W. Garry Waldrop DDS, Inc. D/B/A Lifetime Dental Care v. Gregory Pham, John Ma and Raymond DAO
14-15-00747-CV
| Tex. App. | Dec 30, 2015Background
- Plaintiffs (Pham, Ma, Dao) sued W. Garry Waldrop, DDS, Inc. d/b/a Lifetime Dental Care alleging fraud and breach of contract for unpaid associate-dentist compensation (25% of production).
- Citation was issued April 15, 2015; return of service shows service on “W. Garry Waldrop, DDS d/b/a Lifetime Dental Care” in April 2015; no answer was filed.
- Plaintiffs moved for default judgment; hearing held June 29, 2015; the court rendered default final judgment July 1, 2015 awarding each plaintiff specified principal, interest, $1,600 in attorney’s fees, costs, and post-judgment interest.
- Lifetime did not participate in the default hearing, timely post-judgment motions, or request findings; it filed a timely restricted appeal on September 1, 2015.
- Lifetime’s appellate brief argues (a) it is entitled to a restricted appeal; (b) service of citation/return was defective and did not show strict compliance with the rules; (c) the evidence was legally and/or factually insufficient to prove a contract and damages (testimony described written contracts but no writings were admitted); and (d) plaintiffs failed to establish a statutory or contractual basis for attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Right to restricted appeal | Plaintiffs: judgment was properly entered; appeal is untimely or improper (implied). | Lifetime: timely filed within 6 months, did not participate in hearing, did not file post-judgment motions — meets Rule 30 elements. | Trial court entered default judgment; Lifetime filed a restricted appeal (appellant asserts entitlement to relief under Rule 30). |
| 2. Validity of service of citation | Plaintiffs: citation was issued and served as reflected in the return. | Lifetime: return is defective—served name/format ambiguously (individual v. corporation), no affirmation the person served could accept for corporate defendant, and process server’s sworn disinterested statement under Rule 108 is missing; strict compliance required. | Trial court found defendant was served and entered default; Lifetime argues face-of-record error in service that supports reversal. |
| 3. Sufficiency of evidence for breach/damages | Plaintiffs: testimony at prove-up established written agreements and unpaid sums for each plaintiff. | Lifetime: testimony about written contracts violated the best-evidence rule (no contracts in evidence), no proof of performance, damages speculative and not segregated; legal/factual insufficiency. | Trial court awarded damages after default hearing; Lifetime contends the record on its face lacks competent proof to sustain those awards. |
| 4. Basis and amount of attorneys’ fees | Plaintiffs: sought fees (pleaded) and presented counsel’s testimony on fees. | Lifetime: plaintiffs pleaded no statutory or contractual basis with specificity; no proof of presentment required by Tex. Civ. Prac. & Rem. Code ch. 38; fees are derivative of defective damage award. | Trial court awarded $1,600 in fees per plaintiff; Lifetime argues that award is unsupported as a matter of law and fact and should be reversed. |
Key Cases Cited
- Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) (elements and nature of restricted appeals/writ-of-error-type review)
- General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942 (Tex. 1991) (restricted appeal as direct attack on default judgment)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (failure to affirmatively show proper service is error on the face of the record)
- Wachovia Bank v. Gilliam, 215 S.W.3d 848 (Tex. 2007) (no presumptions in favor of valid service in default-judgment context)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal sufficiency review)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (standard for factual-sufficiency review)
- Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (Tex. 1985) (service defects may render default judgment void)
- Pace Corp. v. Jackson, 284 S.W.2d 340 (Tex. 1955) (certainty required as to fact of damages; mathematical precision not always necessary)