 THE COURT: Okay . Very good . Sure .
25 Who do you wish to call next?
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
9
1 MR. GILL: John Ma.
2 THE COURT: All right. Please change
3 place s and please remember my instruction to speak
4 loud and slow .
5 JOHN MA,
6 having been previously duly sworn, testified as
7 follows:
8 DIRECT EXAMINATION
9 BY MR. GILL :
10 Q. Mr. Ma, could you state your full name for
11 the court reporter and spell your last name, please.
12 A. Yes. John Ma . Last name is M-A.
13 Q. Are you a Plaintiff in Cause N umber
14 2015-21720?
15 A. Yes.
16 Q. Do you know the Defendant in this case?
17 A. Yes.
18 Q. What is your relationship to the Defendant
19 in this case?
20 A. He is my employer.
21 THE COURT: Slow down . You're doing
22 fine . I need you to slow down just a little.
23 MR. GILL: Sorry, Judge.
24 Q. (By Mr. Gill ) What is your relationship to
25 the Defendant in this case?
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
10
1 A. He was my employer.
2 Q. And how were you so employed with the
3 Defendant in this case?
4 A. I was an associate dentist at his practice.
5 Q. And did you have an agreement with the
6 dentist in this case for you to get paid?
7 A. Yes.
8 Q. And do you know the terms of that agreement?
9 A. Yes . It was 25 percent of any production
10 completed at the office.
11 Q. Was that a written agreement?
12 A. Yes.
13 Q. And do you know the amount of money he
14 actually paid you and the amount of money he actually
15 should have paid you?
16 A. Yes.
17 Q. And what is the difference in that amount?
18 A. $19,462.
19 Q. Are you asking this Court to grant you a
20 judgment against the Defendant for $19,462?
21 A. Yes.
22 Q. To pursue that judgment , did you have to
23 hire an attorney in that case?
24 A. Yes.
25 Q. Did you hire me to help you pursue this
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
11
1 judgment?
2 A. Yes.
3 Q. Did you think it was necessary for you to
4 hire an attorney to pursue that judgment?
5 A. Yes.
6 MR. GILL: Judge , at this time I will
7 pass this witness and call another witness.
8 THE COURT: Very good . Who do you wish
9 to call?
10 MR. GILL: Raymond Dao.
11 THE COURT: All right. Mr. Dao, same
12 instruction , right? Nice and loud.
13 RAYMOND DAO,
14 having been previously duly sworn, testified as
15 follows:
16 DIRECT EXAMINATION
17 BY MR. GILL :
18 Q. Mr. Dao , could you state your full name for
19 the court reporter, spelling your last name, please.
20 A. Raymond Dao, D -A-O.
21 Q. Are you a Plaintiff in Cause Number
22 2015 -21720?
23 A. Yes.
24 Q. And are you familiar with the Defendant in
25 this case?
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
12
1 A. Yes.
2 Q. Did you -- tell the Court what your
3 relationship with the Defendant was?
4 A. I was an associate dentist at his practice.
5 Q. And did you have an agreement with the
6 Defendant on amount of money that he would pay you as
7 an associate dentist?
8 A. Yes.
9 Q. And was that agreement in writing?
10 A. Yes.
11 Q. And do you know the terms of that agreement?
12 A. Yes.
13 Q. And could you state briefly for the Court
14 what the terms was?
15 A. 25 percent of production.
16 Q. Do you know the amount of production that
17 you incurred and the amount that he paid you?
18 A. Yes.
19 Q. And do you know the amount that he should
20 have paid you?
21 A. Yeah.
22 Q. Is there a difference?
23 A. Yes.
24 Q. And could you tell the Court the difference
25 in that amount?
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
13
1 A. $26,759.
2 Q. Are you asking the Court to grant you a
3 judgment against Mr. Waldrop , the Defendant in this
4 case , in the amount of $26,759?
5 A. Yes.
6 Q. Did you have to hire an attorney to pursue a
7 judgment in th at case?
8 A. Yes.
9 Q. And did you hire me to pursue that judgment?
10 A. Yes.
11 Q. Do you believe hiring me was necessary to
12 pursue that judgment?
13 A. Yes.
14 MR. GILL: I have no other questions ,
15 Judge . I would like to call myself for attorney 's
16 fees.
17 THE COURT: Okay. Switch place s,
18 please .
19 DIRECT EXAMINATION
20 MR. GILL: My name is Ned Gill , III.
21 I'm a licensed attorney in the state of Texas . I've
22 been practicing for over 24 year s. I practice in
23 Harris County, Fort Bend County , Liberty County , other
24 counties . I practice primarily civil laws, criminal
25 laws, and family law.
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
14
1 I have been hired by these three
2 Plaintiffs in the case to pursue a judgment against
3 the Defendant in this case . I have been paid
4 approximately $8,000 to pursue five judgments in this
5 case . But these are three Plaintiffs in the case .
6 And for these three Plaintiffs in the
7 case I anticipate that it was necessary for me to
8 incur approximately $1,600 for each of these
9 particular Plaintiffs in the case .
10 I believe the time I spent on this case
11 was necessary to get a judgment in this case and I
12 believe an award of attorney 's fees against the
13 Defendant in this case and in favor of the Plaintiffs
14 of $1,600 each is reasonable and necessary .
15 THE COURT: Okay . Anything further ?
16 PLAINTIFFS REST
17 MR. GILL: That's all, Judge . We rest.
18 THE COURT: All right . Very good . Then
19 I will -- I find that the Defendant has -- let me
20 double -check something .
21 COURT'S FINDINGS
22 THE COURT: All right . I find that the
23 Defendant W Garry Waldrop, DDS, Inc., DBA Lifetime
24 Dental Care , has failed to appear despite having been
25 served with citation and process .
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
15
1 And I find in favor of the Plaintiffs in
2 the amounts stated , including actual damages ,
3 prejudgment interest , the attorney 's fees request ed by
4 Mr. Gill , and all taxable costs of court , as well as
5 postjudgment interest at the rate of 5 percent from
6 the date after judgment until collected .
7 If you would make the change in this
8 proposed judgment , take out the number for cost of
9 court on each of the thre e Plaintiffs and just write
10 it as Number Four, all taxable costs of court , I would
11 appreciate that . And the rest of the language looks
12 okay .
