Browserweb Media Agency v. Maxus Energy Corporation

Citation: Not availableDocket: 01-14-01028-CV

Court: Court of Appeals of Texas; May 4, 2015; Texas; State Appellate Court

Original Court Document: View Document

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The document is an appellate brief for the case Browserweb Media Agency v. Maxus Energy Corporation, filed in the First Court of Appeals in Houston, Texas. The brief includes the identification of parties and counsel, indicating Browserweb Media Agency as the appellant, represented by Mark Burke, and Maxus Energy Corporation as the appellee, represented by J. Benjamin Bireley of Gibbs & Bruns LLP.

The table of contents outlines key sections, including the statement of the case, issues presented, statement of facts, and arguments, covering topics such as common law, Uniform Commercial Code (UCC) implications, and various alleged errors including defects in service and jurisdictional issues. The argument section specifically addresses concerns about standing, the validity of the default judgment, and procedural errors that may affect the case's outcome.

A comprehensive table of authorities is provided, citing numerous cases relevant to the legal arguments made in the brief. The document concludes with a prayer for relief, a certificate of service, and certifications of word count and compliance.

The document lists numerous legal cases across various jurisdictions, primarily focusing on Texas appellate decisions, along with references to U.S. Supreme Court and other state court rulings. Key cases include Hamilton Partners Limited v. Singer, Heintz v. Jenkins, and significant Texas decisions such as Ins. Co. of State of Pa. v. Lejeune and Tex. Ass'n of Bus. v. Tex. Air Control Bd. The cases cover a range of legal issues, potentially including contract disputes, tort claims, and environmental law, as evidenced by the mention of a case involving the New Jersey Department of Environmental Protection. The citations are presented in a standard format and indicate the court and year of the decisions, highlighting the legal precedents relevant to the topics discussed. The document serves as a comprehensive reference list for legal practitioners and researchers examining these cases and their implications in legal contexts.

The case involves the Appellees and their attorneys in a lawsuit concerning debt collection in Texas, specifically under the Fair Debt Collection Practices Act (FDCPA) and the Federal Truth in Lending Act. The Appellant claims there is no valid citation or return of service as required by Texas law, as the only document on record reflects the Appellant's rejection of the offer to contract under the Truth in Lending Act and UCC 1-308. The Appellant received lawsuit documents left at his residence by a Sheriff Officer, which he picked up and subsequently took to a Notary Public to formally reject the contract offer on November 10, 2014. This notarized rejection is the sole document filed with the court, indicating that the Appellant does not consent to the proceedings.

Additionally, there is a concern regarding the validity of service. The court records show a "Served" date of November 8, 2014, but lack a signed citation confirming that the service was accepted by the Appellees. The absence of a valid return or citation means that the service is defective, rendering any default judgment void under Texas law.

The dispute centers on a breach of contract claim by Maxus against Browserweb, wherein Maxus allegedly failed to pay for services rendered and unlawfully terminated the contract by hiring another agency without notice. Evidence was presented during arbitration that supported Browserweb's claims of breach.

Maxus quickly escalated legal actions against Browserweb, despite efforts by Mark Burke to resolve disputes amicably. Maxus's attorneys accrued $12,982.87 in fees without receiving any payments, indicating they may be operating on a contingency fee basis, focusing on winning and collecting rather than the impact on Browserweb, a business with no prior litigation history. In contrast, Maxus and its affiliates have a history of legal troubles. Browserweb's claims about Maxus relating to a significant pollution lawsuit were deemed slanderous by Maxus, despite being publicly accessible information.

James McConn served as the arbitrator in this case but exhibited bias, leading to concerns from both parties about the validity of his ruling. Browserweb had previously faced challenges in appointing an impartial arbitrator and ultimately accepted McConn, chosen by Maxus's attorney, to expedite proceedings. The arbitration included an order prohibiting Browserweb and its CEO from disparaging Maxus and its affiliates in the future, which McConn refused to modify despite Browserweb's objections. This ruling raises First Amendment concerns, as injunctions in defamation cases are historically deemed unconstitutional, with no precedent supporting such a restraint, as noted by legal expert Erwin Chemerinsky.

Several state courts historically recognized that injunctions against defamatory speech violate constitutional protections, predating the U.S. Supreme Court's ruling in Near v. Minnesota. Notable cases include Life Ass’n of Am. v. Boogher, State v. Judge of Civil Dist. Court, and Dailey v. Superior Court, which established that equity lacks jurisdiction to enjoin defamation in the absence of statutory authority. Several federal cases further reinforce this principle, asserting a defendant's right to a jury trial to determine the truth of the claims. In the context of arbitration, the Appellees point to FAA rules regarding arbitrator impartiality, misconduct, and jurisdiction as relevant to their appeal against an arbitration award made by the AAA. However, federal procedural rules are not applicable in Texas courts, even when the FAA is invoked, as established in Jack B. Anglin Co. Inc. v. Tipps. The Appellant argues that the AAA award is unenforceable due to bias and unconstitutional orders. Judicial review of arbitration awards, while generally limited, allows for vacating an award if it results from a manifest disregard of the law or fails to resolve the issues raised by the parties adequately, as illustrated by various court precedents. An arbitration award may be deemed indefinite or nonfinal if it does not clarify the rights and obligations of the parties or creates further disputes.

