J & J Container Manufacturing, Inc. v. Cintas- R. U.S., L.P. ( 2015 )

ACCEPTED
01-04-00933-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/10/2015 5:14:56 PM
CHRISTOPHER PRINE
CLERK
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
2/10/2015 5:14:56 PM
01-14-00933-CV CHRISTOPHER A. PRINE
Clerk
IN THE
FIRST COURT OF APPEALS
at Houston, Texas
J & J CONTAINER MANUFACTURING, INC.
Appellant
v.
CINTAS - R. U.S., L.P.
Appellee
Appealed from County Civil Court at Law No.3
Harris County, Texas
1044425
APPELLANT'S BRIEF
in support of
RESTRICTED APPEAL
01-14-00933-CV
IN THE
FIRST COURT OF APPEALS
at Houston, Texas
J & J CONTAINER MANUFACTURING, INC.
Appellant
v.
CINTAS - R. U.S., L.P.
Appellee
Appealed from the County Civil Court at Law No.3 ,Harris County, Texas
1044425
J & J Container Manufacturing, Inc. Appellant
1526 DeSoto
Houston, TX 77081
M . Robert Garcia Attorney for Appellant
SBN:07639150
405 Main Street, Suite 300
Houston, TX 77002
Cintas-R. U.S., L.P. Appellee
Houston, TX
Allen D. Russell Trial Counsel for Appellee
Taylor Taylor & Russell
815 Walker, Suite 250
Houston, TX 77002-5764 I
TABLE OF CONTENTS
Page
PARTY INFORMATION SHEET ............................................................. i
INDEX OF AUTHORITIES ....................................................................... iii,iv
EXmBITS..................................................................................................... v
CAUSE OF ACTIONIISSUE....................................................................... 2
PROCEDURAL mSTORY & BACKGROUND ..................................... 3
ARGUMENTS AND AUTHORITIES....................................................... 4
POINTS OF ERROR .................................................................................. 6,8
CONCLUSION ............................................................................................ 10
PRAyER...................................................................................................... 11
11
INDEX OF AUTHORITIES
CASES PAGE
1. Questor Invs. v. State ofChiapas, 997 S.W. 2d,
226, 227 (Tex. 1999).......................... ................................. ......... 5
2. Norman Comms. v. Texas Eastman Co., 955 S.W.2d
269,270 (Tex. 1997) ................................................................... 5
3. Fidelity & Guaranty Ins. v. Drewery Constr. Co., 186
S.W.3d 571,573 (Tex. 2006). ...................................................... 7
4. Primate Constr. v. Silver, 884 S.W. 2d 151,152
(Tex. 1994) ............................ ......................... ..................... .. ...... 7
5. Uvalde Country Club v. Martin Linen Supply Co., 690
S.W. 2d 884,885 (Tex. 1985) ........................ ............................... 7
6. Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273
(Tex. App. - Houston [1 st Dist.] 2001, no writ ............................ . 7,8
7. McKanna v. Edgar, 388 S.W. 2d 927,929 (Tex. 1965) ................ 7
8. Maddison Dual Fuels, Inc. v. Southern Un. Co., 944
S.W.2d 735 , 738 (Tex. App. - Corpus Christi 1997) .................... 7
9. Ingram Industries, Inc. v. Us. Bolt Mfg. , Inc. , 121 S.W.3d 31, 34
(Tex. App. - Houston [151 Dist.] 2003 , no pet.) ............................... 10
8. Wilson v. Dunn, 800 S.W. 2d, 833 , 837 (Tex. 1990) ...................... 10
III
10. Midstate Envt. Services v. Peterson, 435 S.W. 3d 287,290
(Tex. App. - Waco 2014, no pet.) ................... ................................. 12
11. Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290
(Tex. App. - Dallas 2003, no pet.) ............................................ ....... 15
12 . Lozano v. Hayes Wheels Int'!, Inc., 933 S.W.2d 245, 247
(Tex. App. - Corpus Christi 1996, no writ) .................................... 16
STATUTES PAGE
1. Tex. R. App. P 26.1( c), 30 ............................................. ........... 1,5
2. Bus. Orgs. Code §§ 5.521(1)(B), 5.255(1) .... .......... .................... 2,3,8,12
3. Tex.R.CivI5 ................................................................................ 11 ,15,16
4. Tex.R.Civ. P.99 .................................... .................................... 11 ,15,16
5. Civ. Prac. & Rem. Code, §17.045(a) ........................................... 11 ,15, 16
6. Bus. Orgs. Code, §5.253(b)(I)..... ......................... ......................... 12
7. Tex. R. Civ. P. 106(b) .. ........ ...... ... ............................................. 14
8. Tex. R. Civ. P. 107(a)............ ........................................................ 14
IV
EXHIBITS
LETTER
A Clerk's Record of Civil Court at Law No.3, Harris County
Texas for Case No. 1044425; Cintas-R. Us., L.P. v. J & J
Container Manufacturing, Inc . ............................. ................. .. 1
B Clerk's First Supplemental Record of Civil Court at Law
No.3, Harris County Texas for Case No. 1044425; Cintas-R. Us.,
L.P. v. J & J Container Manufacturing, Inc. .......... ................ 2
v.
o1-14-00933-CV
IN THE
FIRST COURT OF APPEALS
at Houston, Texas
J & J CONTAINER MANUFACTURING, INC.
Appellant
v.
CINTAS - R. U.S., L.P.
Appellee
Appealed from the County Civil Court at Law No.3
Harris County, Texas
1044425
TO THE HONORABLE FIRST COURT OF APPEALS:
Comes now I & I Container Manufacturing, Inc., Appellant, Movant here
(hereinafter called "J& I") by and through its attorney of record, M. Robert Garcia,
and pursuant to Rule 26.1 (c) and Rule 30 of the Texas Rules of Appellant
1
Procedure respectfully requests that the First Court of Appeals set aside a
Default Judgment rendered against Appellant and grant a New Trial and in support
would show unto the Court the following:
I. Cause of Action
1.1 This cause of action is an appeal from the granting of a default judgment
against "J & J" and in favor of appellee Cintas - R. U.S., L.P. The Final
Default Judgment was signed by the Honorable Linda Storey, presiding
judge of County Civil Court at Law No. 3 of Harris County, Texas under the
trial court' s cause number 1044425 and styled Cintas - R. Us., L.P. v. J & J
Container Manufacturing, Inc. The order being appealed was signed by the
trial court on June 3, 2014.
1.2 The sole issue on appeal is whether a lack of jurisdiction as to Defendant
"J&J" is apparent on the face of the trial court's record, thus invalidating the
trial court' s default judgment.
l.3 Appellant filed its Notice ofIntent to File a Restricted Appeal on November
18, 2014.
1.4 The issues on appeal are:
(1) Whether the court lacked jurisdiction over Defendant "J & J" because
Plaintifffailed to strictly comply with the service requirements of
Bus. Orgs. Code §§5.251(1)(B), 5.255(1) under the original citation,
2
that is Plaintiff did not use reasonable diligence in serving
Defendant's president, vice president, or registered agent at its
registered office, before resorting to substitute service on the
Secretary of State, thus rendering the default judgment invalid.
(2) Whether the court lacked jurisdiction over Defendant "J & J" because
Plaintifffailed to strictly comply with the service requirement of Bus.
Orgs. Code §§ 5.251 (1 )(B), 5.255(1) under the original citation, that
is, ascertaining that the citation requesting service of process through
the Secretary of State, met all statutory requirements under Tex.
R.Civ. P, 15,99, Civ. Prac. & Rem. Code § 17.045(a) and Bus. Orgs.
Code §5.521, and thus rendering the default judgment invalid.
(3) Whether the court lackjurisdiciton over Defendant "J & J" because
Plaintiff failed to strictly comply with the substitute service
requirements of Tex. R. Civ. Pro. 106(b)(1) and 106(b)(2) by failing
to file a Motion for Substituted Service, specifically requesting the
court's authority to serve the Texas Secretary of State as allowed by
the Bus. Orgs. Code §5.253(b)(I), and thus rendering the default
judgment invalid.
II. Procedural History & Background
2.1 Plaintiff initially filed this lawsuit on February 27, 2014.
2.2 On that same date, Plaintiff requested an "Original Petition Citation" to be
issued. The Original Petition Citation is addressed to: "J & J Container
Manufacturing, Inc., a corporation by Serving the Secretary of State"
(emphasis added) and adds "Defendants Address: registered agent, Anthony
Lewis Cook, 6124 W. Little York, Houston, TX 7709l."
3
2.3 Presumably, Plaintiff then forwarded the Original Petition and Citation to
the Texas Secretary of State for service of process.
2.4 The Secretary of State received the request for service on April 2, 2014 and
forwarded a copy on April 7, 2014 to: J & J Container Manufacturing, Inc.,
Registered Agent, Anthony Lewis Cook, 6124 W. Little York, Houston,
Texas 7709l.
2.5 The Process was returned to the Secretary of State ... "on April 23, 1014,
Bearing the notation Return to Sender, Not Deliverable As Addressed,
Unable to Forward."
2.6 Plaintiffthen presumably requested, received and filed the Whitney
certificate provided by the Secretary of State.
2.7 On May 21 , 2014, Plaintiff filed a Motion for Default Judgment.
2.8 On June 3, the trial court held a hearing, granted Final Default Judgment in
favor of Plaintiff and signed the order. There was no reporter's record made
of the hearing.
