Preview
Electronically Filed
9/10/2021 4:51 PM
Hidalgo County District Clerks
Reviewed By: Alessandra Galvan
September 10, 2021
Via-efiling service
Judge Fernando Mancias
93rd District Judge
Hidalgo County, Texas
Re: Cause No.: C-1392-21-B; Walid Haidar, Ind. And as Rep. of 415 Trenton, LLC
d/b/a Walk-ons Sports Bistreaux vs. G&G Closed Circuit, LLC., pending in the
93rd Judicial District Court of Hidalgo County, Texas
Dear Judge Mancias:
Pursuant to the Court’s instruction to submit a post hearing brief on the issue of what is
consider an appearance, the following is the law on this issue:
“A party enters a general appearance when it (1) invokes the judgment of the
court on any question other than the court's jurisdiction, (2) recognizes by its
acts that an action is properly pending, or (3) seeks affirmative action from the
court.” Exito Electronics Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex.2004)
(per curiam). In general, a party's personal appearance before a trial court
indicates a submission to the court's jurisdiction, constituting a general
appearance and therefore, waiving any complaint as to service. Mays v.
Perkins, 927 S.W.2d 222, 225 (Tex.App.—Houston [1st Dist.] 1996, no writ)
(citing TEX. R. CIV. P. 120). Similarly, a defendant waives a complaint
regarding service if retained counsel appears in court on his behalf, seeking a
judgment or adjudication on some question. In re C.T., No. 13–12–00006–CV,
2012 WL 6738266, at *11 (Tex.App.—Corpus Christi Dec. 27, 2012, no pet.)
(mem.op.). Moreover, this court previously held that an appellant father
waived any complaint about service when his attorney ad litem attended the
termination hearing, announced not ready, but sought the court's consideration
of the child's best interest. In re P.Y.M., No. 04–13–00024–CV, 2013 WL
4009748, at *2 (Tex.App.—San Antonio Aug. 7, 2013, no pet.) (mem.op.).
Accordingly, a party's request for affirmative action constitutes a general
appearance because such a request recognizes a court's jurisdiction over the
parties, whereas the mere presence by a party or his attorney does not
constitute a general appearance. Seals v. Upper Trinity Regional Water
Dist., 145 S.W.3d 291, 296 (Tex.App.—Fort Worth 2004, pet. dism'd) (“[A]
party who is a silent figurehead in the courtroom, observing the proceedings
without participating, has not [generally appeared].”).
In Interest of D.M.B., 467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet. denied).
4900 North 10th Street, Suite F-3, McAllen, Texas 78504
Tel.: (956) 631-0745• Fax: (866) 266-0971
Electronically Filed
9/10/2021 4:51 PM
Hidalgo County District Clerks
Reviewed By: Alessandra Galvan
The controlling issue is whether counsel for Defendant G&G Closed Circuit’s attendance
at the scheduled default judgment hearing is considered a “general appearance” when counsel
asserted verbal objections to service without any written objections to the service as required
under Rule 122 or objecting to the court’s jurisdiction pursuant to a “special appearance” as
required under Rule 120a, Texas Rules of Civil Procedure. Clearly, Defendant did not file an
answer before the hearing, counsel for Defendant participated in the hearing, orally objected to
alleged defects to service, never filed a written Motion to Quash Service or written Special
Appearance – each of which singular or collectively are considered a general appearance in the
proceedings, and any objections to service prior to entry of the default judgement are considered
a waiver of those issues. Kawasaki Steel Corp., vs. Middleton, 699 S.W.2d 199, 202
(Tex.1985)(“A non-resident defendant, like any other defendant, may move to quash the citation
for defects in the process, but his only relief is additional time to answer.”).
Moreover, Counsel’s appearance at the hearing and participation in same conclusively
establishes that his conduct in not filing these required written motions by either objecting to
service by a formal written motion to quash, or written motion for leave to file an answer,
demonstrates a conscious indifference to the Rules and belies any assertions that the failure to do
so was due to an accident or a mistake, as Defendant was provided notice of the hearing and
could have easily preared those documents and files same before or during the hearing.
It is respectfully submitted that Defendant’s Motion for New Trial and to Set Aside
Default Judgment should be in all things Denied.
Respectfully Submitted,
MOORE LAW FIRM
J. Michael Moore
Attorney for Plaintiffs
JMM/gp
Cc:
Mr. David M. Diaz
Law Offices of David Diaz, PLLC
825 Watters Creek Blvd. Building M
Suite 250
Allen, Texas 75013
Email address: david@diazlawtx.com
ATTORNEY FOR DEFENDANT
G&G CLOSED CIRCUIT EVENTS, L.L.C.