13 On the postjudgment interest language ,
14 if you could make it clear that it's interest at the
15 rate of 5 percent per year on the total judgment . It
16 doesn't say postjudgment interest . Just include the
17 word "postjudgment " so that it's clear it starts
18 accruing --
19 MR. GILL: Got it, Judge.
20 THE COURT: -- after the judgment .
21 And then you have the language in there
22 that it's final . If you would make in the title of
23 the judgment if you would put the word "final " up here
24 as well . Anytime you have a final -- I mean, every
25 judgment is either final or partial, right ? So it is
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
16
1 very helpful to the clerks if you make it clear up
2 here which it is so they don't have to scour the
3 judgment looking for that language.
4 So if it's interlocutory, mark it as
5 interlocutory . If it's final , mark it final.
6 MR. GILL: I will , Judge . Do you want
7 me to e-file that ?
8 THE COURT: And if you would e-file
9 that , that would be great . That way I could
10 electronically sign it.
11 MR. GILL: Perfect. I will, Judge.
12 THE COURT: All right. I'll make a
13 note. Is there anything else?
14 MR. GILL: That's all, Judge.
15 THE COURT: All right. Very good.
16 Congratulations, gentlemen. Good luck to you.
17 MR. GILL: Thank you , Your Honor .
18 THE COURT: Now the hard part begins.
19 (Laughing)
20 (Recessed)
21
22
23
24
25
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
17
1 THE STATE OF TEXAS )
2 COUNTY OF HARRIS )
3 I, Carolyn Ruiz Coronado, Official Court Reporter
in and for the 151st Civil District Court of Harris
4 County, State of Texas, do hereby certify that the
above and foregoing contains a true and correct
5 transcription of all portions of evidence and other
proceedings requested in writing by counsel for the
6 parties to be included in this volume of the
Reporter's Record, in the above-styled and numbered
7 cause, all of which occurred in open court or in
chambers and were reported by me.
8
I further certify that this Reporter's Record of
9 the proceedings truly and correctly reflects the
exhibits, if any, admitted, tendered in an offer of
10 proof or offered into evidence.
11 I further certify that the total cost for the
preparation of this Reporter's Record is $180.00 and
12 will be paid by Zimmerman, Axelrad, Meyer, Stern &
Wise, P.C.
13
14 WITNESS MY OFFICIAL HAND this the 8th day of
15 September , 2015.
16 /s/Carolyn Ruiz Coronado
Carolyn Ruiz Coronado, Texas CSR#7113
17 Expiration Date: 12/31/2016
Official Reporter, 151st Civil District Court
18 Harris County, Texas
201 Caroline, Houston, Tx 77002
19 (713) 398-3548
20
21
22
23
24
25
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
18
1 WORD INDEX
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
GREGORY PHAM, ET AL VS. W GARRY WALDROP, DDS, INC.
06/29/2015 MOTION FOR DEFAULT
Carolyn Ruiz Coronado, CSR, RPR
- 0 - 6575 [1] 2:4 17; 12:6, 16, because [1]
17, 19, 25; 5:13
- 7 - 13:4 been [7] 6:20;
07921400 [1]
amounts [1] 9:6; 11:14;
2:3
7113 [1] 15:2 13:22; 14:1, 3,
17:16
another [1] 24
- 1 - 77002 [1]
11:7 before [1] 1:19
17:18
answer [2] begins [1]
77401 [1] 2:5
1,600 [2] 14:8, 6:12, 13 16:18
14 answered [1] believe [4]
14-15-00747-CV - 8 -
6:5 8:19; 13:11;
[1] 1:4 anticipate [1] 14:10, 12
151ST [1] 1:9 8,000 [1] 14:4 14:7 Bellaire [1]
151st [2] 17:3, Anything [1] 2:5
17 - A - 14:15 bench [1] 5:2
180.00 [1] anything [1] Bend [1] 13:23
17:11 above [1] 17:4 16:13 briefly [1]
19,462 [2] Anytime [1] 12:13
above-entitled
10:18, 20 15:24
[1] 1:19
above-styled APPEALS [1] - C -
- 2 - [1] 17:6 1:4
accruing [1] appear [1] call [7] 6:7, 9;
2015 [4] 1:17; 15:18 14:24
8:23, 25; 11:7,
3:4; 5:2; actual [1] 15:2 Appearances
9; 13:15
17:15 actually [2] [1] 3:5 came [1] 1:18
2015-21720 [5] 10:14 appreciate [1]
CARE [1] 1:9