2.9 Plaintiff filed an Abstract ofJudgment on July 7, 2014.
2.l0 Plaintiff requested a Writ of Execution on July 7, 2014.
2.11 Appellant, J & J filed its Notice of Intent to File Restricted Appeal on
November 18, 2014.
4
III. ARGUMENT AND AUTHORITIES
3.1 To prevail on its restricted appeal, J & J must establish that (\) it filed
notice of the restricted appeal within six months after the judgment
was signed; (2) that it was a party to the underlying lawsuit; (3) that it
did not participate in the hearing that resulted in the judgment
complained of and did not timely file any postjudgment motions or
requests for findings of fact and conclusions of law; and (4) that error
is apparent on the face of the record. Tex. R. Civ. P. 26.1 ( c ), 30;
Questor Invs. v. State ojChiapas, 997 S.W. 2d 226,227 & n.l (tex.
\999); Norman Comms. v. Texas Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997)
3.2 Plaintiff files its Motion for Default Judgment according to the
Clerk's Record on May 2, 2014. (See Exhibit A, Clerk's Record, Bates
Numbers 000017-000031)
3.3 A hearing for Final Default Judgment was held on June 3, 2014 and
the order granting Final Default Judgment was signed the same day by
the Honorable Linda Storey. (See Exhibit A, Clerk's Record, Bates
Numbers 000032-000033)
5
IV. ERRORS APPARENT ON THE FACE OF THE RECORD
4.1 When a default judgment is attacked by restricted appeal, there is no
presumption in favor of valid issuance, service and return of service.
Fidelity & Guaranty Inc. v. Drewery Constr. Co. , 186 S.W.3d 571 ,
573; see Primate Constr. v. Silver, 884 S.W. 2d 151,152 (Tex. 1994)
Failure to show strict compliance with the rules relating to proper
service renders any attempted service invalid and requires the court to
set aside the default judgment. Uvalde Country Club v. Martin Linen
Supply Co. , 690 S.W. 2d 884,885 (Tex. 1985) Jurisdiction over a
defendant must be established in the record by an affirmative showing
of service of citation independent of recitals in the default judgment.
Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex. App.
-Houston [1 sl Dist.] 2001, no writ) Additionally, strict compliance
must be affirmatively shown in the record unless the defendant
voluntarily appears before judgment. McKanna v. Edgar, 388 S.W. 2d
927,929 (Tex. 1965)
4.1 "[A] default judgment obtained after an attempted substitute service
will not stand without a showing by the plaintiff that, before it
resorted to service on the Secretary of State, it first used reasonable
diligence in seeking service on the registered agent of the corporation
7
at the registered office." Maddison Dual Fuels, Inc. v. Southern Un.
Co. , 944 S.W.2d 735,738 (Tex. App. - Corpus Christi 1997)
Additionally, the record must show on its face that the plaiIitiffused
reasonable diligence to serve the corporation' s president, vice-
president or registered agent at its registered office. See Bus. Orgs.
Code §§5.521(1)(B), 5.255(1); Wright Bros. Energy, Inc. v. Krough,
67 S. W. 3d 271,274 (Tex. App. - Houston, [1 Sl Dist.] 200 I, no. pet.)
To establish reasonable diligence, the record must establish more than
just some problem with the address. Wright Bros. 67 S.W.3d at 275
(return citation must explain why service was not accepted) See also
Bus. Orgs. Code §§5.521(1)(B), 5.255(1)
FIRST .POINT OF ERROR: Whether Plaintiff failed to demonstrate
reasonable diligence in seeking service on Defendant's registered agent.
4.2 Upon the filing of Plaintiff's Original Petition, Plaintiff also requested
issuance of an Original Citation directed to Defendant, J & J, naming
Defendant's registered agent and providing the address of the
registered agent where process should be served. However, the
8
Original Citation also requested that Defendant be served "by Serving
the Secretary of State". (See Exhibit A-Clerk's Record, Bates Number
000044)
4.3 Furthermore, Plaintiff states in its Original Petition that" J & J
Container Manufacturing, Inc. failed to appoint or maintain a
registered agent in this State and its registered agent, Anthony Lewis
Cook, cannot with reasonable diligence be found at the registered
office at 6124 W. Little York, Houston, Texas 77091. Therefore, the
Secretary of State shall be an agent of J & J Container Manufacturing,
Inc. upon whom process may be served." (See Exhibit A - Clerk's
Record Bates Numbers 000004-000005)
4.4 There is no evidence in the Clerk's Record (See Exhibit A- Clerk 's
Record, Bates Numbers 000001 -000040) nor in the First
Supplemental Clerk' s Record, (See Exhibit B - First Supplemental
Clerk 's Record, Bates Numbers 000041 -00005 7) that Plaintiff ever
made any attempts to serve Defendant's registered agent. There is no
return citation on file with the clerk which indicates why the
registered agent could not be served or at least indicates the number of
attempts that were made to serve Defendant's registered agent.
Therefore, there is no evidence on the face of the record which
9
demonstrates that any reasonable diligent efforts that were made to
serve Defendant. Plaintiff must establish, before resorting to
substitute service on the Secretary of State, that it used reasonable
diligence in seeking service on the registered agent of a corporation.
Ingram Industries, Inc. v. Us. Bolt Mfg. Inc. 121 S.W.3d 31,34 (Tex.
App. - Houston [1 st Dist.] 2003, no pet.) A default judgment is simply
improper against a defendant who has not been served in strict
compliance with the law. Wilson v. Dunn, 800 S.W. 833, 837 9Tex.
1990)
4.5 Furthermore, there is no evidence in the Clerk's record that Plaintiff
filed a "First Amended Original Petition" requesting that substituted
service be made on the Secretary of State. Additionally, there is no
evidence that Plaintiff then requested the issuance of an alias citation
naming the Secretary of State as the agent for service of process for J
& J. (See Exhibit A - Clerk 's Record, Bates Numbers 000001-000040
and Exhibit B- First Supplemental Clerk's Record, Bates Numbers
000041-000057)
4.6 The Court should overturn the decision of the trial court because
reasonable diligence was not used to serve Defendant prior to seeking
substituted service through the Secretary of State. Specifically,
10
Plaintiff did not even request that its Original Citation be issued solely
naming the Registered Agent of the Defendant corporation. There is
simply no evidence in the record that demonstrates any efforts made
by Plaintiff to serve Defendant's registered agent. Instead, Plaintiff
apparently and immediately sought substitute served through the
Secretary of State. (See Exhibit B - First Supplemental Clerk 's
Record, Bates Number 000044) Defendant J & J was not afforded
due process and the default judgment should be overturned and the
case remanded to the trial court for a new trial.
SECOND POINT OF ERROR: Whether the citation complies with
Tex. R. Civ. PIS, 99 and Civ. Prac & Rem. Code §17.045(a). The
citation must contain the following information: (1) identify the statute
authorizing service, (2) the defendant's name, (3) the most recent
address of the entity on file and (4) when specified by statute, the proper
identification of the address.
4.7 Plaintiff requested issuance of a citation attempting to name the
Secretary of State as agent for substitute service of process. However,
the citation does not identify the statute authorizing service and
11
therefore the citation is defective and service is invalid. (See Exhibit
B- First Supplemental Clerk 's Record, Bates Number 000044)
4.8 Pursuant to Tex. R. Civ. P. 99(b)(2), the citation shall be signed by the
clerk under seal of court. The copy of the citation provided in the
Clerk's First Supplemental record does not contain a seal nor a
signature of the deputy clerk and is therefore defective. See Midstate
Envt. Servs v. Peterson, 435 S.W. 3d 287,290 (Tex. App. - Waco
2014, no pet.) Also, (See Exhibit B - First Supplemental Clerk's
Record, Bates number 000044)
4.9 Plaintiff also does not provide the "most recent address of entity on
file" as required by Bus. Orgs. Code §5.253(b)(1) Plaintiffs own
pleadings contained Defendant's "most recent address of the entity on
file". On page two (2) of Plaintiffs Original Petition, (See Exhibit A-
Clerk 's Record, Bates number 000005), Plaintiff states: " A true and
correct copy of said agreement is attached hereto as Exhibit "A". The
contract was executed by an authorized representative of defendant."
(See Exhibit A - Clerk's Record, Bates Numbers 000008-000015)
12
4.10 Exhibit "A" of Plaintiff's Original Petition is a copy of the contract
made the subject of this lawsuit. The "most recent address of entity
on file" can be found at the top of page 1 of the contract. (See Exhibit
A- Clerk's Record, Bates Number 000008) Had Plaintiff provided the
"most recent address of entity on file", Defendant might have been
properly served. Instead, Plaintiff provided the address for the
registered agent which had already been detelmined to be invalid,
with predictable results.
THIRD POINT OF ERROR: Whether Plaintiff strictly and correctly
complied with the process used to request substitute service on the
Secretary of State.
4.11 When Plaintiff filed its Original Petition, it also requested an original
citation to be issued but instead of seeking to served Defendant's
Registered agent, Plaintiff requested that the Citation also include
wording seeking substitute service through the Secretary of State. (See
Exhibit A - First Supplemental Clerk 's Record, Bates Number
000044) In order to have correctly complied, Plaintiff should have
requested the Original Citation be issued solely to Defendant, naming
13
the Registered Agent as the person to be served, even if Plaintiff knew
that the agent was no longer at that address.
