Mark J. Healey v. Edwin N. Healey

ACCEPTED
12-15-00047-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/21/2015 3:54:00 PM
Pam Estes
CLERK

No. 12-15-00047-CV

FILED IN
IN THE COURT OF APPEALS 12th COURT OF APPEALS
TYLER, TEXAS
FOR THE TWELFTH JUDICIAL DISTRICT
10/21/2015 3:54:00 PM
TYLER, TEXAS PAM ESTES
Clerk

MARK J. HEALEY
APPELLANT

V.
EDWIN N. HEALEY
APPELLEE

Appealed from the 3rd Judicial District Court
Henderson County, Texas
Cause No. 2014C-0638, the Honorable Mark Calhoon, Presiding

APPELLEE’S BRIEF

Jennifer L. Lovelace
Texas Bar No. 24051110
jlovelace@lovelacekillen.com
Koy R. Killen
Texas Bar No. 24032628
kkillen@lovelacekillen.com
104 South Main Street
Burleson, Texas 76028
Tel. (817) 447-0053
Fax. (817) 447-0052

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT NOT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

1. Mark J. Healey Appellant

2. Mark J. Healey, Pro Se Appellant’s Trial Counsel

3. Steve Stark Appellant’s Appellate
Stark & Groom, LLP Counsel
110 East Corsicana Street
Athens, Texas 75751
4. Edwin N. Healey Appellee

5. Koy R. Killen Appellee’s Trial Counsel
Clinton W. Dennis
Lovelace Killen, P.L.L.C.
104 S. Main
Burleson, Texas 76028
6. Jennifer L. Lovelace Appellee’s Appellate Counsel
Koy R. Killen
Lovelace Killen, P.L.L.C.
104 S. Main
Burleson, Texas 76028

ii
 TABLE OF CONTENTS

PAGE(S)

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ..................................................................................... iii-vi

INDEX OF AUTHORITIES................................................................................ vii-x

STATEMENT OF THE CASE ................................................................................ xi

ISSUES PRESENTED...................................................................................... xii-xiii

1. When a defendant files a special appearance, he must strictly comply
with Texas Rule of Civil Procedure 120a, which requires him to file a
sworn motion and adhere to the due order of hearings ...................... xii

A. When a party does not answer subject to his special appearance
and never sets his special appearance for hearing, the trial court
does not err in granting a default judgment against him,
especially if the specially appearing defendant requested other
relief from the trial court .......................................................... xii

B. Even if a specially appearing defendant sets his special
appearance for hearing, which did not occur in this case, an
insufficient jurat does not strictly comply with Rule 120a’s
requirement that the motion be sworn ..................................... xii
C. A specially appearing defendant does not preserve his
complaint for appeal if he does not first secure a ruling from the
trial court .................................................................................. xii

2. When a defendant has not answered or appeared, he is not entitled to
notice that the plaintiff filed a motion for default judgment. When
damages are liquidated, a hearing is not required before the court rules
on the motion for default judgment. A non-answering defendant who
appears in a lawsuit after the plaintiff filed a motion for default
judgment on liquidated damages is not entitled to notice related to the
default judgment ................................................................................. xii

iii
 3. When a special appearance does not strictly comply with Rule 120a’s
requirements, it constitutes a general appearance. A general
appearance is not sufficient on its own to avoid default judgment and
requires an answer. A default judgment is proper against a specially
appearing defendant who does not strictly comply with Rule 120a’s
requirements, did not file a timely answer, and failed to file an answer
before the rendition of the default judgment ...................................... xii

4. If a defendant files a motion for new trial after a default judgment is
taken against him, it is his burden to show, among other things, that
his failure to answer was not intentional or the result of conscious
indifference. If mistake of the law can constitute conscious
indifference, and the record shows that the attorney-defendant knew
that his answer was past due but deliberately did not file it, the
defendant does not meet his burden to show that his failure to answer
was not the result of conscious indifference ................................ xii-xiii

5. A trial court has wide discretion in severing a claim from a lawsuit
........................................................................................................... xiii

A. An appellate court should not reverse and remand a trial court’s
ruling on a severance once the severed and original claims have
reached final judgment, rendering the issue moot .................. xiii

B. An appellant has not preserved error on the issue of severance if
he did not complain about the severance to the trial court ......xiv

C. Because a trial court can sever claims of indivisible injury
between multiple defendants, an appellate court should not
reverse and remand a trial court’s ruling on severance if the
appellant has not shown that the trial court’s severance was
reasonably calculated to cause and probably did cause the
rendition of an improper judgment ......................................... xiii

INTRODUCTION ................................................................................................. 1-2

STATEMENT OF FACTS .................................................................................... 2-3

SUMMARY OF THE ARGUMENT .................................................................... 3-5

iv
ARGUMENT AND AUTHORITY ........................................................................... 5

I. STANDARDS OF REVIEW AND BURDENS OF PROOF ........................................... 5

A. SPECIAL APPEARANCE ............................................................................ 5

B. DEFAULT JUDGMENT .............................................................................. 6

C. MOTION FOR NEW TRIAL........................................................................ 6

D. SEVERANCE ............................................................................................ 7

II. THE TRIAL COURT DID NOT ERR IN RULING ON THE DEFAULT JUDGMENT
BEFORE THE SPECIAL APPEARANCE .................................................................. 7

A. MARK’S FAILURE TO ENSURE THE DUE ORDER OF HEARINGS WAIVED
HIS SPECIAL APPEARANCE ............................................................... 7-10

B. MARK’S SPECIAL APPEARANCE WAS INVALID ............................... 10-11

C. MARK’S COMPLAINTS ABOUT THE SPECIAL APPEARANCE ARE NOT
PRESERVED FOR APPEAL BECAUSE THE TRIAL COURT DID NOT RULE
ON IT .............................................................................................. 11-13

III. THE TRIAL COURT PROPERLY RENDERED DEFAULT JUDGMENT .................... 13

A. BECAUSE OF THE TIMING OF THE FILINGS, MARK WAS NOT ENTITLED
TO NOTICE OF THE DEFAULT JUDGMENT....................................... 13-15

B. THE DEFAULT JUDGMENT WAS PROPER BECAUSE MARK’S IMPROPERLY
FILED SPECIAL APPEARANCE WAS AT MOST A GENERAL APPEARANCE
WITHOUT AN ANSWER ................................................................... 15-17

IV. MARK DID NOT PRESENT THE TRIAL COURT WITH COMPETENT EVIDENCE TO
SUPPORT HIS MOTION FOR NEW TRIAL .................................................... 17-20

V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION OR OTHERWISE COMMIT
HARMFUL ERROR IN SEVERING THE DEFAULT JUDGMENT ............................. 20

v
 A. THE TRIAL COURT HAS WIDE DISCRETION IN SEVERING A CLAIM
....................................................................................................... 20-21