An arbitration award can be vacated if it is made in "manifest disregard of the law," as established by Wachovia Securities, LLC v. Brand, 671 F.3d 472 (4th Cir. 2012), thereby aligning the Fourth Circuit with several other circuits that uphold this standard. The arbitration proceedings were criticized for being controversial and improperly conducted, with the arbitrator refusing to amend an order despite requests. Browserweb is appealing in the First Court of Appeals, citing the absence of a critical Citation from the Clerk’s Record as a key issue. The lower court is also deemed to have acted without jurisdiction, violating Texas Law, which led to an unlawful summary judgment against Browserweb. 

The Appellant argues that the lower court disregarded their rights under the Uniform Commercial Code (UCC) and failed to acknowledge the validity of UCC provisions 1-308 and 1-103. The Appellant asserts their right to reserve against being compelled to perform under any unknowingly entered contracts, emphasizing compliance with procedural timelines. The Appellant did not attend the court hearing to avoid granting the court jurisdiction, highlighting that Texas courts have historically ruled that any significant deviation from citation service requirements invalidates a default judgment. Key cases supporting this doctrine include Wilson v. Dunn and Williams v. Williams, which reinforce that improper service of process renders the court's actions ineffective.

A default judgment cannot be assumed valid regarding the issuance, service, or return of citation without clear proof. All essential facts must be explicitly stated in the return, which, alongside the citation, must not rely on external information for clarity. Strict compliance with the Texas Rules of Civil Procedure is required; otherwise, service of process is deemed invalid. Actual notice or receipt of suit documents does not substitute for proper service. Jurisdiction hinges on compliant service, and any default judgment lacking such service is void, as the court lacks in personam jurisdiction over the defendant. Defective service can be challenged for the first time on appeal. Under Texas Rule of Civil Procedure 107, the return must confirm service, detail how it was executed, and be signed by the serving officer or an authorized individual, with any such return needing verification to be valid.

The manner of service must be explicitly detailed in the return, demonstrating strict adherence to relevant rules and statutes. Case law indicates that service can be rendered ineffective by defects in the citation, such as lack of verification (Seib v. Bekker) or incorrect identification of the defendant (Faggett v. Hargrove). Once an appeal is initiated, citations cannot be amended (Zaragoza v. De La Paz Morales). In this instance, there is no return of service in the Clerk’s Record; instead, the Appellant merely found papers left at his door, which were not properly served as he was not home. The Appellant attempted to invoke common law rights following the discovery of these papers, but this action does not constitute valid service. Texas law mandates that a return of service must be filed for at least ten days before a default judgment can be issued, and since no valid return or citation exists, the default judgment should be set aside. Premature default judgments may also be reversed if the requisite time frame is not observed, as illustrated by several case precedents (e.g., Livanos v. Livanos, Webb v. Oberkampf Supply). Defective returns further invalidate service attempts, as seen in Hubicki v. Festina, where a return receipt was missing, and Inv. Ideas, Inc. v. Ellkay, LLC, where an unverified return did not comply with procedural rules. The Appellant has not received any documentation from the lower court, and the Clerk’s record does not contain the required return, which was part of a request for missing documents that was denied.

In Webb v. Oberkampf Supply of Lubbock, Inc., the court highlighted procedural errors affecting jurisdiction and standing. The return of service was incomplete, lacking necessary signatures, which raised a question about the validity of the default judgment. The Clerk’s Record was found to be incomplete, missing essential documents like the executed Citation. Citing precedents, the court reiterated that a default judgment cannot be upheld if the record does not demonstrate proper service, as seen in cases like Ramirez v. Consolidated HGM Corp. and World Envtl. L.L.C. v. Wolfpack Envtl. L.L.C. 

The concept of subject-matter jurisdiction was emphasized, noting that a plea to the jurisdiction questions whether a court has the authority to hear a specific claim. Jurisdiction is strictly a legal question, as established in cases such as City of Houston v. Williams and Bland Indep. Sch. Dist. v. Blue. Furthermore, the excerpt addressed the importance of standing, which is essential for jurisdiction and cannot be waived. A party must have either statutory or common law authority to bring a claim, and the court may evaluate standing at any point, including sua sponte. The lower court's subsequent actions following the notice from the Appellant were deemed irrelevant to the appellate case.

The hearing and judgment are deemed void due to lack of jurisdiction and standing. A trial court errs in granting a default judgment if an answer has been filed by the defendant, rendering such a judgment void, as established in Jefferies v. Davis and Davis v. Jefferies. Additionally, a certificate of service confirms that a true and correct copy of the document was sent via email on May 4, 2015, to J. Benjamin Bireley at Gibbs Bruns, L.L.P. A certificate of compliance states that the Appellant's Brief contains 6,600 words and adheres to TEX. R. APP. P. 9.4 regarding formatting, relying on the word count from the software used.