4.12 The process server then should have attempted to serve the Registered
Agent and noted any and all attempts at service on the return. Tex. R.
eiv. P 107(a) Upon not being able to serve the Registered Agent, the
process server should have noted on the return the number of attempts
and why process was not able to be served and filed it with the court
clerk. Tex. R. eiv. P. I07(a) . No such return was filed with the clerk.
(See Exhibits A and B - Clerk 's Record and First Supplemental
Clerk's Record, Bates Numbers 000001-000040 and 000041- 000057)
4.13 The filing of the unexecuted citation along with the return would have
provided the "reasonable diligence" documentation needed to go
forward with substitute service. But this was not done Then,
Plaintiff, to be extra cautious, could have filed a Motion for
Substitute Service under Tex. R. eiv. P, 106, secured the court' s order
for substitute service, filed an Amended Original Petition and
correctly requested an alias citation to be issued naming the Secretary
of State and then forwarded process to the Secretary of State.
14
4.14 Plaintiff did not follow this process and so service is defective and the
Court should oveliurn the trial court's rulings and remand the case to
the trial court for a new trial
V. CONCLUSION
5.1 The Court should overturn the trial court and grant a new trial because
there were defects in service. Specifically,
a. defendant was served by substitute service by serving the
Secretary of State, but plaintiff did not strictly comply with the
appropriate statutes and rules for substitute service. See Tex. R. Civ.
P. 106(b) Specifically, Plaintifffailed to exercise reasonable
diligence in serving Defendant or its registered agent prior to seeking
substitute service. Plaintiff also apparently tried to circumvent the
requirements of Tex.R. Civ. P. 15,99; Civ. Prac. & Rem. Code
§17.045(a) and Bus. Orgs. Code §5 .251(1)(B) and 5.255(1) by
requesting in its Original Citation, that service be authorized on the
Secretary of State. There is simply no evidence in the Clerk' s files that
demonstrate any effort by Plaintiff to serve Defendant or its registered
agent, prior to resorting to service upon the Secretary of State. There
is no evidence because no such diligence was exercised by Plaintiff
before mailing the process to the Secretary of State.
15
b. A default judgment rendered following substitute service is void if the
plaintiff did not strictly comply with the rules for service of citation.
Westcliffe, Inc. v. Bear Creek Constr. Ltd., 105 S.W.3d 286, 290
(Tex. App.- Dallas 2003, no pet.); Lozano v. Hayes Wheels Int 'I, Inc.
933 S.W.2d 245, 247 (Tex. App. - Corpus Christi 1996, no writ)
c. The citation used to constructively serve defendant through the
Secretary of State was defective in that Plaintiff failed to originally
request that the Original Citation name only Defendant and its
registered agent. Secondly, Plaintifffailed to even attempt a single
time to serve Defendant's agent. Plaintiff apparently tried to contact
the registered agent or checked the address to see if the registered
agent was still there and did not find him. These may have been the
"reasonable diligent efforts" that perhaps Plaintiff used to locate the
registered agent. These attempts are not, however, the same as
attempting to serve the agent after issuance of the citation.
FUl1hermore, the citation that was issued did not list the statute
under which service was being requested and therefore service of
process was invalid. (See Civ. Prac. & Rem. Code §17.045(a); Tex. R.
Civ. P 15, 99) And finally, the citation in the clerk's file is not signed
16
nor does it have the requisite seal. This makes the citation defective
and the service of process invalid.
VI. PRAYER
6.1 For all of the above reasons and in the interest of justice and fairness,
Appellant respectfully requests that the Court reverse the rulings of
the trial court and remand the case for a new trial.
6.2 And if a new trial is ordered, Appellant also prays that the Court order
Defendant to return all of the funds which it had to pay to satisfY the
judgment in order to keep from having its manufacturing equipment
seized and sold at auction.
Respectfully submitted,
IM.Robert Garcia!
M. Robert Garcia
SBN: 07639150
405 Main Street, Suite 300
Houston, TX 77002
(713) 223-0908
(713) 229-9448 Fax
Mrobgarcia@aol.com
ATTORNEY FOR APPELLANT
J & J Container Manufacturing, Inc.
17
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of J & J Container
Manufacturing, Inc.'s Appellant's Brief was served to all parties or counsel
of record on this the lOth day of February, 2015 in accordance with the Tex.
R. Civ. P., via regular mail, certified mail, return receipt requested,
electronic service and/or via facsimile addressed as follows:
Allen D. Russell
Taylor Taylor & Russell
815 Walker, Suite 250
Houston, TX 77002
arusseIJ @taylaw.com
1M. Robert Garcia!
18
TAB 1
Exhibit "A"
CLERK'S RECORD
Notice of Appeal
Trial Court Cause No. 1044425
In the County County Civil Courts Court Number Th~@fldgt~ig~1pPEALS
of Harris County, Texas HOUSTON, TEXAS
1218/2014 9:47:47 AM
Honorable LINDA STOREY, Judge Presidin~HRISTOPHER A. PRINE
Clerk
Cintas-R. U.S., L.P. , Plaintiff(s)
vs.
J & J Container Manufacturing, Inc., Defendant(s)
Appealed to the
14th Court of Appeals, at Houston, Texas
Attorney for Appellant( s):
Name: M. Robert Garcia
Address: 405 Main Street, Suite 300, Houston, Texas 77002
Telephone no. : (713) 223-0908
Fax no.: (713) 29-9448
E-mail address:Mrobgarcia@aol.com
SBOT no.: 07639150
Attorney for: J & J Contianer Manufacturing, Inc.
Name of clerk preparing the clerk's record: Alegria, Joshua (CCO)
10000 0 '"
Event Date Event Type Vol- PaQ e
12/8/2014 Cover Page 1-1
12/8/2014 Index 1-2
121812014 Caption 1- 3
2127/2014 Plaintiffs OriQinal Petition 1-4
5/1/2014 Citation Retumed 1 - 16
5/21/2014 Plaintiffs Motion for Default Judment 1 - 17
6/3/2014 Final Default Judament 1 - 32
11/18/2014 Notice of Intent to File Restricted Appeal 1 - 34
12/812014 Certification Page 1 - 37
12/8/2014 Docket Sheet 1 - 38
12/8/2014 Bill of Cost 1 - 40
Comments:
Filed on 1218/2014 9:33:42 AM
OFFICE OF STAN STANART
COUNTY CLERK, HARRIS COUNTY. TEXAS
CIVIL COURTS DEPARTMENT
CAPfION
THE STATE OF TEXAS * IN THE COUNTY CIVIL COURT
*
* AT LAW
o * HARRIS COUNTY. TEXAS
0\
o
0\ At a term of the County Civil Court at Law No. Three (3) of Harris County. Texas. this began in said county on
o the ~ day of November. 2014 and which tenninated on l7! day of December, 2014. The Honorable LIND A
~ STOREY sitting as judge of said court. the following proceedings where had, to wit:
I
~
.......
o Docket No. 1044425
N
I
....:l * IN TIIE COUNTY CIVIL COURT
U *
* AT LAW Three (3)
U * HARRIS COUNTY. TEXAS
U
CINIAS-RUS I,P
...x.s...
J & J CONTAINER MANUFACTIJRING INC
P.O. Box lS2S I Houston. TX 77251 · 152:5 I (713) 755·6421
Ponn No. H· OI -l46 (Rev. 04129f2011) WWylCq T'l
AUTOMATIC LOST REPLACEMENT CHARGE DETAILS
% of Inventory Price 'ea
• MInimum Charge: $..:."'0,00"-____
"' per Clellvtry.
• M.k..up Clwge: S 2.2' per garment.
• Non.standardlSpedai Cui Garm.nt (I.• .• non.-landard. non·llocIted. u~u.My small or large Slze•. unv,u.11y thort or long 11.lve or htngttl. atc)
prwmium 1 0.15 par g.rment plr dltlwty.
• Sellon,t SI.lvtI Change S~ per chang. per garment.
• Under no drcum.t.ncel wnl the Company ICClpltextlle1 blaring frae liquid. ShOp towell may not be uNCI 10 deln up oU or lolvent BpIiIB.
ShOp lowel contllntr S per dellYery.
• ~ortt Charge lor logomat '121S.00
• UnHorm Storagl lod(ll~r': $._ _ _ _ ealdellV8f')'. lttndry lock",,: , _ _ _ _ lalde6very Shipping: $_ _ __
• Service Chllil $,~&",
••",5_ _ per delivery.
ThIs ServIce Ch.rge is used to hetp Compeny ~y varloul fIuctu.tIng QJfT8fII,nd f\ltute cotta inCluding. 001 not limited to. COlta dlf9d1y or lnd llectly relate d
to the environment. anergy luutl. I8f\'iOl and dellYlry of goods and 18Nk::et.1n .dditkln to othaf mllcellaneoUi COlts Incurred or thai may be fncvrred In
the future by COmplny.
• Sile Change; Customer agrees to have employ", m",urM by. Clnta, rep,.... nt.ti\l. ullng glrment -lIzt,ampJes A Charge 01 M
•
'5.00 per glnn,nt will be llse,..d for employ"' .Ize chtnged within" weeki of InstaUelion.
Page' of 8
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! • Uniform Adv.1Uge S,~O~
.``_ _ per garment.
4
o Uniform AdVlnt.;. CGY8tI dlm.ged garments needing raplaCld outlklt of norm.1 WI,r and tear. UnIform Advantllge do" not cover 1081 or unreturned
garment•. The Customer or ComPiny may ~OCII Unitom'! AdVlnlagl'l Iny UIM.