B. THIS COURT SHOULD NOT REVERSE AND REMAND THE ORDER OF
SEVERANCE BECAUSE IT BECAME MOOT WITH THE FINAL JUDGMENT
IN THE ORIGINAL MATTER ............................................................. 21-22

C. MARK DID NOT PRESERVE ERROR BY TIMELY OBJECTING TO THE
SEVERANCE .................................................................................... 22-23

D. THE TRIAL COURT DID NOT ERR IN SEVERING THE DEFAULT
JUDGMENT, BUT IF IT DID, SUCH ERROR IS HARMLESS ................. 23-25

CONCLUSION AND PRAYER ....................................................................... 25-26

CERTIFICATE OF SERVICE ................................................................................ 27

CERTIFICATE OF COMPLIANCE ....................................................................... 27

vi
 INDEX OF AUTHORITIES

CASES PAGE(S)

Abramowitz v. Miller,
649 S.W.2d 339 (Tex. App.—Tyler 1983, no writ) ................................10, 15

Bank One, Tex., N.A. v. Moody,
830 S.W.2d 81(Tex. 1992) .............................................................................. 6

BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002) (factual findings for legal and factual sufficiency
and legal conclusions de novo) ........................................................................ 5

Boyd v. Kobierowski,
283 S.W.3d 19 (Tex. App.—San Antonio 2009, no pet.) ............................. 16

Bruneio v. Bruneio,
890 S.W.2d 150 (Tex. App.—Corpus Christi 1994, no writ) ........................ 8

Butler v. Butler,
577 S.W.2d 501(Tex. Civ. App.—Texarkana 1978)..................................... 16

Cappadonna Elec. Mgmt. v. Cameron County,
180 S.W.3d 364 (Tex. App.—Corpus Christi 2005, no pet.) ........................ 21

Casino Magic Corp. v. King,
43 S.W.3d 14 (Tex. App.—Dallas 2001, pet. denied) .................................. 10

Continental Carbon Co. v. Sea-Land Serv.,
27 S.W.3d 184 (Tex. App.—Dallas 2000, pet. denied) ................................ 13

Craddock v. Sunshine Bus Lines, Inc.
133 S.W.2d 124 (1939).............................................................................. 6, 17

Director, State Employees Workers’ Compensation Div. v. Evans,
889 S.W.2d 266 (Tex. 1994) ...............................................................6, 17, 18

Dodd v. Savino,
426 S.W.3d 275 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ............... 18

vii
Dolgencorp v. Lerma,
288 S.W.3d 922 (Tex. 2009) ......................................................................... 13

Exito Elecs. Co. v. Trejo,
142 S.W.3d 302 (Tex. 2004) (per curiam) (waiver of jurisdiction reviewed
de novo) ..................................................................................................... 5, 15

Fid. & Guar. Ins. co. v. Drewery Const. Co.,
186 S.W. 3d 571 Tex. 2006) (per curiam) ..................................................... 18

Ford Motor Co. v. Nowak,
638 S.W.2d 582 (Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.) .......... 12

Gen. Elec. Capital Auto Fin. Leasing Servs., Inc. v. Stanfield,
71 S.W.3d 351 (Tex. App.—Tyler 2001, pet. denied) .................................... 6

Global Paragon Dallas, LLC v. SMB Realty, LLC,
448 S.W.3d 607 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ................. 8

Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co.,
793 S.W. 2d 652 (Tex. 1990) .......................................................................... 7

Johnson v. Edmonds,
712 S.W.2d 651 (Tex. App.—Fort Worth 1986, no writ) ............................. 18

Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199 (Tex. 1985) ........................................................................... 5

Kelly v. Gen. Interior Const., Inc.,
301 S.W.3d 653 (Tex. 2010) ......................................................................... 11

Landry v. Daigrepont,
35 S.W.3d 265 (Tex. App.—Corpus Christi 2000, no pet.) ............................ 9

LBL Oil Co. v. International Power Servs.,
777 S.W.2d 390 (Tex. 1989) ......................................................................... 13

Levine v. Shackelford, Melton & McKinley, L.L.P.,
248 S.W.3d 166 (Tex. 2008) (per curiam) .................................................... 18

viii
Liberty Mut. Fire Ins. Co. v. Ybarra,
751 S.W.2d 615 (Tex. App.—El Paso 1988, no writ) .............................17, 18

Long v. McDermott,
813 S.W.2d 622 (Tex. App.—Houston [1st Dist..] 1991, no writ) ................ 13

McGuire v. Commercial Union Ins. Co.,
431 S.W.2d 347 (Tex. 1968) ......................................................................... 20

McKanna v. Edgar,
388 S.W.2d 927 (Tex. 1965) ........................................................................... 6

Morgan v. Compugraphic Corp.,
675 S.W.2d 729 (Tex. 1984) ..................................................................... 7, 23

Novosad v. Brian K. Cunningham, P.C.,
38 S.W.3d 767 (Tex. App.—Houston [14th Dist.] 2001, no pet) ......13, 14, 18

Pierce v. Reynolds,
329 S.W.2d 76 (Tex. 1959) ........................................................................... 22

Prosperous Mar. Corp. v. Farwah,
189 S.W.3d 389 (Tex. App.—Beaumont 2006, no pet.) ............................... 10

Puri v. Mansulkhani,
973 S.W.2d 701 (Tex. App.—Houston [14th Dist.] 1998, no pet.) ................. 9

Sabine Offshore Serv. v. City of Port Arthur,
595 S.W.2d 840, 841 (Tex. 1979) ................................................................. 22

Saxer v. Nash Phillips-Copus Co. Real Estate,
678 S.W.2d 736 (Tex. App.—Tyler 1984, writ ref’d n.r.e.) ...................20, 21

Seeley v. Seeley,
690 S.W.2d 626 (Tex. App.—Austin 1985, no writ) .................................... 15

Smith v. Sanderson,
12-03-00137-CV, 2004 WL 2422257, at *3 (Tex. App.—Tyler Oct. 29,
2004, no pet.) ................................................................................................. 21

ix
Steve Tyrell Prods., Inc. v. Ray,
674 S.W.2d 430 (Tex. App.—Austin 1984, no writ) ................................ 8, 12

Von Briesen, Burtell & Roper v. French,
78 S.W.3d 570 (Tex. App.—Amarillo 2002, pet. denied) ............................ 15

Webb v. Oberkampf Supply of Lubbock, Inc.,
831 S.W.2d 61 (Tex. App.—Amarillo 1992, no pet.) ..................................... 6

Williams v. Williams,
537 S.W.2d 107 (Tex. Civ. App.—Tyler 1976, no writ) .......................... 9, 11

Womack v. Berry,
291 S.W.2d 677 (Tex. 1956) ........................................................................... 7

RULES

TEX. R. CIV. P. 41 ..................................................................................................... 20

TEX. R. CIV. P. 120a ............................................................................................. 9, 15

TEX. R. CIV. P. 120a(1)............................................................................................. 10

TEX. R. CIV. P. 120a(2)............................................................................................... 7

TEX. R. CIV. P. 239 ................................................................................................... 13

TEX. R. CIV. P. 241 ................................................................................................... 14

x
 STATEMENT OF THE CASE (RESTATED)

Nature of the Appellee Edwin N. Healey (“Bud”) filed suit against his three sons,
Case including Appellant Mark Healey (“Mark”), for improperly holding
$186,620.99 of his funds (C.R. 321-29)1. Mark alleges that the trial
court improperly granted a default judgment against him and
complains of other alleged procedural defects. Thus, the substantive
issues involved in Bud’s lawsuit are not before this Court.