1:3; 5:3; 7:2; Adjourned [1] 15:11 Care [1] 14:24
9:14; 11:22 3:18 approximately
carefully [1]
2016 [1] 17:17 administered [2] 14:4, 8
6:12
26,759 [2] [1] 6:3 asked [1] 6:13
Caroline [1]
13:1, 4 admitted [1] asking [3] 8:9;
17:18
271-2112 [1] 17:9 10:19; 13:2 Carolyn [5]
2:6 affirmative [1] associate [3]
5:13; 6:14;
271-8282 [1] 6:5 10:4; 12:4, 7
17:3, 16
2:5 after [2] 15:6, assume [2] CASE [1] 1:4
29th [1] 1:17 20 5:22, 23 case [24] 5:17;
against [5] attorney [5]
7:1, 5, 17;
- 3 - 8:10; 10:20; 8:14; 10:23;
8:11, 13; 9:16,
13:3; 14:2, 12 11:4; 13:6, 21
19, 25; 10:3,
agreement [9] attorney's [3]
398-3548 [1] 6, 23; 11:25;
7:16, 20; 8:1; 13:15; 14:12;
17:19 13:4, 7; 14:2,
10:5, 8, 11; 15:3
3, 5, 7, 9, 10,
12:5, 9, 11 award [1]
- 5 - 11, 13
ALPHABETICAL 14:12 CAUSE [1] 1:3
[1] 4:3 Axelrad [1] Cause [3] 7:2;
58,343 [2] 8:8, Alphabetical 17:12
9:13; 11:21
10 [1] 3:7 cause [2] 1:19;
amount [13] - B - 17:7
- 6 - 7:25; 8:3, 7, Certificate [1]
10; 10:13, 14, 3:19
Certified [1] COUNSEL [1] Defendant [19] employed [1]
1:22 2:6 1:9; 7:4, 8, 17, 10:2
certify [3] Counsel [1] 23; 8:11; employee [1]
17:4, 8, 11 5:14 9:16, 18, 25; 7:9
chambers [1] counsel [1] 10:3, 20; employer [3]
17:7 17:5 11:24; 12:3, 6; 7:9; 9:20;
change [2] counties [1] 13:3; 14:3, 13, 10:1
9:2; 15:7 13:24 19, 23 Engelhart [1]
CHRONOLOGIC COUNTY [2] DENTAL [1] 1:9 1:20
AL [1] 3:3 1:7; 17:2 Dental [1] every [1] 15:24
Chronological County [6] 14:24 evidence [2]
[1] 3:6 1:21; 13:23; dental [1] 7:17 17:5, 10
citation [1] 17:4, 18 dentist [5] EXAMINATION
14:25 COURT [26] 7:11; 10:4, 6; [4] 6:21; 9:8;
Civil [2] 17:3, 1:4, 5; 5:3, 8, 12:4, 7 11:16; 13:19
17 12, 19, 22, 25; despite [1] exhibits [2]
civil [1] 13:24 6:4, 7, 11, 17; 14:24 3:21; 17:9
claims [2] 5:9, 8:24; 9:2, 21; difference [3] Expiration [1]
10 11:8, 11; 10:17; 12:22, 17:17
clear [3] 13:17; 14:15, 24
15:14, 17; 16:1 18, 22; 15:20; DIRECT [6] - F -
clerks [1] 16:1 16:8, 12, 15, 18 3:9; 4:4; 6:21;
collected [1] Court [12] 9:8; 11:16; failed [1]
15:6 3:19; 5:23; 13:19
14:24
completed [1] 8:6, 9; 10:19; DISTRICT [2] familiar [2]
10:10 12:2, 13, 24; 1:5, 9
7:4; 11:24
Computer-Aide 13:2; 17:3, 17 District [2] family [1]
d [1] 1:24 court [6] 9:11; 17:3, 17
13:25
Congratulation 11:19; 15:4, 9, doesn't [1] favor [2]
s [1] 16:16 10; 17:7 15:16
14:13; 15:1
contains [1] COURT'S [1] doing [2] 6:2; fees [3] 13:16;
17:4 14:21 9:21
14:12; 15:3
contract [2] Court's [1] double-check
Final [1] 5:8
7:22, 24 3:17 [1] 14:20 final [7] 5:6;
controversies criminal [1] down [4] 5:13;
15:22, 23, 24,
[1] 5:10 13:24 6:14; 9:21, 22
25; 16:5
Coronado [3] CROSS [2] 3:9; duly [3] 6:20; find [3] 14:19,
17:3, 16 4:4 9:6; 11:14
22; 15:1
correct [2] FINDINGS [1]
5:21; 17:4 - D - - E - 14:21
correctly [1] Findings [1]
17:9 D-A-O [2] e-file [2]
5:18; 16:7, 3:17
cost [2] 15:8;
11:20 8 fine [1] 9:22
17:11 damages each [3] first [2]
[1] 14:8, 6:8,
costs [2] 15:4,
15:2 14; 15:9 20
10 Date [1] 17:17 either five [1] 14:4
[1]
could [7] 8:6; date [1] 15:6 15:25 following [1]
9:10; 11:18; DEFAULT electronically
[3] 1:18
12:13, 24;
1:14; 3:2; 4:2 [1] 16:10
15:14; 16:9 default [1] 5:6 else [1] 16:13
follows [3] guessing [1] included [1] JUDICIAL [1]
6:20; 9:7; 5:6 17:6 1:9
11:15 including [1] JUNE [1] 3:4
foregoing [1] - H - 15:2 June [1] 1:17
17:4 incur [1] 14:8
Fort [1] 13:23 incurred [1] - K -
H-A-M [1] 6:25
Four [1] 15:10 12:17
HAND [1] 17:14
from [1] 15:5 INDEX [3] 3:3;
hand [1] 6:1 know [8] 7:20;
full [2] 9:10; 4:3; 18:1
hard [1] 16:18 8:3; 9:16;
11:18 Index [3] 3:6,
HARRIS [2] 10:8, 13;
further [3] 7, 20
1:7; 17:2 12:11, 16, 19
14:15; 17:8 instruction [2]
Harris [4]
9:3; 11:12
1:21; 13:23; - L -
- G - insufficient [1]
17:3, 18
having 8:4
[4] language
interest [5] [4]
GARRY [1] 1:8 6:20; 9:6;
15:3, 5, 13, 14, 15:11, 13, 21;
Garry [2] 5:4; 11:14; 14:24
16 16:3
14:23 heard [1] 1:18
interlocutory Last [1] 9:12