3
o • Other:
FACIUTY SERVICES PRODUCTS PRICING:
:3
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~
<: :_",._, ~ _ _ _ _ _ _ _ _ _ _- L_ _ _ _ _ _ _ _ `` __ ~ ______ ~_
o o Floor o Restroom o Kitchin o RelUaUfanl
o
:3 No Sl~ V.. tf Unn..... All prment. will be dMntd by Cultomer.
:2 No $elect V.. If rec;:eMng Un," Service. Company m.y m.kI periodIc phyalcllinvenlort., of Ilemsln possession or
tnt'"' control at CUitomer.
No Seled V.. tf receiving dl,..d embroidery. If ..rvlce II dllCOnUnued for any employee. or Customer deletel any 01
tht garment. with the direct embroidery lot .ny ,...on. or terminate. thl••greement for any reason or faUs to
r'eI"Ift' th" 'Ore.m,nt. CURomer witt purchal18 ,II direct embroidered g.rmen'l.t the time thll)' are removed
t'om IIJ'YIc. a1 the then current raplaoement Vllul.
v.. Select: No tf customer doe. not want to par1ldpate In Uniform AdVanlage.
Page 2 of 8
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•••••
1. TM o.rltomer, ttl aICCN.ofW
STANDARD UNIFORM RENTAL SERVICE AGREEMENT
and ,"Igna rcUitomet1 order, from CINTAS CORPORATION or eny of Ita IUbsldi,Oes. successors and assigns
3 rComplnY1 III of the C~tomtr's requfl1lmentl 01 garment rantal tlMetl Ind other 111m, coV8f.d by Ihll agreemanl during the term of thl; agr88menl all
In It:COIdlnce with 0'1_ pridng, lenn. and ODndltlon. con!11r\H herein. Prfdng II blled on 52 weekI billing per rental Item per year.
1
5
5
raplllcemint !fOlio nonn,r we.r w.
2. All "annents and other rented '''''', war b, cI,enld ,nd m.lntalned by Company and remain !he property of the Company. Any gannenlS !hal require
be ,..placed by Com~ny .t no c:hIrgl to CUllom.r.
9 J . Un" .. Il)8clftld otherwise. the garmentllupplled under thla _gr. .ment .r. not lame retard.nt (If acid ,.&lst,nt and conl.1n no spaciat flam a retardant or
add mlttan! r..turN. FIlm. ret-rdln! and ,cId ,.1IIt.nt garmantl .... IYln.bIt from Company upon requesl. Customer l"r18110 notify ils employeel tnal
o !heIr glnnenta .... not dlllgnid for use In .rlu of flamm,balty r1.k or where oontad with hJurdou, materiala Is pOlStbll . Customer war/ants that none of
the employ ... for whom g.rments are IUppRld under this 'gMml"! r.qulfl fI.m. rltard.nt or acid full"nl dothing .
o
5 4. Cultomer agree. 10 n~ Campln)" In wrlting. of.ny hant'doUi mattfla.lhat m.y ba p6ckad up by Company In the ,olted garmonts or other textiles
3 ..l'YIced under thll ag,.eml"t. In no u .. will huardous m.tattal, be Pffllnt to tM an.nllhat they may be h.rmful to Compeny', employeltS.
5. The weekly Nn\ll chargl fo(.ny IndMdu.llehlng '" employ of Cualomer CoIn be Iermlnal~. but orIy aner all Vanneocs Iuued 10 \ha l individuili. or !he
c:tJmtOt ,.~ YlJue of ume. hive been retumed or paid to Company. Any noo llanderd. or aped.1 products (i.. .. logo mall) musl be purd'la5ed by
the ClIllomel' If MMc:e hi atoppN! tor a ny ,....on. If iWma .r. Ioat ord.mIQl~ by any me.,. CUltomerwitl ply the tnen CUNenl rep lacement values for said
Item,. Should CUitorTWr require garment Ilze, thel I,.. oUtl1de 1I1e standn Ike ranaa. CUllom.r Igrees 10 ply Ihe speclnc premium price 'Ior :hose Ilem,
and llul d.llgnated und.. Unlfonn Prk:fng.
G. Thll Igre.ment Is '''''dtve
II of the date of IXliCUtion. Ttl. Inttl'l term of !hll .grelmenl IhII be II sel forth on thl fronl o( this agreemant and shall
.utomatJcally r.new for the lime perfod of time unt... CQn'lPf;ny " notlflecl. to !h. c;ontr.ry. In Wf1t1ng , 6() dlys 10 advance of the e ~plratlo n of lhe then
aIITInl linn. Company hn tha ttghllo (nail" pricel. "I'M CUllom.r hi. the right 10 reJ8CC the Inaalae within len (10) days or tho nollce. If Customer
rej.ctl Ine price Increl .. , Complf1Y may termln.te Ihll Igl"lemenl.
7. If the CUllomlr r.oaJvel dll~nl pricing due to bundnng of producWlervlOH, CUltomer IcJtnowledg8J Ihl' dllcount II lubjecllo CUltomer continuing
the bundling o( the productli..rvtoel. Should CUllom., discontinue bundling, priCing rnay be Incre.sed !o the nOf'l dlacountad prIcing. All InvoIces must be
p.lo within len dayl after the end of !he month. I"Wlit wll1 .CCtUI on any .mount, which Int nol plld when due from the date due 10 Ihe date 01 payment in
fuW .1 In InnuII pet'o.nta"e rail .qu.llo tne I....... of (I) .Ighte.n perc:ent 1 e% or (b) ttw maximum rite permitted by .pplltlbl. Itw.
a. Company II' 1Ice,... . .nd not the owner of the C.thar1t tr.ctem.rted products. If Company It\ould no IDnger have suCtl license. Ihen Company will
subsUMe the C.l'hlrtl ndem.rbd g.rmlnlS with g.rm.nll of IImlltr m.11IfiI1 and qu.JiIy.
g. CUltom.r hereby .greel to defend, Indemnlfy.nd hold h.nnle .. ComPiny from .ny ClIlml .nd d.mageilltsing out or or ,ssoCiated wilh this 9greamenl.
to. Complny gUIl"lntMi 10 denver ttM hlgh.1t qUlltty tladle rental " IVka .t III tlrM'. Any complaint•• bout ttl. quality of the urvlts whith
,..otvect
hive not Man
to ,.aotv. any mlterlal camplelnt In e ,...onable ".rIod of time, CUltOtMf ml1 t.rmlnatt this .gre4tfMnt provided III rant.llt,ma
the thin current repl.cement va tu. . or retumed to Complny In S100d and u•• ble condtUon.
.r.
In the normal cou,... of bUllna,1 "'II be Hnt by rt'liJlItlred lan.r to Com.,-ny'. G. naral Manlger. If Company then faits
pa id for at
11 . Add itlona' QJltomer .mploy.... productt Ind alNlcea may be added 10 thll agrHmant a nd I h•• automatica"y become pari 01 a nd 5ubjetl to lhe terms
hereof thll lgr"mlnt. Ind subject 10 all of Ita pro..... lon • . ff Ihit 'gtHman( I. I.rminlted elrty. the parties agree lhal the dam.ges .u,lalned by Company
will bt .ubstanl1al .nd dlfflwll to 'Ic.rtain. Therefore, if thll ~r. .rnanl ll I.rmln.ted by CLltlomer prior to the .pplicatlon explraUon dale for any reason
other th.n dOQlmtnted qUl11t)' ofMMoe ru.ons whlch.nt not cur.d .1 Nt forth .bove. or I.rmlnlted by Comp.ny for cause .I.ny Ume , Customer will pay
to Company, II liquidated d.mlg . . .nd not as I penltty. the g~ll.r of !iO% of !he aver.g. weekly in\lOlce lolal multiplied by the number of weeks
r.m.lnlng In thl unexpired linn, or buy back .U "annenlt and olh.r pnxIlK:tt .!located to CUltom.r .1 the Ihen curr.nl rephlcement values . Customer &hall
.1'0 be ,.sponlltrie for Iny unp.1d charge. on CUltom.,. .ccount prtor to termln.tIon.
12. Any dl.pute or m.tler .rillng In connection with or rel.tlng to this 1;1'Wfl1Ifl1 IhaD be ,.sot",d by binding Ind nnlllfbllr.Uon. The arbilratlon shall be
condvcIad pursulnt to appliClIM IItIl or federllltbltr.tIon Ilw. Any IUch Clilputa ah._be determined on an Indlvldu.1 bllil. shill be considered unique as
to Its racu, ,nd .ha. no« be consolld.led In .ny Irbltratlon or other proceeding with .ny dalm or contro\l8rsy of tny other pany. The e~c1u slve jurisdiClion
and forum for relolulkm of .ny Iud'! dllpule Ihlllile in tha.tale whtre CUllom.r is located .
13. CUllom,r ClrtlfIe, tI1s1 Comp.ny ialn no way lnh1nglng upon.ny eltlsllng contract between Customer and any olher service provider
1~ . This .greement contlins the entire agreemenl of Ihe par1lel with r"pea 10 the lubject millar of ttli. agrsemenl and lupersedes all prior nBgot/aIJons,
Igreementl .nd undetltandlnga wIth respecl 1het110. Thll .greem.nl may only b. ,mtnded by, written document IX8QJtad by all parties.
