ACCEPTED
13-14-00462-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
FILED 3/9/2015 9:07:05 PM
DORIAN RAMIREZ
IN THE 13TH COURT OF APPEALS CLERK
CORPUS CHRISTI
3/9/2015 CAUSE NO. 13-14-462-CV
DORIAN E. RAMIREZ, CLERK
BY JParedes RECEIVED IN
In The 13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
Court of Appeals
3/9/2015 9:07:05 PM
For the DORIAN E. RAMIREZ
Clerk
Thirteenth Appellate District
Corpus Christi, Texas
ALAMO HOME FINANCE and
GONZALEZ FINACIAL HOLDINGS
APPELLANTS
V.
MARIO DURAN and
MARIA DURAN
APPELLEES
APPELLEES' RESPONSIVE BRIEF
TO APPELLANT
ALAMO HOME FINANCE
Francisco J. Rodriguez
LAW OFFICE OF FRANCISCO J. RODRIGUEZ
1111 W. Nolana Ave
McAllen, Texas 78504
Tel: (956) 687-4363
Fax: (956) 687-6415
KEITH C. LIVESAY
LIVESAY LAW OFFICE
BRAZOS SUITES NO. 9
517 West Nolana
McAllen, Texas 78504
(956) 928-0149
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES iv
WAIVER OF ORAL ARGUMENT xiv
STATEMENT OF NATURE OF CASE 2
ISSUES PRESENTED 2
STATEMENT OF FACTS 5
SUMMARY OF ARGUMENT 8
ARGUMENT 9
APPELLANT HAS CLEARLY FAILED
TO PRESERVE ERROR 9
[A] Tax Lender Cannot Switch Horses Misstream 9
[B] Improper Service Complaints Unpreserved 11
[C] Trial Court Never Given Opportunity 17
TAX LENDER CLEARLY NOT ENTITLED
TO NEW TRIAL 19
[A] Alleged Defects in Service Do Not Warrant New Trial 19
[B] Holding Service of Process Improper Unconstitutional 25
[C] New Trials Not Granted Like Valentine Flowers 28
[D] Tax Lender Acted With Conscious Indifference 35
[E] Tax Lender Failed to Set Up Meritorious Defense 41
[F] Tax Lender’s Offers of Equity Insufficient 44
ii
CONCLUSION AND PRAYER 46
CERTIFICATE OF COMPLIANCE 47
CERTIFICATE OF SERVICE 48
iii
TABLE OF AUTHORITIES
Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 769
(Tex. App.--Corpus Christi 2000, no pet.) 33
Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651,
653 (Tex. App.--Beaumont 1990, no writ) 31
Berlanga v. Berlanga, 2012 WL 252497 at 1 (Tex. App.--
Beaumont 2012, no pet.) 16
Boatner v. Providence-Washington Ins. Co., 241 S.W. 136,
140 (Tex. Comm'n App. 1922, judgm't adopted) 10
Brock v. Sutker, 215 S.W.3d 927, 929 (Tex. App.--Dallas
2007, no pet.) 35
Bubba's of San Antonio v. Leyendecker Const., Inc., 2010
WL 2403717 (Tex. App.--San Antonio 2010, no pet.) 16
Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--Corpus
Christi 1996, writ denied) 33
Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.--Dallas
2006, no pet.) 11
Cardenas v. Continental Ins. Co., 960 S.W.2d 401, 404 (Tex.
App.--Corpus Christi 1998, writ denied) 36
Carey Crutcher, Inc. v. Mid Coast Diesel Services, Inc., 725
S.W.2d 500 (Tex. App.--Corpus Christi 1987, no writ) 27
Cisneros v. Regalado Family Ltd. Partnership, 2011 WL
3366345 (Tex. App.--Corpus Christi 2011, no pet.) 17
City of Port Isabel v. Shiba, 976 S.W.2d 856, 859 (Tex.