gentlemen [3] held [1] 1:20
[2] 16:4, 5 last [3] 6:24;
5:20, 23; 16:16 help [1] 10:25
into [1] 17:10 9:11; 11:19
GILL [24] 2:4; helpful [1]
It's [2] 7:21; Laughing [2]
5:7, 10, 16, 21; 16:1
8:8 5:24; 16:19
6:6, 9, 18, 22; here [4] 5:5,
it's [5] 15:14, laws [2] 13:24,
8:22; 9:1, 9, 20; 15:23;
17, 22; 16:4, 5 25
23; 11:6, 10, 16:2 Liberty [1]
17; 13:14, 20; hereby [1]
13:23
14:17; 15:19; 17:4 - J -
licensed [2]
16:6, 11, 14, 17 hire [8] 8:14,
7:11; 13:21
Gill [16] 2:2; 16, 20; 10:23, JOHN [2] 1:5; LIFETIME [1]
3:10, 12, 13, 25; 11:4; 9:5
1:9
14, 15; 4:5, 6, 13:6, 9 John [5] 3:11; Lifetime [1]
7, 8, 10; 5:16; hired [1] 14:1 4:8; 5:18; 9:1,
14:23
6:5; 9:24; hiring [1] 12 like [1] 13:15
13:20; 15:4 13:11 Judge [13] listen [1] 6:11
going [1] 6:9 Honor [1] 1:20; 5:7, 21; little [1] 9:22
Good [1] 16:16 16:17 6:18; 8:22; looking [1]
good [6] 6:5; Honorable [1] 9:23; 11:6;
16:3
7:13; 8:24; 1:19 13:15; 14:17; looks [1] 15:11
11:8; 14:18; Houston [2] 15:19; 16:6, Loop [1] 2:4
16:15 1:20; 17:18 11, 14 loud [4] 5:13;
grant [3] 8:9; judgment [22]
6:13; 9:4;
10:19; 13:2 - I - 5:6; 8:10, 13,
11:12
great [1] 16:9 17, 20; 10:20, luck [1] 16:16
GREGORY [2] 22; 11:1, 4;
I'll [2] 8:22;
1:5; 6:19 13:3, 7, 9, 12;
16:12 - M -
Gregory [5] 14:2, 11; 15:6,
I've [1] 13:21
3:10; 4:9; include 8, 15, 20, 23,
[1] Machine
5:17; 6:10, 25 25; 16:3 [1]
15:16
grslegal.com judgments [1] 1:23
[1] 2:3 14:4
make [5] 15:7, Oath [1] 6:3 Perfect [1] proceedings [3]
14, 22; 16:1, occurred [1] 16:11 1:18; 17:5, 9
12 17:7 PHAM [2] 1:5; process [1]
mark [2] 16:4, offer [1] 17:9 6:19 14:25
5 offered [1] Pham [8] 3:10; production [4]
mean [1] 15:24 17:10 4:9; 5:3, 18; 7:21; 10:9;
meaning [1] office [1] 6:10, 11, 23, 25 12:15, 16
5:8 10:10 places [2] 9:3; proof [1] 17:10
Meyer [1] OFFICIAL [1] 13:17 proposed [1]
17:12 17:14 Plaintiff [4] 15:8
Mike [1] 1:20 Official [2] 6:9; 7:1; 9:13; prove-up [1]
money [3] 17:3, 17 11:21 5:6
10:13, 14; 12:6 Okay [7] 6:15, PLAINTIFFS [3] provide [1]
MOTION [3] 16; 7:22, 25; 2:6; 3:9; 7:17
1:14; 3:2; 4:2 8:24; 13:17; 14:16 pursue [10]
MULLER [1] 14:15 Plaintiffs [10] 8:13, 20;
2:4 okay [1] 15:12 1:6; 3:16; 10:22, 25;
myself [1] Only [1] 6:12 5:17; 14:2, 5, 11:4; 13:6, 9,
13:15 open [1] 17:7 6, 9, 13; 15:1, 12; 14:2, 4
other [3] 9 pursuing [1]
- N - 13:14, 23; 17:5 Please [2] 8:16
over [1] 13:22 6:17; 9:2
please [6] - Q -
name [9] 5:16;
- P - 5:25; 6:13;
6:23, 24; 9:10,
9:3, 11; 11:19; question
11, 12; 11:18, [1]
P-H-A-M 13:18
19; 13:20 [2] 6:12
portions [1]
necessary [6] 5:4, 18 questions [2]
P.C. [1] 17:12 17:5
8:19; 11:3; 6:12; 13:14
postjudgment
13:11; 14:7, PAGE [1] 3:4
paid [7] [4] 15:5, 13,
11, 14 10:6, - R -
nedgill3 16, 17
[1] 14, 15; 12:17,
practice [4]
2:3 20; 14:3; raise [1] 6:1
need [1] 9:22 10:4; 12:4;
17:12 rate [2]
13:22, 24 15:5,
next [2] 8:23, part [1] 16:18
practicing [1] 15
25 partial [1]
13:22 RAYMOND [2]
Nice [2] 5:12; 15:25
prejudgment 1:6; 11:13
11:12 particular [1]
[1] 15:3 Raymond [5]
nice [1] 6:13 14:9
preparation [1] 3:13; 4:5;
note [1] 16:13 parties [3]
17:11 5:18; 11:10, 20
Number [4] 5:9, 11; 17:6
Presiding [1] reasonable [1]
7:2; 9:13; pass [2] 8:22;
1:20 14:14
11:21; 15:10 11:7 Recessed
previously [2] [1]
number [2] patient [1]
9:6; 11:14 16:20
6:10; 15:8 7:19 RECORD
primarily [1] [1]
numbered [2] Paul [1] 6:25
13:24 1:1
1:19; 17:6 paying [1] 8:4
proceed [1] Record [3]
percent [5]
6:17 17:6, 8, 11
- O - 7:21; 10:9; record [2]
Proceedings 5:2;
12:15; 15:5, 15
[2] 1:22; 3:8 6:23
reflects [1] service [1] taxable [2] three [6] 5:20;
17:9 7:17 15:4, 10 6:4; 14:1, 5, 6;
relationship [4] Shorthand [2] Telecopier [1] 15:9
7:7; 9:18, 24; 1:23, 24 2:6 time [2] 11:6;
12:3 should [3] Telephone [1] 14:10
remember [1] 5:23; 10:15; 2:5 title [1] 15:22
9:3 12:19 tell [4] 5:14; today [1] 5:20
reported [2] sign [1] 16:10 8:6; 12:2, 24 total [2] 15:15;
1:22; 17:7 Slow [1] 9:21 tendered [1] 17:11
