Elishah Sawyers, Pax Crate & Freight, Inc. and Robin Sawyers v. Marc Carter and Sally Carter
01-14-00870-CV
Tex. App.Apr 29, 2015Background
- This is an amended reply brief by appellants Elishah Sawyers, Pax Crate & Freight, Inc., and Robin Sawyers challenging a default judgment entered September 12, 2014 in Waller County (Trial Ct. No. 14-07-22604). Appellants assert multiple service defects and procedural irregularities.
- Appellants say they did not receive actual notice of the signed default judgment until October 2014 and therefore filed a late notice of appeal (Oct. 27, 2014) and a later notice of restricted appeal (Mar. 27, 2015) to preserve jurisdictional options. The First Court of Appeals previously denied appellees’ motion to strike the notice of appeal.
- Appellants argue the September 12 order is interlocutory because it failed to grant requested permanent injunctions in definitive terms and omitted decretal language necessary to make it final. If interlocutory, appellate deadlines tied to a final judgment have not begun to run.
- Appellants raise multiple service-of-process challenges to the default judgment: missing addressee signature on certified-mail return, lack of date/time mail received, incorrect corporate naming/addressing (Pax Crate vs. Pax Crate & Freight, Inc.), inaccurate description of the pleading served, and absence of clerk file-stamps showing the returns were on file for the Rule 107(h) ten-day period. They assert strict compliance is required for default judgments.
- Appellants also argue that the plaintiffs (Carters) admitted the damages were unliquidated in the initial motion submitted to the court, so the judgment awarding $480,000 lacks legally and factually sufficient evidence to support the amount without proof at a hearing.
Issues
| Issue | Plaintiff's Argument (Carters) | Defendant's Argument (Sawyers/Pax Crate) | Held |
|---|---|---|---|
| Timeliness / jurisdiction of appeal | Appellees argue appellants’ ordinary notice of appeal and restricted notice were untimely and should be struck. | Appellants say they had no notice of the signed judgment until Oct. 2014, provided sworn affidavits giving a "reasonable explanation" for late filing, and the court already denied a motion to strike the Oct. 27 notice. | Appellants note the appellate court previously denied appellees’ motion to strike; jurisdictional challenges remain contested but were at least partly overruled by the court’s prior orders. |
| Whether September 12 order is final appealable judgment | Carters treat the order as final and contest late filings. | Appellants contend the order is interlocutory: no definitive permanent injunction language, lack of decretal specificity, and therefore appeal deadlines tied to a final judgment have not run. | Appellants argue the order is interlocutory; resolution of that question controls whether appeals are timely. |
| Adequacy of service on individual defendants by certified mail | Carters rely on the certified-mail returns and other record entries to establish service. | Appellants challenge certified-mail returns: missing addressee signature (no Elishah signature), missing date/time of clerk delivery, incorrect address/zip, and no clerk file-stamp proving returns were on file 10 days before judgment as required by Tex. R. Civ. P. 107(h). | Appellants assert strict compliance required; they urge these defects render service invalid and default judgment void. Appellate resolution pending. |
| Adequacy of service on corporate defendant Pax Crate & Freight, Inc. | Carters argue the returns and citation suffice to show service on the business. | Appellants point to inconsistencies: petition lists d/b/a and corporate name, citation addressed to "Pax Crate & Freight" (omitting ", Inc."), and no return showing service on the corporation—only on Elishah Sawyers. | Appellants contend naming/return inconsistencies invalidate service on the corporation and require reversal of the default. |
| Sufficiency of pleadings/returns to describe served pleading | Carters assert citation/returns and petition sufficiently describe the served instrument. | Appellants show citations/returns refer merely to "Plaintiff’s Petition" or "Plaintiff’s ORIGINAL PETITION," not to the pleaded "Plaintiffs’ Original Petition and Request for Permanent Injunction," violating Tex. R. Civ. P. 99(b)(4) and 107(b)(3). | Appellants argue the record fails to show an accurate description of the pleading served; thus service is defective. |
| Sufficiency of damages evidence | Carters sought and obtained $480,000 in damages. | Appellants contend the initially-submitted motion admitted damages were unliquidated and requested a proof hearing; the amended motion (not submitted) omitted that admission; record lacks evidence supporting $480,000. | Appellants argue there is legally and factually insufficient evidence to support the damages award; they seek reversal or remand. |
Key Cases Cited
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (implied motion for extension of time when notice filed within 15-day grace period)
- Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 1985) (strict compliance required for service of citation in default proceedings)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (return of service is prima facie evidence; not trivial)
- Mem'l Hosp. of Galveston Cty. v. Gillis, 741 S.W.2d 364 (Tex. 1987) (time limits and jurisdictional prerequisites for motions to reinstate; Rule 165a context)
- Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003) (definition of "reasonable explanation" for late filing)
- Weeks Marine, Inc. v. Garza, 371 S.W.3d 157 (Tex. 2012) (preference to reach merits when possible)
- Saenz v. Fidelity & Guaranty Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996) (damages proof requirements)