15. Thll Agreemenl m.y nol be modified .• mended or lupplemanteclexcept In wrilillQ algnecl by Il'Ilulhofilad representati.... of Cinlu, provided. however. it
• F~aral . • t.tl or IGalI gowmmanta' body or ill raprennt.U..,. it • p,rty to Ihl& Au/um.n!. the proposed modincatiort . • mendment or 5upplemenl must be
In wilting signed by • Pruldenl or Senior VICe President of Clnl...
Terms and Conditions Reviewed 181
Page 30ra
y. DDU01C
2
o
1 By..,g . . agr. .mtnt. 1.110 authorize CIntM to check my cr.dllo d• ..,.. pI YlMnlllrma for thilltgretmtnt.
4
o By algnlnQ''' egrw,ment. the CUllomer WllNei hlIh'IIf' Il;nIlunt II. r.qulrlment for HNk:81 ,.ndered. Ttl, customer I"I'MI 10 pay ,II .ervlces In full without
Iht tlgnatu,. on llelr weekly 1nYoIct(1). CultOrnetl wfth multiple weekJy Invok:el hive the opUon to waive their Ilgrwlur. onlUbut one Invoice or may walv& thalr
3 Ilgr'l.lt\n on aa 1nvok:H. tUhe aJltomer Choo... to relaln slgn.ture Nhortty. the rupectlw SSR ~t be able 10 canted: the customer to obtain a delivery
o lJon,tur,.
3 Slngl,lnvo/lce, :Slpnatu,"- Waived Mulilpleinvoical :S lgnllure Waived All
I JIgI'M tht11 1m IUlhotized to .!gn en behelt Of the J&J Container
crnl•• ~Uon No :,,000=82'-_ _ _ _ _ _ _ _ __
5 --------
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o Clntla SI. Rep SIgn : _ _ _ _-'....
,."-"."'
0fL
.,,,:;',, •.!:,:,,
.::-,, . ,,,._____ p~... S~nN.me : _____"-_``~_______
o Clnt.. 81_ Rep ,...".: ",Ch",."",otIo!!!28~rown~!-_ _ _ _ _ __ PI.... Print Na"...; ,M"lg.,u".~1G~.'".,C!. ___________ _
5
4 PI.... Prlnt nile: ,O"'"":::..::M,,.:::"!:.g,,.::.'_ ____________
Cualomer Em,"Addr...: EJ!
5 g~n1611) 'f.'Int>:\nv iI' q.') l'Ict .. flIt u!':-Jtl<' ((10,,,1 :' .... '
5 Elt3mpl" 1. !, ht' $,\11111 ~'I i . j~ \ Hi' ; :, . rr 'I: ~ ", l'.j ,\ , '~ ,
,';11,11; .i ": I,:I·,..... '~(; 1'1 ~f' n';Jl'IJ••• · .(\tl' f':tH.'" el,.-.:I " .' ./fI.... ",r
Irs.. hu- ~1I1\lll tl(Jn
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Gntas l ocallol'l ... OU082
Page 6 of 8
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RECORDER'S MEM ORANDU M:
I At the time of re cordation, thIs Inslttl.'l1ent wa !
found to he lnad6Quate for thE! best photog ra phic
I reproduction be cau se 01 illegibility, carbon or
p hoto coPy. discolored papar, etc. All blackouts,
addItions Hnd cI'la fl ges wera present al the time
1M Instrument WII filed and recordod.
1
\, OLl0 015
2 FILED
o 51112014 8:41 :09 AM
Sian Sianan
1 County Clerk
4 Harris County
o
5
o
8
I The State of Texas
o Secretary of State
3
3
o
o 2014-238540-1
o
2
I, the undersigned, as Secretary of State ofTexas DO HEREBY CERTIFY that
according to the records of this office, a copy of the Citation and Plaintiff's Original
Petition in the cause styled:
CINTAS-R.U.S., LP. VS. J & J CONTAINER MANUFACTURING, INC.
County Civil Court at Law #3, Harris County, Texas
Cause No: 1044425
was received by this office on April 2, 2014, and that a copy was forwarded on April
7,2014, by CERTIFIED MAIL, return receipt requested to:
J & J Container Manufacturing, Inc.
Registe~ Agent, Anthony Lewis Cook
6124 W. Little York
Houston, TX 77091
The PROCESS was returned to this office on April 23, 2014, Bearing the notation
Return To Sender, Not Deliverable As Addressed, Unable To Forward.
Date issued: April 24, 2014
MNPtr"'~ele~Y
Nandita Berry
Secretary of State
CT/VQ
.): DOUDlG
FILED
5/2 1/20141:25:54 PM
Stan Sia nart
County Clerk
z Harris County
o
I CAUSE NO. 1044425
4
(1
6 CINTAS-R.U.S., L.P. § IN THE COUNTY COURT
o §
co
-' v. § AT LAW NO. 3
§
1
3 J & J CONTAINER §
c MANUFACTURING, INC. § HARRIS COUNTY, TEXAS
-'
I
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
o
o TO THE HONORABLE JUDGE OF SAID COURT:
9
4
COMES NOW, Cintas-R.U.S., L.P., P1aintiffin the above-styled and nwnbered Cause, and
files this its Motion for Default Judgment against Defen&nt, J & J Container Manufacturing, Inc.,
and as grounds therefore would show the Court the following:
I.
Cintas-R.U.S., L.P., Plaintiff, filed its Plaintiff's Original Petition on February 27, 2014.
n.
Defendant, J & J Container Manufacturing, Inc., was duly served with citation via the Texas
Secretary of State on April 7, 2014. The citation bearing the signed return has been on file with the
clerk of this court more than ten (10) days prior to the date of this motion, pursuant to TEX. R. Civ.
P.I07.
ID.
Defendant's answer date was Monday, April 28, 2014, pursuant to TEX. R. Civ. P. 237.
Defendant has failed to file an answer or otherwise appear herein as required by law.
Plaintiff's claim is liquidated and is proven by a true and correct copy of the Standard
Uniform Rental Service Agreement and the affidavit of John Ayers that are attached as Exhibits" A"
& "B," respectively. Plaintiff's claim for attorney's fees is supported by the Affidavit of Allen D.
." )" Ol '"
O(JU !
2
o
1 Russell also attached and identified as Exhibit "C."
4
o WHEREFORE, PREMISES CONSIDERED, Cintas-R.U.S., L.P., Plaintiff herein, prays
6
o
5 that the Court grant a judgment by default against the Defendant, J & J Container Manufacturing,
1
3 Inc., for the amount of damages sustained by Cintas, and which is proven by the exhibits attached,
5
1 plus all accrued interest, attorney's fees, costs of court and for such other and further relief, at law
o
o or in equity, both general or special to which Plaintiff may show itsclfto be justly entitled.
8
5
Respectfully submitted,
LL
Allen D. Russell
State Bar No.OO784889
815 Walker, Suite 250
Houston, Texas 77002
arussell@taylaw.com
(713) 615-6060 Telephone
(713) 615-6070 Facsimile
ATTORNEYFORP~IFF
CINTAS-R.U.S., L.P.
CERTIF1CATE OF SERVICE
I hereby certify that on May & 2014, a true and correct copy of the foregoing Plaintiffs
Motion for Default Judgment has been forwarded via facsimile and/or certified mail, return receipt
requested to:
Anthony Lewis Cook
J & J Container Manufacturing, Inc.
6124 W. Little York
Houston, Texas 77091
·;, 00001 8
..
z
0
1 Service locaUon No. :082 (NW HOUSTON, TX)
4
MLRAlNA : _ _ _ _ __
0 Account Number: _ __ _ _ _ _ __
6
0 STANDARD UNIFORM RENTAL SERVICE AGREEMENT Contract Nc ..:_ _ _ _ _ __ _ _ _
c
-' Dale :06/07120 13
J
~ CUllomvt Name : 1"'.~ ~I the' l.lIllI'SI!:.'.,:: I"LoV t>~c:l, I.. !I ~ ':' " I: ~" ':'.1' , ;1 ,
()
:,',"':10" '1.. In :·.. ·.11 ··'· \ ,", LI"." l ! _, ' ''' .. :'! ... .." . .: .,1 -"
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~'wh "')0 p ,lniS ille !l.ftQ1f("!.IIu: 1P.1II;,1 aM tho'! :" )(T)p:fl ll ,$ ,,! '=\'\IR:I I(iI . :1 ,1 1 ! .. •., .. ,.,,! .. '
,·u. ~ I ...mt.'f·S 1 \(.f.!'se~IOI'
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o CAUSE NO. 1044425
6
o ClNTAS-R.U.s., L.P. § IN THE COUNTY COURT
5
§
1 V. § AT LAW NO.3
3 §
5
1
J "J
CONTAINER
MANUFACTUlUNG, INC.
§
§ HARRIS COUNTY, TEXAS
o.J
AFFIDAVIT
o
4 STATE OF TEXAS §
§
....
COUNTY OF BARRIS §
KNOW AIL MEN BY THESE PRESENTS:
BEFORE ME, the UDdersigDCd authority, on this day personally appeared 10hn Ayers who
being first duly sworn, stated as follows:
1. "Myname~lohnAyers. Iunderstandlamundcroathinmakingthisaffidavit. I am
an individual of at least eighteen (\8) years of age, of sound mind, and am fully
competent to make this affidavit.