Reporter [3] slow [4] 5:12; 17:9 Transcription
1:23; 17:3, 17 6:14; 9:4, 22 terms [4] 7:20; [1] 1:24
reporter [2] something [1] 10:8; 12:11, 14 transcription
9:11; 11:19 14:20 testified [3] [1] 17:5
REPORTER'S Sorry [1] 9:23 6:20; 9:6; true [1] 17:4
[1] 1:1 South [1] 2:4 11:14 truly [1] 17:9
Reporter's [4] speak [1] 9:3 TEXAS [2] 1:7;
3:19; 17:6, 8, spell [2] 6:24; 17:1 - U -
11 9:11 Texas [7] 1:21;
represent [3] spelling [1] 2:5; 7:14; under [1] 8:1
5:15, 17; 8:16 11:19 13:21; 17:4, until [1] 15:6
requested [2] spent [1] 16, 18
15:3; 17:5 14:10 Thank [2]
- V -
resolve [1] 5:9 standing [1] 6:18; 16:17
REST [1] 14:16 7:13 That's [4]
Rest [1] 3:16 starts [1] 5:17, 21; verbal [1] 7:22
rest [2] 14:17; 15:17 14:17; 16:14 versus [1] 5:4
15:11 STATE [1] 17:1 Then [1] 14:18 Very [5] 6:5;
REVACK [1] State [3] 2:3; then [1] 15:21 8:24; 11:8;
2:4 7:13; 17:4 there [3] 14:18; 16:15
right [15] state [5] 6:23; 12:22; 15:21; very [1] 16:1
5:12, 19, 22, 9:10; 11:18; 16:13 VOLUME [6]
25; 6:1, 4, 11; 12:13; 13:21 these [5] 5:19; 1:2; 3:1; 4:1
9:2; 11:11, 12; stated [1] 15:2 14:1, 5, 6, 8 volume [1]
14:18, 22; Stern [1] 17:12 they [1] 16:2 17:6
15:25; 16:12, such [1] 5:23 They're [1] 6:1
15 Suite [1] 2:4 they're [1] - W -
Ruiz [3] 17:3, Sure [1] 8:24 5:22
16 swear [1] 6:1 things [1] 5:23 W-A-L-D-R-O-P
Switch [1] think [1] 11:3 [1] 5:5
- S - 13:17 This [1] 5:3 WALDROP [1]
sworn [3] this [27] 8:9, 1:8
SAMAAN 6:20; 9:6; 11, 13, 17, 20, Waldrop [3]
[1]
11:14 22; 9:16, 19, 5:4; 13:3;
2:4
same [1] 11:11 25; 10:3, 6, 14:23
saying [1] 6:14 - T - 19, 25; 11:6, Waldrops [1]
scour [1] 16:2 7, 25; 13:3; 7:10
September [1] take 14:3, 4, 10, 11, want [1] 16:6
[2] 6:14;
13; 15:7; We're [1] 5:5
17:15 15:8
served taking [1] 17:6, 8, 11, 14 well [2] 15:4,
[1] 5:13
14:25 24
were [3] 8:1;
10:2; 17:7 - Z -
West [1] 2:4
which [2] 16:2;
Zimmerman [1]
17:7
17:12
will [5] 11:6;
14:19; 16:6,
11; 17:12
Wise [1] 17:12
wish [3] 6:7;
8:25; 11:8
WITNESS [3]
4:3; 6:16;
17:14
Witness [1]
3:7
witness [4]
8:22, 23; 11:7
WITNESSES [2]
3:9; 4:4
witnesses [1]
6:3
WORD [1] 18:1
Word [1] 3:20
word [2]
15:17, 23
Would [1] 5:25
would [10] 5:8,
14; 12:6;
13:15; 15:7,
10, 22, 23;
16:8, 9
write [1] 15:9
writing [2]
12:9; 17:5
written [3]
7:22, 24; 10:11
- Y -
year [1] 15:15
years [1] 13:22
You're [1] 9:21
you're [1] 6:14
Your [1] 16:17
your [11] 6:1,
23, 24; 7:7;
9:10, 11, 18,
24; 11:18, 19;
12:2
Office of Harris County District Clerk Chris Daniel - Page 1 of 3
HCDistrictclerk.com PHAM, GREGORY vs. W GARRY WALDROP DDS INC 11/10/2015
(D/B/A LIFETIME DENTAL CAR
Cause: 201 521720 CDI: 7 Court: 1 5 1
COST STATMENTS
No Cost Statments found.
TRANSFERS
No Transfers found.
NOTICES
No Notices found.
SUMMARY
CASE DETAILS COURT DETAILS
Kile Date 4/15/2015 Court up'
Case (Cause) Location Civil Intake 1st Floor Address 201 CAROLINE (Floor. 1 1)
HOUSTON. TX 77002
Case (Cause) Status -
Case On Appeal Civil
w* Phone; 7133686222
Case (Cause) Type HOMEOWNERS ASSOCIATION untPM»Hf«T
N.\,/lÿist Selling Date NA
Cr. T». CM '
Judgment For DEFAULT JUDGMENT SIGNED ''vr-- •
"• ' '
••
Judgment Date 7/1/2015
Jury Fee Paid Date N/A
APPEALS
Action Type* Action
Court Assignment Assigned to 14th Court of Appeals 9/1/2015 $0.00
9/1/2015 $0.00
A,;/;;'
Notice of Appeal Has Been Filed Notice of Appeal Given 9/1/2015 S 0,00
McMMonWv.. .A.-..
Notice of Appeal Has Been Filed Appeal Final Judgment 9/1/20)5 $0,00
Mandate Issued on Appeal
Transcript Action
.
---- Transcript Completed
9/22/201 5
00«»Av«W '/S-Ov.
"•vz/y/'ÿ/WZ/Wr/W'/' •v/y f/jvo
7/2/20 IS
7/2/2015
Abstract Picked UO 7/29/2015
vV yrffWW/Wi'/’W'«'.('.
Abstract Picked UO 7/29/2015 '
• . ,v/>s\'A\v.w.'
Abstract Picked UO 7/29/2015
y.yO.t::*‘y.
Gll.L, NED 111
VAWSrMyV* r.-s.ss.yy.rs.r/sv. .••>. -
W GAR.RY DEFENDANT -CIVIL
WALDROP DDS INC
(D/B/A LIFETIME
DENTAL, CARE)
970 SOUTH FRY ROAD, KATY, TX 77450
.... ....