4900 North 10th Street, Suite F-3, McAllen, Texas 78504
Tel.: (956) 631-0745• Fax: (866) 266-0971
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
J. Michael Moore
Bar No. 14349550
mmoore@moore-firm.com
Envelope ID: 57154678
Status as of 9/13/2021 8:43 AM CST
Associated Case Party: Walid Haidar
Name BarNumber Email TimestampSubmitted Status
Lit Docket lit-docket@moore-firm.com 9/10/2021 4:51:52 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
david diaz david@diazlawtx.com 9/10/2021 4:51:52 PM SENT
Preview
Electronically Filed 9/10/2021 4:51 PM Hidalgo County District Clerks Reviewed By: Alessandra Galvan September 10, 2021 Via-efiling service Judge Fernando Mancias 93rd District Judge Hidalgo County, Texas Re: Cause No.: C-1392-21-B; Walid Haidar, Ind. And as Rep. of 415 Trenton, LLC d/b/a Walk-ons Sports Bistreaux vs. G&G Closed Circuit, LLC., pending in the 93rd Judicial District Court of Hidalgo County, Texas Dear Judge Mancias: Pursuant to the Court’s instruction to submit a post hearing brief on the issue of what is consider an appearance, the following is the law on this issue: “A party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court's jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.” Exito Electronics Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex.2004) (per curiam). In general, a party's personal appearance before a trial court indicates a submission to the court's jurisdiction, constituting a general appearance and therefore, waiving any complaint as to service. Mays v. Perkins, 927 S.W.2d 222, 225 (Tex.App.—Houston [1st Dist.] 1996, no writ) (citing TEX. R. CIV. P. 120). Similarly, a defendant waives a complaint regarding service if retained counsel appears in court on his behalf, seeking a judgment or adjudication on some question. In re C.T., No. 13–12–00006–CV, 2012 WL 6738266, at *11 (Tex.App.—Corpus Christi Dec. 27, 2012, no pet.) (mem.op.). Moreover, this court previously held that an appellant father waived any complaint about service when his attorney ad litem attended the termination hearing, announced not ready, but sought the court's consideration of the child's best interest. In re P.Y.M., No. 04–13–00024–CV, 2013 WL 4009748, at *2 (Tex.App.—San Antonio Aug. 7, 2013, no pet.) (mem.op.). Accordingly, a party's request for affirmative action constitutes a general appearance because such a request recognizes a court's jurisdiction over the parties, whereas the mere presence by a party or his attorney does not constitute a general appearance. Seals v. Upper Trinity Regional Water Dist., 145 S.W.3d 291, 296 (Tex.App.—Fort Worth 2004, pet. dism'd) (“[A] party who is a silent figurehead in the courtroom, observing the proceedings without participating, has not [generally appeared].”). In Interest of D.M.B., 467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet. denied). 4900 North 10th Street, Suite F-3, McAllen, Texas 78504 Tel.: (956) 631-0745• Fax: (866) 266-0971 Electronically Filed 9/10/2021 4:51 PM Hidalgo County District Clerks Reviewed By: Alessandra Galvan The controlling issue is whether counsel for Defendant G&G Closed Circuit’s attendance at the scheduled default judgment hearing is considered a “general appearance” when counsel asserted verbal objections to service without any written objections to the service as required under Rule 122 or objecting to the court’s jurisdiction pursuant to a “special appearance” as required under Rule 120a, Texas Rules of Civil Procedure. Clearly, Defendant did not file an answer before the hearing, counsel for Defendant participated in the hearing, orally objected to alleged defects to service, never filed a written Motion to Quash Service or written Special Appearance – each of which singular or collectively are considered a general appearance in the proceedings, and any objections to service prior to entry of the default judgement are considered a waiver of those issues. Kawasaki Steel Corp., vs. Middleton, 699 S.W.2d 199, 202 (Tex.1985)(“A non-resident defendant, like any other defendant, may move to quash the citation for defects in the process, but his only relief is additional time to answer.”). Moreover, Counsel’s appearance at the hearing and participation in same conclusively establishes that his conduct in not filing these required written motions by either objecting to service by a formal written motion to quash, or written motion for leave to file an answer, demonstrates a conscious indifference to the Rules and belies any assertions that the failure to do so was due to an accident or a mistake, as Defendant was provided notice of the hearing and could have easily preared those documents and files same before or during the hearing. It is respectfully submitted that Defendant’s Motion for New Trial and to Set Aside Default Judgment should be in all things Denied. Respectfully Submitted, MOORE LAW FIRM J. Michael Moore Attorney for Plaintiffs JMM/gp Cc: Mr. David M. Diaz Law Offices of David Diaz, PLLC 825 Watters Creek Blvd. Building M Suite 250 Allen, Texas 75013 Email address: david@diazlawtx.com ATTORNEY FOR DEFENDANT G&G CLOSED CIRCUIT EVENTS, L.L.C. 4900 North 10th Street, Suite F-3, McAllen, Texas 78504 Tel.: (956) 631-0745• Fax: (866) 266-0971 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. J. Michael Moore Bar No. 14349550 mmoore@moore-firm.com Envelope ID: 57154678 Status as of 9/13/2021 8:43 AM CST Associated Case Party: Walid Haidar Name BarNumber Email TimestampSubmitted Status Lit Docket lit-docket@moore-firm.com 9/10/2021 4:51:52 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status david diaz david@diazlawtx.com 9/10/2021 4:51:52 PM SENT