2. "I am the General MaoagerofCintas-R.U.S., L.P., Location 082, ("Cintas''), Plaintiff
in the above styled and IlIII1Ihm:d cause. In such capacity, I have authority to make
this aftidavit on behalf of Cintas and I have personal knowledge of the facts stated
in the attached Motion and in this affidavit, and all such f~ are true and correct
3. "Cintas and 1& J Container ManufBcturing.Inc. enlered into a Standard Uniform
R.cotaIScrviceAgr=nentwherebyCintasagrccdtofumishmc:rchandise,equipment
and services to saidDefcndant. A true and correct copy of the Agreement is attached
to this Motion as Exhibit A and is incorporated herein by reference for all purposes.
4. "The c o _ was for a period ofthirty-six months. J &1 Container Manufacturing.
Inc. promised to pay Cintas the weekly rental and !lCl'Vicc fees plus sales tax due and
payable. Defendant defaulted in mating its recjuired rental payments under the
Agreement. and failed to tender the full weekly rental payments. The outstanding
account balance due and owing to Cintas from J & J Container Manufacturing, Inc.
is the sum 0[$441.46.
5. "J & J Container Manufacturing. Inc. agreed and promised to pay Cinlas, pursuant
to the terms ofthe Agreemt:nt, liquidated damages based on the calculations provided
forintheAgreement. The contract was terminatcd on October 15,2013. leaving 146
weeks mnainingon the tcrm ofthe contract. The weekly invoice amount is $189.24.
"'---'I:'l
Ex "'~ \,;\-
~
llll (J 02 '?
2
o
1
4
o Therefore, UIIder the calculatioos provided in the contract, Defendant owes
6
o
$13,814.52 in liquidated
damages.
5 "'The claim of Cintas against J & 1 Container Manufacturing, Inc. in the amounts set
6.
forth above isjust and true, and the claim is currently due and owing and alljust and
3 lawful offsets, paymenlll and mdilll have beenallowed. Clntas fully perfonned under
5 the terms of the Agreement.
I
7. "Clntas retained the law firm ofTaylor, Taylor & Russell to initiate and prosecute the
o lawful and just claim of Cintas against 1 & J Container Manufacturing, Inc. eintas
1
o bas agreed to pay Taylor, Taylor & RqsselI reasonable attorneys' fees for all legal
5 services =dered In COIIJICCtion with such claim.
Further Affiaot sayeth not
Cintas-R.U.S., L.P.
SUBSCRIBED AND SWORN TO BEFORE ME, by the said 10hn Ayers, on this the
../L",'" ,!Or( . ". ~
{iijlic7!/A4·L
in and for the si8tCOCXJlS
2
o
1
tj.
o CAUSE NO. 1044425
6
o CINTAS-R.U.S., LP. § IN THE COUNTY COURT
5 §
1
V. § AT LAW NO. 3
3 §
5 J &: J CONTAINER §
I MANUFACI1JRING, INC. § HARRIS COUNTY. TEXAS
o Al1FIDAVIT OF
1 LAST KNOWN ADDRESS
o
tOJ
STATE OF TEXAS §
COUNTY OF HARRIS §
..
KNOW ALL MEN BY THESE PRESENTS:
BEFORE ME, the undersigned au1hmity. on this day personally appeared, John Ayers, who
being first duly ~m, stated 88 follows:
"My IlIIIne is John Ayers. I understand I am under oath in making this affidavit. I am
the Oeneral Manager of Cintas-R.U.S., L.P., Loc:ation 082, Plaintiff in the above
styled and numbered cause. I am an individual of at least eighteen (18) years of age,
of sound mind, and am fully compettnt to make this affidavit I have personal
knowledge of tile facts statod herein, all of which are true and correct.
"1 certifY that the last known address of the registered agent oethe Defendant,
J &JContainerManufacturing,Inc., is 6124 W.Littie Yor!t.Housloit, Texas 77091 ."
Further Affiant saycth not
JohnAy
Cintas-R.U.S., L.P.
SUBSCRIBED AND SWORN TO BEFORE ME, by the said John Ayers, on this the
I~ day of &'1 , 201~4' ~
_1!-4. ``:z----
2
o
1 CAUSE NO. 1044425
4
o ClNTAS-R.U.s., L.P. § IN THE COUNTY COURT
6
o §
5 v. § AT LAW NO. 3
§
1 J & J CONTAINER §
3
5 MANUFACTURING, INC. § HARRIS COUNTY, TEXAS
1
AFFIDAVIT IN SUPPORT OF ATtORNEY'S FEES
o
1 STATE OF TEXAS §
o
7
COUNTY OF HARRIS §
KNOW ALL MEN BY TIiESE PRESENTS: •.
BEFORE ME, the undersigned authority, on this day personally appeared Allen D. Russell,
who being first duly sworn, stated as follows:
I. My name is Allen D. Russell. I am the attorney of record in the above styled and
numbered cause for and on bebalfofCintas-R.U.S., L.P. herein. I am over eighteen
(18) years of age and am fully competent and duly authorized to make this affidavit,
which facts are true and correct.
2. I am an attorney duly licensed by the State of Texas and a partner of the law finn of
Taylor, Taylor & Russell. I am currently practicing in Houston, Harris County,
Texas. I am familiar with the fees charged by attorneys in and around Harris County,
Texas, for services of a similar nature to those perfonned herein.
3. Cintas-R.U.S., L.P. has retained the law firrn ofTaylor, Taylor & Russell to represent
it in this suit against J & J Container Manufacturing, Inc., Defendant herein .
4. All legal services perfonned on bebalfofCintas-R.U.S., L.P. have been reasonable
and necessary.
5. In my opinion, the sum of no less than $2,500.00 is a reasonable and customary fee
for the legal services performed in this matter for and on behalf of Cintas-R.U.S.,
L.P. in and around Harris County, Texas, through the granting of this Defaul t
Judgment, and collection efforts thereon. My opinion is based on a number of facts,
including without limitation, to the following:
A. The time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perfonn the legal services properly;
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1 B. The fee customarily charged in the locality for similar legal services;
4
o c. The amount involved;
6
o
5 D. The time limitation imposed by the client and the circumstances;
1 E. The nature and length of the professional relationship with the client; and
3
5
1 F.
o Further Affiant sayeth not.
1
o
8
Allen D. Russell
Tayl?:, Taylor & Russell
,.
L)
~ SUBSCRIBED AND SWORN TO BEFORE ME, by the said Allen D. Russell, on this the
day of~y ,2014.
~J...J~
Notary Public in and for the State of Texas
DU[103 1
,
. - •
2
0
1 CAUSE NO. 1044425
4
0
6 § IN THE COUNTY COURT
0 §
6 § AT LAW NO. 3
: §
0 J & J CONTAINER
9 §
3 MANUFACTIJRlNG, INC. § HARRIS COUNTY, TEXAS
7
: DNALDEFAULTJPDGMENT
0
0
1 BE IT REMEMBERED that on this day, a day of the regular tenn of this Court, came on
3
to be considered the Default Judgment in favor of Plaintiff wherein Cintas-R.U.S., L.P. is the
Plaintiff and J & J Container Manufacturing, Inc. is the'Defendant herein. The Defendant, J & J
Container Manufacturing, Inc., having been duly cited, failed to appear and answer herein, and
wholly made default
The citation was served according to law and returned to the Clerk where it has remained on
file for a period of at least ten (10) days prior to the date hereof. The Court has read the pleadings
and papers on file and is of the opinion that all of the allegations contained in Plaintiffs Original
Petition have been admitted by Defendant, J & J Container Manufacturing, Inc., and that the
Plaintiff's cause of action is liquidated and proven by the injuries in suppOrt of Default Judgment.
Further, after reviewing the documents, the court finds that the Default Judgment filed by Cintas-
R.U.S., L.P. should be entered; Therefore, it is
ORDERED, ADJUDGED and DECREED that Cintas-R.U.S., L.P., Plaintiff, is granted
judgment as to liability for all actual damages as well as reasonable and necessary attorney's fees to
which it may be entitled to have and recover against Defendant, J & J Container Manufacturing, Inc.,
as follows:
;' 011 0032
• •
2
0
1 I. Liquidated damages pursuant to the Standard Uniform Rental Service Agreement in
4 the total amount ofSI3,8l4.52;
0
G
0 2. Damages for unpaid invoices in the total amount of $44 1.46;
6
: 3. Prejudgment interest from February 23, 2014 at the rate of6%per annum on the total
0
9 amount of the judgment in the sum ofS2!3.84;
3
7 4. Post-judgment interest on the entire amount of the judgment at the rate of 5% until
: such judgment is paid in full;
0
0
1 5. Reasonable and necessary attorney's fees in the sum ofTwo Thousand, Five Hundred
4 and Noll 00 Dollars (S2,500.00);
6. Any and all costs of court incurred herein;'
•
7. All relief not expressly granted herein is hereby DENIED; and
8. For all writs and processes necessary to enforce the judgment granted.
SIGNED this } day of d,= __ . 2014.