DAO, RAYMOND PLAINTIFF - CIVIL GJ.CL» NED III
MA. JOHN PLAINTIFF -CIVIL GILL, NED IU
.r.W.,AWy,r.y,, .,
JHDGMENT/EVENTS
Date Description Order Post Pgs Volume Filing Person
Signed Jdgm /Page Attorney Filing
7/1/2015
7/1/2015
DEFAULT JUDGMENT SIGNED
/.v.-.v.v.v.vv.x'r«vcw rrrrrrrr
DEFENDANT COSTS
•r'r‘rr/r **«*»ÿ»
7/1/2015
m
0
4/15/2015 ORIGINAL PETITION 0 GILL, NED III PHAM, GREGORY
4/15/2015 ORJGINAI PETITION 0 GILL, NED Ilf DAO, RAYMOND
4/15/2015 ORIGINAL PETITION 0 GILL., NED III MA, JOHN
- -
SETTINGS
Date Court Post Docket Type Reason Results Comments Requesting
I
Jdgm Party I
6/29/2015 151 Law Day Docket DEFAULT MOTION FOR Granted - SEE O/S 7-1-15 GILL, NED III
09:00 AM (TRCP 239)
wwlv/w/'y y.Lv.- w-kvwjl/M'y
SERVICES
Type Status Instrument Person Requested Issued Served Returned Received Tracking Deliver
To
CITATION 4/15/2015 4/15/2015 4/21/2015 73121918
9
http://wvw.hcdistriciclerk.com/edocs/public/CaseDelailsPrinting.aspx7Get~8CH-VR0ti6Iqkyr51o7h9A5... 1 1/10/2015
Office of Harris County District Clerk - Chris Daniel Page 3 of 3
SERVICE ORIGINAL CIV AGCY-
RETURN/EXECUTED PETITION C1VILIAN
SERVICE
AGENCY
s>' s •• > •• ••
EXECUTION SERVICE WRIT OF 8/3/20 IS 8/10/2015 1 1/9/201S 11/9/2015 * 73155065 ATTORNEY
RETURN/EXECUTED EXECUTION PICK-UP
DOCUMENTS
Number Document MPbst Date fill Pgs
W?ww: i
67280496 Fourteenth court of appeals (Abatement Order) 09/22/2015 7
pMMM
66997309 Fourteenth court of appeals (Correspondence) 09/04/2015 I
66862676 Notice of Appeal 09/01/2015 2
>66862677 Local Rule Notice of and Assignment of Related Case in Appeals 09/01/2015 I
66862678 Letter to Clerk 09/01/2015 2
66862679 Letter to Reporter 09/01/2015 r
66457457 Request for Civil/Family Post Judgment Writs 08/03/2015 I
66075484 Request for Abstract of Judgment 07/02/2015 J
‘&¥S&t5$lF?f999XXttXXX‘/rAY/‘y/'?'‘‘i
66075485 Request for Abstract of Judgrat8»\, 07/02/2015 1
'/‘».VPP.V.v
66075486 Request for Abstract of Judgment 07/02/2015 $
66049904 DEFAULT JUDGMEN T SIGNED 07/01/2015 2
DEFENDANT COSTS Q7/0I/2015
ty£ÿ//AttYY//YrXfoiXXrXryXX/5i‘rt:r‘X‘ft‘rirYrY/iS'f‘r‘i
66009060 Proposed Final Judgment 06/29/2015 2
65485098 Motion for Default Judgment 05/19/2015#
»0d6i
_ _ _ _ _ _________
•s 65485099 Nonmilitary Affidavit 05/19/2015 3
________
>65485100 PlaintifTs’ Certificate of Last Known Mailing Address 05/19/2015 1
_
WMmSS9SWQttoM&0Witftmt9i64&i4iMSWG$fC4M<&
65485871
65141847
Notice of Hearing
..... ,
Citation -- ,•;•
..ÿ
• •
. . ... .......
_ :
04/21/2015 ... _...,
05/19/2015
...
1
.
65034468 Plaintiffs Original Peilition 04/15/2015 6
>65034470 Civil Case Information Sheet : v 04/15/2015 2
>65034469 Civil Process Request 04/15/2015 2
65G4I353 Civil Process Request 04/15/2015 2
65176921 Civil Process Pick-Up Form 04/15/2015 . I.
!
!
I
10
http://www.hcdistrictclerk.com/edocs/public/CaseDetailsPrinting.aspx?Get=80+VR0ti6Iqkyr5Io7h9A5... 1 1/10/2015
9j"t.'2015 5:01 31 PM
Cims Daniel - Distnci Clerk Harris County
Envolopo No. 6753 1 10
By: Phyllis Washington
filed: 9.'1.'201 5 5:01 31 PM
NO. 2015-21720
GREGORY HIAM, JOHN MA § IN THE DISTRICT COURT OF
AND RAYMOND DAO S
$
V. § HARRIS COUNTY, TEXAS
§
W, GARRY WALDROP, UDS, INC. §
(l/ti/a LIFETIME DENTAL CARE § 151ST JUDICIAL DISTRICT
NOTICE OF APPEAL
Pursuant to Texas Rules of Appellate Procedure 25.1 and 26.1(c). W. Garry Waldrop.
DDS. Inc. d/b/a Lifetime Denial Care (“Defendant" or “Appellant'’) files this nolice of appeal lo
ihe First or Fourteenth Couri of Appeals, Defendant desires to appeal from the judgment
rendered against ll by (his court on luly 1, 2015.
Appellant is a party affected by the trial court’s judgment. Appellant did not participate,
either in person or through counsel, in the hearing resulting in the judgment complained of. In
addition. Appellant did not timely file a postjudgmenf motion, a request for findings of fact and
conclusions of law or a Rule 26.1(a) notice of appeal.