Course of Bud’s suit originated in Tarrant County but that trial court
Proceedings transferred the case to Henderson County (C.R. 9).
And Trial
Court's Bud served Mark with citation and the First Amended Petition on
Disposition November 21, 2013 (C.R. 374). Mark’s deadline to answer was
December 16, 2013 (C.R. 374, 386). As of November 11, 2014,
Mark, an attorney, had not answered the lawsuit and Bud filed his
Motion for Default Judgment (C.R. 374-78; R.R. 11:10-12).

On November 20, 2014, Mark filed a special appearance (C.R. 384-
85). Mark did not file an answer subject to his special appearance.
See id. Mark failed to set his special appearance for hearing or
otherwise timely call it to the trial court’s attention (C.R. 390-95;
R.R.6:23-25; 10:16-19).

On November 25, 2014, the trial court entered a default judgment
against Mark (C.R. 386-87). Mark filed a motion for new trial on
December 16, 2014 (C.R. 390-95). Later, on December 18, 2014,
Mark finally answered the lawsuit (C.R. 396-99). On January 22,
2015, the trial court heard, considered, and denied Mark’s motion
for new trial (R.R. 1:20; 21:25-22:2). On January 27, 2015, the trial
court severed the judgment against Mark, allowing it to become
final (the “severed matter”) (C.R. 434-35). On June 9, 2015, the un-
severed portion of the original case went to a jury trial and final
judgment was entered against the other two defendants (the
“original matter”) (See Appx. 1).
1
References to the Clerk’s Record will be designated (C.R. __) with the page number from the
Clerk’s Record appearing in the blank. References to the Reporter’s Record will be designated
(R.R. __:__), with the page number appearing in the first blank and line number appearing in the
second. All references to the Reporter’s Record are to the Motion for New Trial Transcript
unless otherwise noted.

xi
 ISSUES PRESENTED (RESTATED)

1. When a defendant files a special appearance, he must strictly comply
with Texas Rule of Civil Procedure 120a, which requires him to file a
sworn motion and adhere to the due order of hearings.

A. When a party does not answer subject to his special appearance
and never sets his special appearance for hearing, the trial court
does not err in granting a default judgment against him,
especially if the specially appearing defendant requested other
relief from the trial court.

B. Even if a specially appearing defendant sets his special
appearance for hearing, which did not occur in this case, an
insufficient jurat does not strictly comply with Rule 120a’s
requirement that the motion be sworn.

C. A specially appearing defendant does not preserve his
complaint for appeal if he does not first secure a ruling from the
trial court.
2. When a defendant has not answered or appeared, he is not entitled to
notice that the plaintiff filed a motion for default judgment. When
damages are liquidated, a hearing is not required before the court rules
on the motion for default judgment. A non-answering defendant who
appears in a lawsuit after the plaintiff filed a motion for default
judgment on liquidated damages is not entitled to notice related to the
default judgment.
3. When a special appearance does not strictly comply with Rule 120a’s
requirements, it constitutes a general appearance. A general
appearance is not sufficient on its own to avoid default judgment and
requires an answer. A default judgment is proper against a specially
appearing defendant who does not strictly comply with Rule 120a’s
requirements, did not file a timely answer, and failed to file an answer
before the rendition of the default judgment.

4. If a defendant files a motion for new trial after a default judgment is
taken against him, it is his burden to show, among other things, that
his failure to answer was not intentional or the result of conscious
indifference. If mistake of the law can constitute conscious

xii
 indifference, and the record shows that the attorney-defendant knew
that his answer was past due but deliberately did not file it, the
defendant does not meet his burden to show that his failure to answer
was not the result of conscious indifference.

5. A trial court has wide discretion in severing a claim from a lawsuit.
A. An appellate court should not reverse and remand a trial court’s
ruling on a severance once the severed and original claims have
reached final judgment, rendering the issue moot.

B. An appellant has not preserved error on the issue of severance if
he did not complain about the severance to the trial court.

C. Because a trial court can sever claims of indivisible injury
between multiple defendants, an appellate court should not
reverse and remand a trial court’s ruling on severance if the
appellant has not shown that the trial court’s severance was
reasonably calculated to cause and probably did cause the
rendition of an improper judgment.

xiii
 INTRODUCTION

Appellant Mark Healey (“Mark”) appeals a default judgment that the trial

court granted against him, which was later severed from the original lawsuit that

Appellee Edwin N. Healey (“Bud”) also filed against other defendants. Contrary

to Mark’s arguments on appeal, the trial court did not err in granting and severing

the default judgment about which Mark complains. To the contrary, it was because

of Mark’s own failings that the trial court granted and severed the default

judgment.

Despite his knowledge that his answer was past due by almost a year, Mark,

who is an attorney, failed to answer the lawsuit until almost a month after default

judgment was entered against him. Although Mark filed a special appearance, he

did so without an answer subject thereto, failed to set it for hearing, seek a ruling

on it, or timely bring it to the trial court’s attention. Mark’s special appearance

was not properly sworn to, and he did not complain about the severance until after

it became moot by final judgments entered in both the severed and original

lawsuits. Mark wholly failed to meet his burden to show the trial court that it

should have granted a new trial because his failure to answer the lawsuit was not

the result of intent or conscious indifference. Finally, Mark did not preserve error

for the appeal by securing a ruling on his special appearance and timely objecting

to the severance. Accordingly, this Court must affirm the trial court’s default

1
judgment and severance order.

STATEMENT OF THE FACTS

Appellant Mark Healey (“Mark”) appeals a default judgment granted against

him. Thus, the facts relevant to this appeal are procedural rather than substantive

and the pertinent facts mirror those described in the Course of Proceedings and

Trial Court’s Disposition, but will be restated here for the Court’s convenience.

Appellee Edwin N. Healey (“Bud”) filed suit against his three sons,

including Appellant Mark, for improperly holding $186,620.99 of his funds (C.R.

321-29). Bud’s suit originated in Tarrant County, but that trial court transferred

the case to Henderson County (C.R. 9).

Bud served Mark with citation and the First Amended Petition on November

21, 2013 (C.R. 374). Mark’s deadline to answer was December 16, 2013 (C.R.

374, 386). As of November 11, 2014, Mark, an attorney, had not answered the

lawsuit and Bud filed his Motion for Default Judgment (C.R. 374-78; R.R. 11:10-

12).