/
APPROVED AS TO FORM AND
ENTRY RE STED BY:
Allen D. Russel1 Defendant's Last Known Address:
State Bar No. 00784889 Anthony Lewis Cook
815 Walker, Suite 250 J & J Container Manufacturing, Inc.
Houston, Texas 77002 6124 W. Little York
arusse!!@taylaw,com Houston, Texas 77091
(713) 615-6060 Telephone
(713) 615-6070 Facsimile
ATTORNEYFORPL~
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CINTAS-R.U.S., L.P. QI
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... FILED
11118/20147:33 :17 PM
Stan Stanart
2 County Clerk
Harris County
0
1
4
1 CAUSE NO. 1044425
1
2 CINTAS·R. U.S., L.P. § IN THE COUN1Y COURT
0, §
1 V. §
1 § AT LAW NO. 3 (1HREE)
0 J & J CONTAINER §
5 MANUFACTIJRING, INC. § HARRJS COUN1Y, TEXAS
:
0
0
B NOTICE OF INTENT TO FILE RESTRICTED APPEAL
8
TO THE COURT OF APPEALS:
COMES NOW,] & J CONTAINER MANUFACTURING, INC., defendant in the matter
identified below and infonns the court that it wishes to appeal the matter identified below and in
support would show Wlto the court the following:
A. The deadline for filing a Restricted Appeal is November 29, 2014.
B. The trial court is the Harris COWlty Civil Court at Law, No. 3. The trial court
granted Plaintiff's Motion for Default Judgment The trial court's order granting
the Default Judgment was signed'on ]Wle 3, 2014.
C. The case number is 1044425; Cintas·R. u.s.,
LP. VS. .J & J Container
Manufacturing, Inc. in Harris County Civil Court at Law No. 3.
We respectfully request that the Court of Appeals docket this matter in either the First or
Fourteenth Court of Appeals.
7:7);;&L
, M. Robert Garcia
SBN: 07639150
405 Main Street, Suite 300
Houston, IX 77002
(713) 223·0908
(713) 29·9448 Fax
:Y.mbBarciarii:?cl~om
ATIORNEY FOR APPELLANT
J & J CONTAINER MANUFACTURING,
INC.
o
1
4
C! CERTIFICATE OF SERVICE
I
2 I hereby certify that a true and correct copy of the foregoing pleading was served on aJ 1
o counsel of record and filed with the trial court on this the 18th day of November, 2014, in
accordance with the Texas Rules of Civil Procedure, addressed as follows:
1
1
o
5
The Honorable Linda Storey
o Harris County Civil Court No.3
o 20 I Caroline, Floor
B
9 Houston, TX 77002
Allen David Russell
Taylor Taylor & Russell
815 Walker, Suite 250
Houston, TX 77002
M. Robert Garcia
... j ~ .f1 I) {'U 03 Gto::
.
,'"
2
o
4
I Local Rule Notice of and Assignment of Related Case in Appeals
j
2
o
As required by the Local Rules Relating to Assignment of Related Cases
1 to and Transfers of Related Cases between the First and Fourteenth Courts of
1
o Appeals, I certify that the following related appeal or original proceeding has
5 been previously filed in either the First or Fourteenth Court of Appeals:
o
o -9.. None
9
o o Caption:
Trial court
case number:
Appellate court
case number:
[Signature of certifying attorney or pro se party]
[Datel
Note: See Local Rules for the definitions of "underlying case: "related," and
"previously filed,"
RECORDER'S MEMORANDUM:
At the time of recordation. thilinstrument was
found to be ,_".quate for the beat photographic
...productlwn beeauu of illegibility, carbon or
photo copy. dieoolored paper, etc. All blockouts,
additions anci changes were present at the time
IhII Jrwtrument was filed and recorded.
," 00 [l03 F
Filed on 12/8/2014 9:33 :45 AM
OFFICE OF STAN STANART
COUNTY CLERK, HARRIS COUNTY, TEXAS
CIVIL COURTS DEPARTMENT
o THE STATE OF TEXAS
o COUNTY OF HARRIS
~
0\ I, STAN STANART, Harris County Clerk, Clerk of the County Civil Court at Law No. Three (3) and for Harri s
o
"'¢
County, Slate of Texas, do hereby certify that the above foregoing are true and correct copies of all the procccrlings
directed by counsel to be included in the transcript had in the case no. J044425.
I
"'¢ CINTAS-R. U.S., L.P.
~
vs.
o J & J CONTAINERMANUFACTURJNG INC
N
I
As the same appear from the originals now on fIle and of record in this office. Given under my hand and seal of
~ said court in the city of Houston, Harris County, on December 8, 2014.
U
U Office of STAN STANART,
U Harris County, Texas
Civil Court of Law
IS/Joshua Alegria
Joshua Alegria
Deputy Clerk
P.O. Box 1525 I HoustaD, TX 77251- 15251 (713) 755-6421
PannNo. H-OI - 145 (Rev. 0412912011) VYww CQ PRK HCTX NFJ Page I of I
Don03!
Docket Sheet
Event Date Party Event Tvpe Description
212712014 CINTAS-RUS LP Case Initiation Event
2127/2014 J & J CONTAINER Case Initiation Event
MANUFACTURING INC
2127/2014 RUSSELL ALLEN DAVID Case Initiation Event
2127/2014 Civil Case Information Sheet
2128/2014 J & J CONTAINER Citation Issued
MANUFACTURING INC
3/10/2014 CINTAS-RUS LP Electronic Filing Fee
3/10/2014 CINTAS-RUS LP Cover Letter
3/17/2014 J & J CONTAINER Citation Issued
MANUFACTURING INC
3/1712014 J & J CONTAINER Citation Issued
MANUFACTURING INC
3/28/2014 RUSSELL , ALLEN DAVID Crt 3-0rder for Trial Setting-
NonJurv
5/2/2014 CINTAS-RUS LP Electronic Filing Fee SECRETARY OF STATE
CERTIFICATE
5/1/2014 Letter FROM VENITA OKPEGBU E
5/1/2014 J & J CONTAINER Citation Returned SECRETARY OF STATE
MANUFACTURING INC SERVED ON 4-7-1 4
APPEARAN CE DATE 4-28-14
5/21/2014 CINTAS-RUS LP Electronic Filing Fee MOTION & ORDER FO R
DEFAULT JUDGMENT
5/21/2014 J & J CONTAINER Motion for Summary Judgment MOTION FOR DEFAULT
MANUFACTURING INC JUDGMENT
6/3/2014 J & J CONTAINER Default Judgment and Notice
MANUFACTURING INC
6/3/2014 RUSSELL ALLEN DAVID Default JudQment and Notice
6/3/2014 J & J CONTAINER Default Judgment and Notice
MANUFACTURING INC
6/3/20 14 RUSSELL ALLEN DAVID Default JudQment and Notice
6/3/2014 J & J CONTAINER Default Judgment and Notice
MANUFACTURING INC
'Hlfl O '~YQ
tl\ U
6/3/2014 RUSSELL ALLEN DAVID Default Judoment and Notice
6/13/2014 Notices Returned UNCLAIMED
DEFAULT JUDGMENT IN
FAVOR OF PLAINTIFF
6/30/2014 CINTAS-RUS LP Abstract of Judgment & Writ of
Execution to be Issued
7/7/2014 CINTAS-RUS LP Abstract of Judament
71712014 CINTAS-RUS LP Execution Issued
7/7/2014 CINTAS-RUS LP Execution Issued
9/10/2014 J & J CONTAINER Execution Returned EXECUTED
MANUFACTURING INC SUB 701
11/18/2014 J & J CONTAINER Electronic Filing Fee NOTICE OF INTENT
MANUFACTURING INC
11/18/2014 J & J CONTAINER Notice of Appeal NOTICE OF INTE NT TO FILE
MANUFACTURING INC RESTRICTED APPEAL
11/20/2014 Leiter of Assignment FILED WITH THE FI RST
COURT OF APPEALS
11/20/2014 Leiter of Assignment FILED WITH THE FI RST
COURT OF APPEALS
11/21/2014 Cost Leiter $38.00 FOR THE
PREPARATION OF TH E
ORIG INAL CLERK'S
RECORD
11/21/2014 Leiter LETTER FROM THE FI RST
COURT OF APPE ALS
12/412014 J & J CONTAINER TranSC[!Pt Fee (Clerk's
MANUFACTURING INC Record
12/8/2014 Transcript ORIGINAL CLE RK'S
RECORD FILED WITH THE
FIRST COU RT OF APP EAL S
121812014 Transcript ORIGINAL CLE RK'S
RECORD FILED WITH THE
FIRST COURT OF APPEALS
1218/2014 Transcript ORIGINAL CLERK'S
RECORD FILED WIT H THE
FIRST COURT OF APPE ALS
12/8/2014 Transcript ORIGINAL CLER K'S
RECORD FILED WITH THE
FIRST COURT OF APPEALS
12/8/2014 Transcript ORIGINAL CLE RK'S
RECORD FIL ED W ITH TH E
FIRST COURT OF APPEALS
nnfl03 ~
Filed on 12/8/2014 9:33:47 A M
Office of STAN STANART, County Clerk, Harris County, Texas
County Civil Courts Deparbnent
Address A ll Correspondence to:
P.O. Box 1525
Houston, TX 7725 1-1525
Bill of Cost
In
County Civil Court at Law No. Three (3)
Harris County, Texas
For
('f)
o
.......
Docket No. 1044425
0\ CINTAS-RUS LP J &J CONTAlNERMANUFACTURING INC
o Plaintiff Defendant
-.::tI A.D.R.S. 10.00 AD.R.S.
-.::t A.J.E 5.00 AJF.
....... Constable Constable
o County Clerk 56.00 County Clerk 38.00
N County Clerk-Cits. 4.00 County Clerk-Cits.
I
Court Records Preserv. 10.00 Court Records Preserv.
~ Court Reporter 15.00 Court Reporter
U Courthouse Security 5.00 Courthouse Security
U E-Filing Fees
I.L-S .