Respectfully submitted,
By;. A/ Jennifer S. Wilson _
Jennifer S. Wilson
Slate Bar No. 21697500
3040 Post Oak Blvd., Suite 1300
Houston, Texas 77056
Telephone: (713) 212-2674 (Direct)
Telephone: (713) 552-1234 (Main)
Facsimile: (713) 212-2790 (Direct Facsimile)
1
23
CERTIFICATE OF SERVICE
I hereby certify that on September 1, 2015, a copy of this Notice of Appeal has been
served on counsel for Plaintiffs as follows:
Mr. Ned Gill, III Via Certified MailNo. 9314 8699 0430 0016 2073 74
Gill, Revack, Samaan & Muller, LLP
6575 West Loop South, Suite 600
Bellaite, Texas 77401
/s/ Jennifer S. Wilson
Jennifer S. Wilson
2
24
9/1/2015 5:01:31 PM
-
Chris Daniel District Clerk
Harris County
Envelope No: 6753110
By: WASHINGTON, PHYLLIS
Filed: 9/1/2015 5:01:31 PM
Local Rule Notice of and Assignment of Related Case in Appeals
(sample; file as part of notice of appeal]
As required by the Local Rules Relating to Assignment of Related
Cases to and Transfers of Related Cases between the First and Fourteenth
Courts of Appeals, I certify that the following related appeal or original
proceeding has been previously filed in either the First or Fourteenth Court of ;
Appeals:
None =
W
Caption:
Trial court
case number:
Appellate court
case number:
i
[S i gna ture o f cerHfying attorney or pro se party]
Qg-P V SL O \ 'ST
[Date]
;
Note: See Local Rules for the definitions of ‘underlying case,” ‘‘related,” and :
"previously filed.” i
i
i
:
25 :
Page 30 TEXAS RULES OF APPELLATE PROCEDURE
Comment to 2002 change: Rule 29.5 is amended to 31.2. Hearing
acknowledge that a trial court may be prohibited by law from
proceeding to trial during the pendency of an interlocutory An appeal in a habeas corpus or bail proceeding will be
appeal, as for example by section 51.014(b) of the Texas Civil heard at the earliest practicable time. The applicant need not
Practice and Remedies Code. personally appear, and the appeal will be heard and determined
upon the law and the facts shown by the record. The appellate
Comment to 2008 change: Rule 29.5 is amended to be court will not review any incidental question that might have
consistent with Section 51.014(b) of the Civil Practice and arisen on the hearing of the application before the trial court. The
Remedies Code, as amended in 2003, staying all proceedings in sole purpose of the appeal is to do substantial justice to the
the trial court pending resolution of interlocutory appeals of class parties.
certification orders, denials of summary judgments based on
assertions of immunity by governmental officers or employees, 31.3. Orders on Appeal
and orders granting or denying a governmental unit’s plea to the
jurisdiction. The appellate court will render whatever judgment and
make whatever orders the law and the nature of the case require.
The court may make an appropriate order relating to costs,
Rule 30. Restricted Appeals to Court whether allowing costs and fixing the amount, or allowing no
of Appeals in Civil Cases costs.
A party who did not participate—either in person or 31.4. Stay of Mandate
through counsel—in the hearing that resulted in the judgment
complained of and who did not timely file a postjudgment (a) When Motion for Stay Required. Despite Rule 18 or
motion or request for findings of fact and conclusions of law, or any other of these rules, in the following
a notice of appeal within the time permitted by Rule 26.1(a), may circumstances a party who in good faith intends to
file a notice of appeal within the time permitted by Rule 26.1(c). seek discretionary review must — within 15 days
Restricted appeals replace writ of error appeals to the court of after the court of appeals renders judgment — file
appeals. Statutes pertaining to writ of error appeals to the court with the court of appeals clerk a motion for stay of
of appeals apply equally to restricted appeals. mandate, to which is appended the party's petition
for discretionary review showing reasons why the
Notes and Comments Court of Criminal Appeals should review the
appellate court judgment:
Comment to 1997 change: This is former Rule 45. The
appeal by writ of error procedure is repealed. A procedure for an (1) when a court of appeals affirms the judgment
appeal filed within 6 months — called a restricted appeal — is of the trial court in an extradition matter and
substituted. This rule sets out who may take a restricted appeal. thereby sanctions a defendant's extradition; or
Rules 25.1 and 26.1 set out the method of perfection and the time
for perfecting the appeal. (2) when a court of appeals reverses the trial
court’s judgment in a bail matter — including
bail pending appeal under Code of Criminal
Rule 31. Appeals in Habeas Corpus, Procedure article 44.04(g) — and thereby
Bail, and Extradition Proceedings grants or reduces the amount of bail.
in Criminal Cases
(b) Determination of the Motion. The clerk must
promptly submit the motion and appendix to the
31.1. Filing the Record; Submission
court of appeals, or to one or more judges as the
court deems appropriate, for immediate
When written notice of appeal from a judgment or order in
consideration and determination.
a habeas corpus or bail proceeding is filed, the trial court clerk
must prepare and certify the clerk’s record and, if the appellant
(1) If the motion for stay is granted, the clerk will
requests, the court reporter must prepare and certify a reporter’s
file the petition for discretionary review and
record. The clerk must send the clerk’s record and the court
process the case in accordance with Rule 68.7.
reporter must send the reporter’s record to the appellate court
within 15 days after the notice of appeal is filed. On reasonable
(2) If the motion is denied, the clerk will issue a
explanation, the appellate court may shorten or extend the time
mandate in accordance with the court of
to file the record. When the appellate court receives the record,
appeals' judgment.
the court will — if it desires briefs — set the time for filing
briefs, and will set the appeal for submission.
30
Page 26 TEXAS RULES OF APPELLATE PROCEDURE
Rule 34.5(c)(2). The appeal must be dismissed if a or nolo contendere, and received a punishment that did not
certification that shows the defendant has the right of exceed what the defendant agreed to in a plea bargain, the rule is
appeal has not been made part of the record under amended to make clear that regardless of when the alleged error
these rules. occurred, an appeal must be based on a jurisdictional defect or a
written motion ruled on before trial, or be with the permission of
(e) Clerk's Duties. The trial court clerk must note on the the trial court.
copies of the notice of appeal and the trial court’s
certification of the defendant’s right of appeal the Comment to 2002 change: Rule 25.2, for criminal cases,
case number and the date when each was filed. The is amended. Subdivision 25.2(a) states the parties’ rights of
clerk must then immediately send one copy of each appeal that are established by Code of Criminal Procedure article
to the clerk of the appropriate court of appeals and, 44.01 and by article 44.02, the proviso of which was repealed
if the defendant is the appellant, one copy of each to when rulemaking power was given to the Court of Criminal
the State's attorney. Appeals. Subdivision 25.2(b) is given the requirement that a
notice of appeal be in “sufficient” form, which codifies the
(f) Amending the Notice or Certification. An amended decisional law. The requirement in former subdivision
notice of appeal or trial court’s certification of the 25.2(b)(3) that a plea-bargaining appellant’s notice of appeal
defendant’s right of appeal correcting a defect or specify the right of appeal is replaced by a requirement in
omission in an earlier filed notice or certification, subdivision 25.2(d) that the trial court certify the defendant’s
including a defect in the notification of the right of appeal in every case in which a judgment or other
defendant’s appellate rights, may be filed in the appealable order is entered. The certificate should be signed at
appellate court in accordance with Rule 37.1, or at the time the judgment or other appealable order is pronounced.