On November 20, 2014, Mark filed a special appearance (C.R. 384-85).

Mark did not answer subject to his special appearance. See id. Mark did not set

his special appearance for hearing or otherwise timely call it to the trial court’s

attention (C.R. 390-95; R.R.6:23-25; 10:16-19).

2
 On November 25, 2014, the trial court entered a default judgment against

Mark (C.R. 386-87). Mark filed a motion for new trial on December 16, 2014

(C.R. 390-95). Later, on December 18, 2014, Mark finally answered the lawsuit

(C.R. 396-99). On January 22, 2015, the trial court heard, considered, and denied

Mark’s motion for new trial (R.R. 1:20; 21:25-22:2). On January 27, 2015, the

trial court severed the judgment against Mark, allowing it to become final (the

“severed matter”) (C.R. 434-35). On June 9, 2015, the un-severed portion of the

original case went to a jury trial and final judgment was entered against the other

two defendants (the “original matter”) (See Appx. 1).

SUMMARY OF THE ARGUMENT

Mark cannot succeed on his appeal because he has misstated the law in an

attempt to justify his own failures in this matter.

Instead of answering, Mark filed an improperly sworn special appearance

well past his deadline for answering, and only after Bud filed a Motion for Default

Judgment. Mark failed to set his special appearance for hearing, request a ruling,

or otherwise bring it to the trial court’s attention. Additionally, Mark did not

properly swear to his special appearance; thus, even if he had sought a ruling, as

was his burden to do, the trial court should have and would have denied it as a

matter of law. Mark’s failures with respect to his special appearance waived it and

caused it to be, at most, a general appearance. A general appearance is not enough

3
to prevent rendition of a default judgment once the time for answering has passed;

the defendant must still file an answer.

Because Mark had not appeared in the lawsuit when Bud filed the Motion

for Default Judgment, Bud was not required to serve Mark with notice of it.

Thereafter, because damages were liquidated, which is a finding that Mark has not

challenged on appeal, the trial court was not required to conduct a hearing before

granting the default judgment. Thus, neither Bud nor the trial court was required

to serve Mark with any type of notice before entering the default judgment.

The trial court then severed Bud’s claims against Mark, making the default

judgment final. The trial court has wide discretion in severing claims. Mark did

not appeal the severance of the default judgment against him until long after the

trial court conducted a jury trial and entered a final judgment against the remaining

defendants in the original action, who have not appealed. Thus, Mark’s appeal on

the issue of severance is now moot. Regardless, even if the issue of severance was

not moot, the trial court did not err in severing the default judgment against Mark,

and he has not demonstrated any harmful error to him caused by the severance.

Mark also complains that the trial court should have granted his Motion for

New Trial. Trial courts have broad discretion in granting new trials after default

judgment. It was Mark’s burden to present evidence of the required elements, and

he wholly failed to do so, particularly with respect to his burden to show that his

4
failure to answer was not intentional or the result of conscious indifference.

Finally, Mark did not properly preserve error because he cannot complain to

this Court about the special appearance on which he did not secure a trial court

ruling, and he has further waived any complaint about the severance that he failed

to object to at the trial court level.

ARGUMENT AND AUTHORITY

I. STANDARDS OF REVIEW AND BURDENS OF PROOF

A. SPECIAL APPEARANCE

The standard of review for a special appearance contemplates that the non-

resident defendant set and the trial court ruled on the special appearance.

Generally, the appellate issue is whether the nonresident defendant met his burden

to negate all alleged grounds for personal jurisdiction. See Kawasaki Steel Corp. v.

Middleton, 699 S.W.2d 199, 203 (Tex. 1985). The appellate court should

ordinarily review the trial court’s factual findings for legal and factual sufficiency,

legal conclusions de novo, and waiver of personal jurisdiction de novo. See BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002) (factual

findings for legal and factual sufficiency and legal conclusions de novo); Exito

Elecs. Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex. 2004) (per curiam) (waiver of

jurisdiction reviewed de novo).

5
 B. DEFAULT JUDGMENT

In a direct attack on a default judgment, the question is whether there is a

lack of jurisdiction apparent on the face of the record which would vitiate the trial

court's judgment. See McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex.1965); Webb

v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61, 64 (Tex. App.—Amarillo

1992, no pet.).

C. MOTION FOR NEW TRIAL

A trial court's decision to deny a motion for new trial is reviewed for abuse

of discretion. See Director, State Employees Workers’ Compensation Div. v.

Evans, 889 S.W.2d 266, 268 (Tex. 1994); Gen. Elec. Capital Auto Fin. Leasing

Servs., Inc. v. Stanfield, 71 S.W.3d 351, 356 (Tex. App.—Tyler 2001, pet. denied).

A trial court abuses its discretion in failing to grant a motion for new trial

following a default judgment when the defaulting defendant satisfies all three

elements established in Craddock v. Sunshine Bus Lines, Inc.: (1) the failure of the

defendant to answer before judgment was not intentional, or the result of conscious

indifference on his part, but was due to a mistake or an accident; provided (2) the

motion for a new trial sets up a meritorious defense; and (3) is filed at a time when

the granting thereof will occasion no delay or otherwise work an injury to the

plaintiff. 133 S.W.2d 124 (Tex. 1939). See Evans, 889 S.W.2d at 268; Bank One,

Tex., N.A. v. Moody, 830 S.W.2d 81, 82, 83, 85 (Tex. 1992).

6
 D. SEVERANCE

A trial court has broad discretion in the matter of severance of causes and

the trial court's action thereon will not be disturbed on appeal except for an abuse

of discretion. See Womack v. Berry, 291 S.W.2d 677 (Tex. 1956); Morgan v.

Compugraphic Corp., 675 S.W.2d 729, 734 (Tex. 1984). The appellate court may

not reverse an order granting a severance unless the trial court abused its

discretion. See Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co., 793 S.W.2d 652,

658 (Tex. 1990).

II. THE TRIAL COURT DID NOT ERR IN RULING ON THE DEFAULT
JUDGMENT BEFORE THE SPECIAL APPEARANCE

A. MARK’S FAILURE TO ENSURE THE DUE ORDER OF HEARINGS
WAIVED HIS SPECIAL APPEARANCE

Mark attempts to support his first three issues by arguing that the trial court

erred in not ruling on his special appearance motion before signing the default

judgment. It is true that Rule 120a states “[a]ny motion to challenge the

jurisdiction provided for herein shall be heard and determined before a motion to

transfer venue or any other plea or pleading may be heard.” TEX. R. CIV. P.

120a(2).

The problem with this appellate point, however, is that Mark incorrectly

argues that it is the trial court’s responsibility to set a hearing and rule on the

special appearance before any other motions. Instead, it is the burden of the

7
specially appearing defendant to ask for and secure a hearing on his special

appearance. See Bruneio v. Bruneio, 890 S.W.2d 150, 154 (Tex. App.—Corpus

Christi 1994, no writ). The specially appearing defendant has more than just a due

order of pleading requirement: he has a due order of hearing requirement. See

Global Paragon Dallas, LLC v. SMB Realty, LLC, 448 S.W.3d 607, 611 (Tex.