10.00
10.00
E-Filing Fees
IL-S.
4.00
U Judicial Maintenance 40.00 Judicial Maintenance
Judicial Support 42.00 Judicial Support
LawUbrary 15.00 LawUbrary
Records Management 5.00 Records Management
State E-Filing Fee 20.00 Deposition(,}
Total $247.00 Total $42.00
Original Clerk's record of $38.00 was paid by Law Office ofM. Robert Garcia, the attorney for the defendant on O,e 5'"
day of December, 20\4.
A true and correct Bill of Costs in the above cause as shown by Fee Account Ledgers to with I hereby ecrti fy on
December 8, 2014.
STAN STANART
County Civil Courts at Law
Harris County, TeX8S
ISIJoshua Alegria
joshua Alegria
Deputy Clerk
Form No. H-01-311 (Rev. 08/1512011)
TAB 2
Exhibit "B"
CLERK'S RECORD
First Supplemental Clerk's Record
Trial Court Cause No. 1044425
In the County County Civil Courts Court Number Th~@1'd9``Lfg~NAPPEALS
of Harris County, Texas HOUSTON, TEXAS
. . 2/5/20158:55:16 AM
Honorable LINDA STOREY, Judge Presldln\l;HRISTOPHER A. PRINE
Clerk
Cintas-R. U.S., L.P., Plaintiff(s)
vs.
J & J Container Manufacturing, Inc., Defendant(s)
Appealed to the
1st Court of Appeals, at Houston, Texas
Attorney for Appellant(s):
Name: M. Robert Garcia
Address: 405 Main Street, Suite 300, Houston, Texas 77002
Telephone no.: (713) 223-0908
Fax no.: (713) 29-9448
E-mail address:Mrobgarcia@aol.com
SBOT no. : 07639150
Attorney for: J & J Container Manufacturing, Inc.
Name of clerk preparing the clerk's record: Alegria, Joshua (CCO)
Event Date Event Tvoe Vol- Paoe
215/2015 CoverPaae 1- 1
215/2015 Index 1-2
215/2015 Cantion 1-3
3/1712014 Orininal Petition Citation 1-4
6/3/2014 Notice of Judament 1-5
6/3/2014 Notice of Judament 1-6
6/13/2014 Notices Returned 1-8
5/112014 Citation Returned 1 - 10
1/29/2015 Letter Reauestina First Suoolemental Clerk's Record 1 - 11
215/2015 Bill of Cost 1 - 13
215/2015 Docket Sheet 1 - 14
215/2015 Certification Paae 1 - 17
Comments:
Flied on 2/5/2015 8 :40 :55 AM
OFFICE OF STAN STANART
COUNTY CLERK, HARRIS COUNTY, TEXAS
CIVlL COURTS DEPARTMENT
CAPTION
THE STATE OF TEXAS * IN THE COUNTY CIVIL COURT
*
* AT LAW
* HARRIS COUNTY, TEXAS
0\
r--
r-- At a tenn of the County Civil Court at Law No. Three (3) of Harris County, Texas, this began in said county on
("'f"') the 3 rd day of Noyember, 2014 and which terminated on the 27th day of December. 2014. The Honorable I ,INl)A
~ STOREY sitting as judge of said court, the following proceedings where had, to wit:
I
trl
~
o Docket No. 1044425
N
I
~ * IN THE COUNTY CIVIL COURT
U * *
AT LAW Three (3)
U * HARRIS COUNTY, TEXAS
U
CINTAS-R US I.P
~
J & J CONTAINER MANUFACTURING INC
P.O. Box 15251 Houston. TX 77251-15251 (713) 755-6421
Form No. H-OI-I46 (Rev. 04t29n.Oll) Ytwwcq BBKJICIXNLI)' P:lge I of 1
(l!)[) 0~ 3
STAN STANART
COUNTY CLERK, HARRIS COUNTY, TEXAS
COUNTY crva COURTS DEPARTMENT
Docket Number: 1044425
Receipt Number: OOC No SherllflConstable Fee Collected
CINTAS-R.U.S., LP.
Plaintiff In The County Civil Court at Law No.Three (3)
VS. 201 Caroline I Suite 532
J & J CONTAINER MANUFACTURING, INC Houston, Harris County, Texas 77002
Defendant
00
o
~ THE STATE OF TEXAS
00 ORIGINAL PETmON CITATION
00
I
TO: J & J Container Manufacturing, Inc., i. a corpocation
~
~ by Serving the Secretary of State
o Defendants Address: registered agent, Anthony Lewis Cook, 6124 W . Little York, Houslon, Texas 77091
N Attached is a copy of petition.
I
....:l This instrument was filed on the 27'h day of February, 2014 in the above cited cause number and court. The in strument
attached describes the claim against you.
U
U You have been sued. You may employ an attorney. If you or your attorney does not file a written answer with th e county
U clerk who issued this citation by 10:00 a.m. on the Monday next foUowing the expiration of twenty days after you were
served this citation and petition, a default judgment may be taken against you.
Issued and given under my hand and the seal of said cour~ at Houston, Texas, on this 17th day of March, 2014.
(SEAL) STAN STANART, County C lerk
County Civil Court at Law No. Three (3),
201 Caroline, Suite 300
Harris County, Texas
Terrence Latrelle Washington
Deputy County Clerk
REQUESTED BY: AllEN DAVID RUSSELL
TAYLOR TAYLOR & RUSSELL
815 WALKER, #250
HOUSTON, TEXAS 77002
P.O. Box 15251 Houston, TX 77251-15251 (713) 755-6421
www.cclerk.hctx.net
Form No. H-Ol-29 (Rev. 03l21nOi2) Page 1 of 0
OFFICE OF STAN STANART
COUNTY CLERK, HARRIS COUNTY, TIlXAS
CIVIL COURTS DEPARTMENT
P.O. Box 15251 Houston, TX 77251-15251 (713) 755-6421
Date: June 4,2014
DOCKET NUMBER: 1044425
CINTAS-RUS LP IN THE COUNTY CIVIL COURT
VS. AT LAW NO. Three (3)
t"-
...... J & J CONTAINER MANUFACTURING INC HOUSTON, HARRIS COUNTY, TEXAS
00
M
00
......
I
~ DEFAULT JUDGMENT
...... IN FAVOR OF PLAINTIFF
o NOTICE OF JUDGMENT
N
I
....:l Texas Rules of Court requke me to notify you that a Judgment has been rendered .in the above numbered and s tyled cause.
U
U Signed:06J0312014 Sincerely,
U Judge: LINDA STOREY STAN STANART
County Clerk, Harris County. Texas
Joe L Bela,1cazar
Director
County Civil Courts Department
J & J CONTAINER MANUFACTURING INC
6124 W LITILE YORK
HOUSTON, TEXAS 77091
PormNo. H-Ol -96 (Rev. 0:I/Ol f20 l l)
(}lJnO ~ 5
OFFICE OF STAN STANART
COUNTY CLERK, HARRIS COUNTY, TEXAS
CNlL COURTS DEPARTMENT
P.O. Box 15251 Houston, TX 77251-15251 (713) 755-6421
Date: Jnne 4,2014
DOCKET NUMBER: 1044425
CINTAS-RUS LP IN THE COUNTY CIVIL COURT
ATLAWNO. Tbree(3)
HOUSTON, HARRIS COUNTY, TEXAS
VS.
J & J CONTAINER MANUFACTURING INC
DEFAULT JUDGMENT
IN FAVOR OF PLAINTIFF
NOTICE OF JUDGMENT
Texas Rules of Court require me to notify you that a Judgment has been rendered in the above numbered and styled cause.
Signed: 06/0312014 Sincerely.
Judge: LINDA STOREY STAN STANART
County Clerk, Harris County. Texas
Joe L Belalcazar
Director
County Civil Courts Department
ALLEN DAVID RUSSELL
TAYLOR TAYLOR & RUSSELL
815 WALKER, #250
HOUSTON, TEXAS 77002
Farm No. H-Ol -96 (Rev. ~/O I 12011)
rHJ[Jo~ 6
Filed on 6/4/2014 9:16:20 AM, Cl erk
FarmNo.H-OI -96 (Rev. 04101nO) 1)
,
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o
1 ,
4 OFFICE OF STAN STANART
o COUNTY CLERK, HARRIS COUNTY, TEXAS
6 CIVIL COURTS DEPARTMENT
I P.O. Box 1525eHouston, TX 77251-1525e(713) 755-6421
7
I
3 ...
"
~ .
.
. " .. .,-, . " Date: June 4, 2014
3
9
DOCKET NUMBER: 1044425
o
o CINTAS-RUS LP IN TIlE COUNTY CIVIL COURT
8 VS. AT LAW NO. Three (3)
I J & J CONTAINER MANUFACTURING INC HOUSTON, HARRIS COUNTY, TEXAS
DEFAULT JUDGMENT
IN FAVOR OF PLAINTIFF
NOTICE OF JUDGMENT
Texas Rules ofCowt require me to notifY you that a Judgment has been rendered in the above numbered and styled cause.
Signed: 06/0312014 Sincerely,
Judge: LINDA STOREY STAN STANART
County Clerk, Harris County, Texas
Joe L. Belalcazar
Director
County Civil Courts Depanment
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J & J CONTAINER MANUFACTURING INC
6124 W LITTLE YORK
HOUSTON, TEXAS 77091
Form No. H..QI-96 (Rev. 04/011201 1)
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