any time before the appealing party's brief is filed if The form of certification of the defendant’s right of appeal is
the court of appeals has not used Rule 37.1. The provided in an appendix to these rules. If the record does not
amended notice or certification is subject to being include the trial court’s certification that the defendant has the
struck for cause on the motion of any party affected right of appeal, the appeal must be dismissed. If a sufficient
by the amended notice or certification. After the notice of appeal or certification is not filed after the appellate
appealing party’s brief is filed, the notice or court deals with the defect (see Rules 34.5(c) and 37.1),
certification may be amended only on leave of the preparation of an appellate record and representation by an
appellate court and on such terms as the court may appointed attorney may cease.
prescribe.
(g) Effect of Appeal. Once the record has been filed in Rule 26. Time to Perfect Appeal
the appellate court, all further proceedings in the trial
court - except as provided otherwise by law or by 26.1. Civil Cases
these rules - will be suspended until the trial court
receives the appellate-court mandate. The notice of appeal must be filed within 30 days after the
judgment is signed, except as follows:
(h) (h) Advice of Right of Appeal. When a court enters a
judgment or other appealable order and the (a) the notice of appeal must be filed within 90 days
defendant has a right of appeal, the court (orally or after the judgment is signed if any party timely files:
in writing) shall advise the defendant of his right of
appeal and of the requirements for timely filing a (1) a motion for new trial;
sufficient notice of appeal.
(2) a motion to modify the judgment;
Notes and Comments
(3) a motion to reinstate under Texas Rule of Civil
Comment on 1997 change: This is former Rule 40. In civil Procedure 165a; or
cases, the requirement of an appeal bond is repealed. Appeal is
perfected by filing a notice of appeal. A notice must be filed by (4) a request for findings of fact and conclusions of
any party seeking to alter the trial court’s judgment. The law if findings and conclusions either are
restricted appeal — formerly the appeal by writ of error — is required by the Rules of Civil Procedure or, if
perfected by filing a notice of appeal in the trial court as in other not required, could properly be considered by
appeals. The contents of the notice of appeal is prescribed. The the appellate court;
notice of limitation of appeal is repealed. In criminal cases, the
rule is amended to apply to notices by the State, and to refer to (b) in an accelerated appeal, the notice of appeal must be
additional statutory requirements for the State’s notice. In felony filed within 20 days after the judgment or order is
cases in which the defendant waived trial by jury, pleaded guilty signed;
26
TEXAS RULES OF APPELLATE PROCEDURE Page 27
(c) in a restricted appeal, the notice of appeal must be (b) Criminal Cases. In a criminal case, a prematurely
filed within six months after the judgment or order is filed notice of appeal is effective and deemed filed
signed; and on the same day, but after, sentence is imposed or
suspended in open court, or the appealable order is
(d) if any party timely files a notice of appeal, another signed by the trial court. But a notice of appeal is not
party may file a notice of appeal within the effective if filed before the trial court makes a
applicable period stated above or 14 days after the finding of guilt or receives a jury verdict.
first filed notice of appeal, whichever is later.
27.2. Other Premature Actions
26.2. Criminal Cases
The appellate court may treat actions taken before an
(a) By the Defendant. The notice of appeal must be appealable order is signed as relating to an appeal of that order
filed: and give them effect as if they had been taken after the order was
signed. The appellate court may allow an appealed order that is
(1) within 30 days after the day sentence is not final to be modified so as to be made final and may allow the
imposed or suspended in open court, or after modified order and all proceedings relating to it to be included
the day the trial court enters an appealable in a supplemental record.
order; or
27.3. If Appealed Order Modified or Vacated
(2) within 90 days after the day sentence is
imposed or suspended in open court if the After an order or judgment in a civil case has been
defendant timely files a motion for new trial. appealed, if the trial court modifies the order or judgment, or if
the trial court vacates the order or judgment and replaces it with
(b) By the State. The notice of appeal must be filed another appealable order or judgment, the appellate court must
within 20 days after the day the trial court enters the treat the appeal as from the subsequent order or judgment and
order, ruling, or sentence to be appealed. may treat actions relating to the appeal of the first order or
judgment as relating to the appeal of the subsequent order or
26.3. Extension of Time judgment. The subsequent order or judgment and actions
relating to it may be included in the original or supplemental
The appellate court may extend the time to file the notice record. Any party may nonetheless appeal from the subsequent
of appeal if, within 15 days after the deadline for filing the notice order or judgment.
of appeal, the party:
Notes and Comments
(a) files in the trial court the notice of appeal; and
Comment to 1997 change:This rule is new and
(b) files in the appellate court a motion complying with combines the provisions of former Rules 41(c) and
Rule 10.5(b).
58.
Notes and Comments
Comment to 1997 change: This is former Rule 41. All Rule 28. Accelerated Appeals in Civil Cases
times for perfecting appeal in civil cases — including the time
for perfecting a restricted appeal — are stated. An extension of 28.1. Accelerated Appeals
time is available for all appeals. The provisions of former Rule
41(c) regarding prematurely filed documents are moved to Rule (a) Types of Accelerated Appeals. Appeals from
27. Nonsubstantive changes are made in the rule for criminal interlocutory orders (when allowed as of right by
cases. statute), appeals in quo warranto proceedings,
appeals required by statute to be accelerated or
expedited, and appeals required by law to be filed or
Rule 27. Premature Filings perfected within less than 30 days after the date of
the order or judgment being appealed are accelerated
27.1. Prematurely Filed Notice of Appeal appeals.
(a) Civil Cases. In a civil case, a prematurely filed (b) Perfection of Accelerated Appeal. Unless otherwise
notice of appeal is effective and deemed filed on the provided by statute, an accelerated appeal is
day of, but after, the event that begins the period for perfected by filing a notice of appeal in compliance
perfecting the appeal. with Rule 25.1 within the time allowed by Rule
27