App.—Houston [14th Dist.] 2014, no pet.). Even if a specially appearing

defendant sets his special appearance for hearing, which Mark did not, he does not

preserve error if the record does not reflect that he called it to the trial court’s

attention or ensured that the hearing took place in accordance with Rule 120a. See

Steve Tyrell Prods., Inc. v. Ray, 674 S.W.2d 430, 436-37 (Tex. App.—Austin

1984, no writ). Simply stated, a defendant waives his special appearance if he does

not secure a timely hearing on it before anything else. See Bruneio, 890 S.W.2d at

154.

In Ray, the defendants arguably requested a hearing with their special

appearance. See Ray, 674 S.W.2d 436-37. The record did not reflect, however,

that they called the request to the trial court’s attention or had a special appearance

hearing. See id. Instead, the record reflected that after they made their special

appearance the defendants requested, obtained, and participated in a hearing on a

motion for new trial, as Mark did in this case. See id. at 437. The appellate court

in Ray held that appellants waived their special appearance by not timely pressing

8
for a hearing. See id. See also Williams v. Williams, 537 S.W.2d 107, 108-09 (Tex.

Civ. App.—Tyler 1976, no writ).

If a nonresident defendant discovers that a default judgment was rendered

before his deadline for filing a motion for new trial, the nonresident defendant can

preserve the due order of pleading while challenging the default judgment by filing

the following documents in order: (1) a special appearance; (2) a motion for new

trial; and (3) an answer. See TEX. R. CIV. P. 120a; Puri v. Mansukhani, 973

S.W.2d 701, 706-07 (Tex. App.—Houston [14th Dist.] 1998, no pet.). However,

the defendant still must obtain a ruling on the special appearance before a ruling on

any other motion:

We hold that [defendant] waived his special appearance and made a
general appearance by presenting argument on the motion for new
trial at the hearing before his special appearance was determined. He
also made a general appearance by approving the order granting the
new trial. The trial court therefore erred by granting the special
appearance.

Landry v. Daigrepont, 35 S.W.3d 265, 267 (Tex. App.—Corpus Christi 2000, no

pet.).

Here, unlike the Ray defendants, Mark never set his special appearance for

hearing. As he admits, he filed his special appearance five days before the trial

court granted the default judgment (C.R. 384-87). Nothing prevented him from

setting the special appearance for hearing or otherwise timely calling it to the trial

court’s attention. And here, like the Ray defendants, Mark requested, obtained and

9
participated in a hearing on his motion for new trial (C.R. 390-95; R.R. 1-23). By

doing so, Mark waived his special appearance.

In short, Mark bases his first three issues on an entirely incorrect legal

argument. It was not the trial court’s error, but Mark’s own inaction that resulted

in the trial court not ruling on the special appearance. As such, Mark cannot

succeed on his first three appellate points for which he relies on this argument.

This Court must affirm the trial court’s judgment on these points.

B. MARK’S SPECIAL APPEARANCE WAS INVALID

In addition to the fact that Mark waived his special appearance, it was

invalid and should not have granted it even if he had set it for hearing.

A special appearance must be made by sworn motion. TEX. R. CIV. P.

120a(1). As stated by Mark in his brief, Rule 120a requires strict compliance. See

Abramowitz v. Miller, 649 S.W.2d 339, 342 (Tex. App.—Tyler 1983, no writ). A

trial court does not err in denying a nonresident's special appearance when he does

not strictly comply with Rule 120a's requirements. See Casino Magic Corp. v.

King, 43 S.W.3d 14, 18 (Tex.App.—Dallas 2001, pet. denied); Prosperous Mar.

Corp. v. Farwah, 189 S.W.3d 389, 392 (Tex. App.—Beaumont 2006, no pet.). If

the special appearance motion is not verified, and no sworn proof attests to the

truth of the statements in the motion, the court should deny the motion. See Casino

Magic, 43 S.W.3d at 18. In Farwah, the specially appearing defendants attached

10
affidavits that verified their own facts, but not those in the special appearance. See

Farwah, 189 S.W.3d at 392. The affidavits did not recite that the allegations

contained in the special appearance were true and correct. See id. The trial court

did not err in denying the unsworn special appearance. See id. at 393. Moreover,

because Bud properly pleaded jurisdiction facts in his petition, it was Mark’s

burden to negate all grounds for personal jurisdiction alleged in the plaintiff’s

petition (C.R. 32-29). See Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653,

658 (Tex. 2010).

Here, Mark’s special appearance contains a jurat, but does not contain any

statement that the allegations contained in the special appearance are true and

correct (C.R. 384-85). Moreover, Mark’s special appearance only contains

minimal legal conclusions that merely recite the elements of a special appearance

and are not sufficient to meet the pleading and proof required of a special

appearance (C.R. 384-85).

Accordingly, the trial court should have denied Mark’s special appearance

even if he had set it for hearing, which he failed to do.

C. MARK’S COMPLAINTS ABOUT THE SPECIAL APPEARANCE
ARE NOT PRESERVED FOR APPEAL BECAUSE THE TRIAL
COURT DID NOT RULE ON IT

Points of error not raised in or acted on by the trial court furnish no basis for

a point of error. See Williams v. Williams, 537 S.W.2d 107, 108-09 (Tex. Civ.

11
App.—Tyler 1976, no writ); Steve Tyrell Productions, Inc. v. Ray, 674 S.W.2d

430, 437 (Tex. App.—Austin 1984, no writ); Ford Motor Co. v. Nowak, 638

S.W.2d 582 (Tex. App.—Corpus Christi 1982, writ ref'd n.r.e.) (appellate court

overruled appellant’s complaint that the trial court did not allow a jury view

because trial court did not rule on either request therefore). To raise a question in

an appellate court, the general rule is that the record must not only show that the

appellant requested relief in the trial court but that the trial court made an adverse

ruling thereon. See Williams, 537 S.W.2d at 109.

In Williams, the appellant complained that the trial court only ordered the

opposing party to submit an inventory, instead of an inventory and appraisement,

as requested. See id. The appellant filed a second motion requesting the court to

order a new inventory and appraisal but the trial court did not rule on the second

motion. See id. Accordingly, the Tyler Court of Appeals overruled the appellant’s

complaint. See id. Similarly in Ray, the record did not show that the trial court

ruled on the appellants’ special appearance. See Ray, 674 S.W.2d at 437. The

appellate court held that the ruling on appellants’ motion for new trial did not

constitute a ruling on their special appearance; thus, error was not preserved and

the appellate court overruled appellants’ point of error. See id.

The situation here is similar to that in Ray. Mark filed but failed to secure a

ruling on a special appearance (C.R. 384-85; R.R. 6:23-25; 14:2-5). Without a

12
ruling, no error is preserved to complain about the court’s disposition of the special

appearance. Accordingly, Mark’s point fails and this Court must overrule his

appeal on this point.

III. THE TRIAL COURT PROPERLY RENDERED DEFAULT JUDGMENT

A. BECAUSE OF THE TIMING OF THE FILINGS, MARK WAS NOT
ENTITLED TO NOTICE OF THE DEFAULT JUDGMENT

A trial court may render a default judgment on the pleadings against a

defendant who has not filed an answer. TEX. R. CIV. P. 239. When a defendant

does not file an answer, all allegations of fact in the plaintiff’s petition except

unliquidated damages are deemed admitted. See Dolgencorp v. Lerma, 288

S.W.3d 922, 930 (Tex. 2009).

If the defendant appeared in the case but did not file an answer, the plaintiff

must give the defendant notice before the court can render the default judgment.

See LBL Oil Co. v. International Power Servs., 777 S.W.2d 390, 390-91 (Tex.

1989). But if the defendant did not answer or appear, the plaintiff is not required

to give the defendant notice before the court renders default judgment. See Long v.

McDermott, 813 S.W.2d 622, 624 (Tex. App.—Houston [1st Dist.] 1991, no writ);

Novosad v. Brian K. Cunningham, P.C., 38 S.W.3d 767, 772-73 (Tex. App.—

Houston [14th Dist.] 2001, no pet.). The defendant received all the notice to which

he was entitled when he was served with process. See Continental Carbon Co. v.

Sea-Land Serv., 27 S.W.3d 184, 189 (Tex. App.—Dallas 2000, pet. denied). And

13
when damages are liquidated, a hearing is not necessary on the motion for default

judgment. See TEX. R. CIV. P. 241; Novosad, 38 S.W.3d at 773.

Here, Bud served Mark with citation and the First Amended Petition on

November 21, 2013 (C.R. 374). Mark’s deadline to answer was December 16,

2013 (C.R. 374, 386). As of November 11, 2014, Mark, an attorney, had not

answered the lawsuit and Bud filed his Motion for Default Judgment (C.R. 374-78;

R.R. 11:10-12). On November 20, 2014, Mark filed a special appearance (C.R.

384-85). Mark did not answer subject to his special appearance. See id.

Thus, Bud had filed his Motion for Default Judgment before Mark appeared

in the suit. Bud was not required to serve Mark with notice of the Motion for

Default Judgment because Mark had not appeared in the suit when Bud filed it.

Nothing requires Bud or the trial court to review their files and serve Mark with a

previously filed Motion for Default Judgment (or any other previously filed

document).

Additionally, Mark’s argument that he was entitled to notice of a “trial

setting” is without merit. Damages were liquidated, a trial court finding that Mark

has not challenged on appeal; therefore the trial court properly granted the default

judgment without a hearing (C.R. 386). See TEX. R. CIV. P. 241; Novosad, 38

S.W.3d at 773. Thus, there was no “trial setting” of which to serve Mark with

notice.

14
 Mark’s arguments as to this point are improper and should be overruled, and

trial court’s default judgment must be affirmed.

B. THE DEFAULT JUDGMENT WAS PROPER BECAUSE MARK’S
IMPROPERLY FILED SPECIAL APPEARANCE WAS AT MOST A
GENERAL APPEARANCE WITHOUT AN ANSWER

A defendant waives his objection to personal jurisdiction if he makes a

general appearance. See Von Briesen, Burtell & Roper v. French, 78 S.W.3d 570,

575 (Tex. App.—Amarillo 2002, pet. denied). Every appearance before judgment

that does not comply with Rule 120a is a general appearance. See TEX. R. CIV. P.

120a; Exito Elecs. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). A party makes a

general appearance when he (1) invokes the trial court’s judgment on any question

other than the court’s jurisdiction; (2) recognizes by his acts that an action is

properly pending; or (3) seeks affirmative action from the court. See Exito Elecs.,

142 S.W.3d at 304. Additionally, an individual who challenges the court's

jurisdiction by filing a special appearance must follow strictly the provisions of

Rule 120a to avoid making a general appearance. See Abramowitz v. Miller, 649

S.W.2d 339, 342 (Tex. App.—Tyler 1983, no writ); Seeley v. Seeley, 690 S.W.2d

626, 627-28 (Tex. App.—Austin 1985, no writ).

An insufficient special appearance that constitutes a general appearance

requires an answer to avoid a default judgment after the deadline for answering:

The fact that appellant turned his special appearance into a general
appearance in this case does not afford appellant additional time

15
 within which to file an answer. Appellant could have filed his answer
along with his sworn special appearance motion under Rule 120a …
and have forestalled the default judgment which was taken by
appellee. Since the court had jurisdiction … the trial court was
authorized to immediately proceed to judgment because no answer
had been filed by appellant and the required time for answering had
elapsed.

Butler v. Butler, 577 S.W.2d 501, 507-08 (Tex. Civ. App.—Texarkana 1978),

dismissed (June 13, 1979). See also Boyd v. Kobierowski, 283 S.W.3d 19, 24

(Tex. App.—San Antonio 2009, no pet.) (“Therefore, without a properly filed

special appearance, Rule 123's presumption of a general appearance applies and

the defendant is subject to a default judgment.”)

Here, for the reasons discussed in more detail in Section II (B), above,

Mark’s special appearance was insufficient. Thus, at most, it constituted a general

appearance without an answer. Bud served Mark with citation and the First

Amended Petition on November 21, 2013 (C.R. 374). Mark’s deadline to answer

was December 16, 2013 (C.R. 374, 386). As of November 11, 2014, almost a year

later, Mark, an attorney, had still had not answered the lawsuit and Bud filed his

Motion for Default Judgment (C.R. 374-78; R.R. 11:10-12). On November 25,

2014, the trial court entered the default judgment (C.R. 386-87). Later, on

December 18, 2014, Mark answered the lawsuit for the first time (C.R. 396-99).

Because Mark did not timely answer, or file any answer before the trial court

rendered the default judgment, the default judgment was proper. This Court must

16
overrule Mark’s point and affirm the trial court’s judgment.

IV. MARK DID NOT PRESENT THE TRIAL COURT WITH COMPETENT
EVIDENCE TO SUPPORT HIS MOTION FOR NEW TRIAL

In his Motion for New Trial, Mark made the same general allegations

concerning the default judgment and special appearance as those he asserts in his

“Brief of Appellant” (C.R. 390-95). Because those arguments have already been

addressed and negated in Sections II and III of this Brief, Bud will not re-assert

them here and re-alleges and incorporates them as if fully set forth in this section.

When a default judgment is rendered against a defendant who had notice of

the suit but did not file an answer, he must prove the three elements from

Craddock, including that the failure to answer was a not intentional or the result of

conscious indifference but was simply due to accident or mistake. See Craddock v.

Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939); Director, State Employees

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). The burden of

proof was on Mark to show that his default was not the result of conscious

indifference. Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 618 (Tex.

App.—El Paso 1988, no writ).

As to this point, Mark only argued that he made a mistake because he

thought that the court would rule on his special appearance before entering default

judgment. In Section II (A) of this Brief, Bud has shown why Mark’s position on

that point is wrong. Moreover, Mark’s position is wrong because mistake about

17
the law can constitute conscious indifference. A defendant’s mistaken belief about

bankruptcy was not enough to reverse default judgment. See Novosad v. Brian K.

Cunningham, P.C., 38 S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2001,

no pet.). Likewise, when a defendant misunderstood citation and thought that he

would get notice of trial, it was not enough to reverse default judgment. See

Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex. App.—Fort Worth 1986, no

writ).

Conscious indifference occurs when “the defendant knew [he] was sued but

did not care.” Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576

(Tex.2006) (per curiam); Dodd v. Savino, 426 S.W.3d 275, 288 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). It involves behavior such as a “pattern of

ignoring deadlines and warnings from the opposing party.” Levine v. Shackelford,

Melton & McKinley, L.L.P., 248 S.W.3d 166, 169 (Tex.2008) (per curiam); Dodd,

426 S.W.3d at 288. The court should look to the knowledge and acts of the

defaulting party to determine whether the failure to answer or appear was

intentional or due to conscious indifference. See Dir., State Emps. Workers' Comp.

Div. v. Evans, 889 S.W.2d 266, 269 (Tex.1994); Dodd, 426 S.W.3d at 288.

Additionally, a defendant’s affidavit containing only general statements without

dates and other verifying information did not disprove conscious indifference. See

Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 617-18 (Tex. App.—El Paso

18
1988, no writ).

Here, Bud served Mark with citation and the First Amended Petition on

November 21, 2013 (C.R. 374). Mark’s deadline to answer was December 16,

2013 (C.R. 374, 386). Mark knew that it was due: he admitted to Bud’s attorney

that it was late and he needed to file it immediately, yet he did not do so (R.R.

11:4-15). As of November 11, 2014, almost a year after his deadline, Mark, an

attorney, had not answered the lawsuit and Bud filed his Motion for Default

Judgment (C.R. 374-78; R.R. 11:10-12). On December 18, 2014, Mark answered

the lawsuit for the first time (C.R. 396-99). This meets the standard of conscious

indifference as discussed in Dodd. Likewise, similar to the Novosad and Johnson

defendants who also misunderstood the law, attorney Mark’s alleged mistake about

the impact of filing but not setting his special appearance motion for hearing is not

enough to overturn the default judgment based upon his properly denied motion for

new trial.

And here, like the Liberty Mutual defendant, Mark’s “sworn” testimony was

insufficient to support the new trial. Mark’s motion for new trial did not contain

any supporting affidavits but only verified the motion itself. The motion did not

contain any dates or other verifying information, but only a general, generic

statement that “Defendant reasonably assumed that having filed his Special

Appearance, the same would be heard and determined by the Court prior to any

19
further action, much less a default judgment” (C.R. 391-92). This is not enough to

require the trial court to grant the motion for new trial and overturn the default

judgment.

Accordingly, the trial court did not abuse its discretion when it overruled

Mark’s motion for new trial. This Court must affirm the trial court’s ruling and

overrule Mark’s appeal on this point.

V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION OR
OTHERWISE COMMIT HARMFUL ERROR IN SEVERING THE DEFAULT
JUDGMENT

A. THE TRIAL COURT HAS WIDE DISCRETION IN SEVERING A
CLAIM

Rule 41 of the Texas Rules of Civil Procedure provides that “[a]ny claim

against a party may be severed and proceeded with separately.” TEX. R. CIV. P.

41. This rule grants the trial court broad discretion in the matter of severance and

consolidation of causes. See Guar. Fed. Sav. Bank v. Horseshoe Operating Co.,

793 S.W.2d 652, 658 (Tex. 1990); McGuire v. Commercial Union Ins. Co., 431

S.W.2d 347 (Tex.1968); Saxer v. Nash Phillips-Copus Co. Real Estate, 678

S.W.2d 736, 739 (Tex. App.—Tyler 1984, writ ref’d n.r.e.). The trial court's

decision to grant a severance will not be reversed unless it has abused its

discretion. See Guar. Fed. Sav. Bank, 793 S.W.2d at 658; Saxer, 678 S.W.2d at

739. A claim is properly severable if (1) the controversy involves more than one

cause of action, (2) the severed claim is one that would be the proper subject of a

20
lawsuit if independently asserted, and (3) the severed claim is not so interwoven

with the remaining action that they involve the same facts and issues. See Guar.

Fed. Sav. Bank, 793 S.W.2d at 658; Saxer, 678 S.W.2d at 739. The controlling

reasons for a severance are to do justice, avoid prejudice and further convenience.

See Guar. Fed. Sav. Bank, 793 S.W.2d at 658.

B. THIS COURT SHOULD NOT REVERSE AND REMAND THE
ORDER OF SEVERANCE BECAUSE IT BECAME MOOT WITH
THE FINAL JUDGMENT IN THE ORIGINAL MATTER

If a trial court abuses its discretion in severing a cause of action, the

appellate court should reverse and remand. See Smith v. Sanderson, 12-03-00137-

CV, 2004 WL 2422257, at *3 (Tex. App.—Tyler Oct. 29, 2004, no pet.)

Once the original and severed matters have been disposed of by final

judgments, any issue concerning severance becomes moot. See Cappadonna Elec.

Mgmt. v. Cameron County, 180 S.W.3d 364, 375 (Tex. App.—Corpus Christi

2005, no pet.). When there is no active controversy, “the decision of an appellate

court would be a mere academic exercise.” Cappadonna Elec. Mgmt., 180 S.W.3d

at 375 (quoting Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex.App.—El Paso 1994,

no writ). When events occur after a judgment to render appellate issues moot, the

court of appeals may not decide them. See id. In Cappadonna the appellants

appealed an order of severance. See id. However, after the severance of one suit,

the parties in the original suit successfully arbitrated their claims to settlement. See

21
id. The appellate court held that “the issue of severance of the [parties’] claims is

rendered moot as it would no longer be possible for this Court to remedy error, if

any, in the order.” Id.

Here, after the trial court severed the default judgment against Mark, it

rendered final judgement after a jury trial in the original matter against the

remaining defendants, who are not parties to this appeal (See Appx. 12). Thus, this

Court must dismiss this point because it is moot. It is no longer possible for this

Court to remedy any alleged error on the severance, if any, because both matters

have reached final judgment and this Court cannot reverse or remand the severance

as it would be required to do (C.R. 386-87; 434-35; Appx. 1). As addressed

earlier, the trial court did not err by severing the judgment against Mark, but even

if it did, there is no appellate remedy for what has become a moot issue.

Accordingly, this Court must dismiss Mark’s point.

C. MARK DID NOT PRESERVE ERROR BY TIMELY OBJECTING TO
THE SEVERANCE
If a defendant does not object to a severance, he may not then complain to

the court of appeals of error in granting the same. Pierce v. Reynolds, 329 S.W.2d

76, 78 (Tex. 1959). The rule against splitting causes of action is a branch of the

broader doctrine of res judicata. See id. This rule is for the benefit of and may be
2
Ordinarily this Court is restricted to the appellate record; however, this Court can consider
documents outside the record for determining its jurisdiction over the case, including whether an
issue is moot. See Sabine Offshore Serv. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.
1979).

22
waived by the defendant. See id. It does not in any way limit the power of a court

to hear and determine several suits instituted by a plaintiff for the recovery of

different parts of a single cause of action. See id.

Here, Mark did not object to the severance at the trial court level. Thus, he

may not complain about it for the first time to this Court. This Court must affirm

the trial court’s severance order.

D. THE TRIAL COURT DID NOT ERR IN SEVERING THE DEFAULT
JUDGMENT, BUT IF IT DID, SUCH ERROR IS HARMLESS

Mark complains that the trial court erred because it cannot sever an

indivisible injury against multiple defendants. This argument is overly simplistic.

As the Texas Supreme Court stated when another defendant made a similar

argument that a cause of action for an indivisible injury cannot be severed among

joint and several liability defendants “[c]ertainly, this is not a hard and fast rule.

Such causes of action have frequently been severed for venue purposes.” Morgan

v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984).

The proceedings and arguments in Morgan are similar to those found here.

Morgan was a personal injury case where the plaintiff sued two defendants, jointly

and severally, under theories of negligence and strict liability. See id. at 730. One

defendant answered, but the other did not and the trial court entered and severed a

default judgment against the non-answering defendant. See id. In deciding that the

severance was proper, the Supreme Court stated that because the plaintiff allegedly

23
suffered an indivisible injury as a result of the tortious acts of two wrongdoers, she

had the option of proceeding to judgment against any one defendant separately or

against all in one suit. See id. at 733. The plaintiff’s suits against each defendant

were separate causes of action that could be separately tried as if they were the

only claim in controversy. See id.at 733-34. Thus, severance was proper. See id.

at 734.

The Supreme Court noted that in many cases, considerations of fairness or

judicial economy may require a trial court not to sever a cause of action brought by

a plaintiff who seeks to impose joint and several liability upon multiple defendants

for indivisible injuries. See id. However, under the facts presented, the trial court

did not abuse its discretion in severing the cause of action between defendants. See

id. Additionally, the Supreme Court held that even if the trial court's severance

was error, it was not an error that was reasonably calculated to cause and probably

did cause the rendition of an improper judgment in the case. Id.

Here, like Morgan, Bud could have proceeded against Mark in an

individual suit. Thus, severance was proper. Moreover, Mark has not

demonstrated, to the trial court or to this Court, that considerations of fairness or

judicial economy required the trial court not to sever the causes of action against

him. Indeed, the opposite is true: severing the causes of action against Mark

encouraged fairness because it permitted the elderly plaintiff who had been

24
defrauded by his children of more than $180,000.00 to begin collection efforts

(R.R. 11:24-12:11). Moreover, the other defendants proceeded to and participated

in a jury trial without requiring Mark’s participation (See Appx. 1). Finally, even

if the trial court erred in severing the claim against Mark, he has not shown that the

error was reasonably calculated to cause and probably did cause the rendition of an

improper judgment in the case. Thus the error, if any, was harmless.

Mark’s argument on this point fails. This Court must affirm the trial court’s

order of severance.

CONCLUSION AND PRAYER

As demonstrated, Mark cannot succeed on his appeal. Mark failed to answer

before his deadline and before the trial court rendered default judgment, therefore

the default judgment is proper and must be affirmed. Because Mark did not file his

fatally insufficient Special Appearance with no accompanying Answer until after

Bud filed the Motion for Default Judgment with liquidated damages, no hearing

was required, and Mark was not entitled to any type of notice before the Default

Judgment was signed.

Mark failed to ensure the due order of hearings and cannot now complain

about the trial court’s failure to rule on his special appearance, which was unsworn

and did not comply with Rule 120a’s requirements. Mark also did not meet his

burden to prove the elements of his motion for new trial after default judgment,

25
especially that his failure to answer was not intentional or the result of conscious

indifference. Mark did not timely object to the order of severance which has now

become moot. Furthermore, Mark has not shown that the order of severance was

in any way improper or that, if it was error, that the error caused any harm.

Accordingly, Edwin N. “Bud” Healey prays that this Court overrule Mark’s

appeal in its entirety, affirm the trial court’s judgment and orders, and for all other

relief, in law or in equity, to which he is entitled.

Respectfully submitted,
LOVELACE KILLEN, P.L.L.C.

By: /s/ Jennifer L. Lovelace
Jennifer L. Lovelace
Texas Bar No. 24051110
jlovelace@lovelacekillen.com
Koy R. Killen
Texas Bar No. 24032628
kkillen@lovelacekillen.com
104 South Main Street
Burleson, Texas 76028
Tel. (817) 447-0053
Fax. (817) 447-0052

ATTORNEYS FOR APPELLEE
EDWIN N. HEALEY

26
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has
been served upon the following counsel of record, via electronic service on
October 21, 2015.
Steve Stark Via Electronic Service
Stark & Groom, LLP
110 East Corsicana Street
Athens, Texas 75751
Attorney for Appellant

/s/ Jennifer L. Lovelace
Jennifer L. Lovelace

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

certifies that the foregoing Appellee’s Brief contains 6,207 words.

/s/ Jennifer L. Lovelace

27
 No. 12-15-00047-CV

IN THE COURT OF APPEALS
FOR THE TWELFTH JUDICIAL DISTRICT
TYLER, TEXAS

MARK J. HEALEY
APPELLANT

V.

EDWIN N. HEALEY
APPELLEE

Appealed from the 3rd Judicial District Court
Henderson County, Texas
Cause No. 2014C-0638, the Honorable Mark Calhoon, Presiding

APPENDIX TO APPELLEE’S BRIEF

Jennifer L. Lovelace
Texas Bar No. 24051110
jlovelace@lovelacekillen.com
Koy R. Killen
Texas Bar No. 24032628
kkillen@lovelacekillen.com
104 South Main Street
Burleson, Texas 76028
Tel. (817) 447-0053
Fax. (817) 447-0052

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT NOT REQUESTED
Appendix 1: Final Judgment

Appendix 2: TEX. R. CIV. P. 41

Appendix 3: TEX. R. CIV. P. 120a

Appendix 4: TEX. R. CIV. P. 239

Appendix 5: TEX. R. CIV. P. 241
APPENDIX 1
APPENDIX 2
APPENDIX 3
APPENDIX 4
APPENDIX 5