App.--Corpus Christi 1998, writ denied) 33
Cocke v. Saks, 776 S.W.2d 788, 790 (Tex. App.--Corpus
iv
Christi 1989, writ denied) 29
Columbia Rio Grande Regional Hospital v. Stover, 17 S.W.3d
387, 391 (Tex. App.--Corpus Christi 2000, no writ) 36
Continental Carbon Co. v. Sea-Land Service, Inc., 27 S.W.3d
184, 190 (Tex. App.--Dallas 2000, pet. denied) 33
Cornerstone Alternatives, Inc. v. Patterson Oldsmobile-GMC-
Toyota, Inc., 696 S.W.2d 702 (Tex. App.--Fort Worth 1985,
no writ) 40
Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d
124, 126 (1939) 28
Cross Marine, Inc. v. Lee, 905 S.W.2d 22, 25 (Tex. App.--
Corpus Christi 1995, writ denied) 12
Davis v. Campbell, 572 S.W.2d 660, 662 (Tex. 1978) 10
Dorchester Gas Producing Co. v. Harlow Corp., 743 S.W.2d
243, 257 (Tex. App.--Amarillo 1987, writ denied) 21
Dreisbach v. Reed, 780 S.W.2d 901, 903 (Tex. App.--El Paso
1989, no writ) 38
Dupnik v. Aransas County Navigation District No. 1, 732
S.W.2d 780 (Tex. App.--Corpus Christi 1987, no writ) 28
E.C., Jr. ex rel. Gonzales v. Graydon, 28 S.W.3d 825, 829
(Tex. App.--Corpus Christi 2000, no pet.) 32
Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d
343, 354 (Tex. App.--Corpus Christi 1997), writ denied
per curiam, 989 S.W.2d 360 (Tex. 1998) 31
Equinox Enterprises, Inc. v. Associated Media, Inc., 730
S.W.2d 872, 876 (Tex. App.--Dallas 1987, no writ) 41
v
Executive Tele-Communication Systems v. Buchbaum, 669
S.W.2d 400, 403 (Tex. App.--Dallas 1984, no writ) 34
Faulkner v. Stark, 2004 WL 1698052 at 2 (Tex. App.--
Texarkana 2004, no pet.) 41
First National Bank of Bryan v. Peterson, 709 S.W.2d 276
(Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e) 45
Fluty v. Simmons Co., 835 S.W.2d 664, 667 (Tex. App.--
Dallas 1992, no writ) 17
Fonseca v. County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ.
App.--Corpus Christi 1975, writ ref'd n.r.e.) 33
Genereux v. Raytheon Co., 754 F.3d 51, 53 (1st Cir. 2014) 10
Gillenwaters v. State, 205 S.W.3d 534 (Tex. Cr. App. 2006) 13
Glittenberg v. Hughes, 524 S.W.2d 954, 956 57 (Tex. Civ.
App.--Fort Worth 1975, no writ) 45
Haas v. George, 71 S.W.3d 904, 914 (Tex. App.--Texarkana
2002, no pet.) 35
Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265
(Tex. App.--Texarkana 1992, writ dism'd) 29
Haskins v. Finks, 470 S.W.2d 717, 718 (Tex. Civ. App.--
Eastland 1971, writ ref’d n.r.e.) 43
Heath v. Herron, 732 S.W.2d 748, 752 (Tex. App.--Houston
[14th Dist.] 1987, no writ) 35
Herbert v. Greater Gulf Coast Enterprises, Inc., 915 S.W.2d
866, 871 (Tex. App.--Houston [1st Dist.] 1995, no writ) 19
Herring v. Childers, 2004 WL 1926795 at 8 n. 9 (Tex. App.--
Corpus Christi 2004, pet. denied) 17
vi
Hester v. State, 497 S.W.2d 501, 503 (Tex. Civ. App.--El Paso
1972, writ ref’d n.r.e.) 16
Hicks v. Flores, 900 S.W.2d 504, 506-07 (Tex. App.--Amarillo
1995, no writ) 42
Hines v. Commission for Lawyer Discipline, 28 S.W.3d 697,
701 (Tex. App.--Corpus Christi 2000, no pet.) 32
Hirczy v. Hirczy, 838 S.W.2d 783, 785 (Tex. App.--Corpus
Christi 1992, writ denied) 14
HL Farm Corp. v. Self, 877 S.W.2d 288, 292 (Tex. 1994) 24
Home Owners Funding Corp. of America v. Scheppler, 815
S.W.2d 884 (Tex. App.--Corpus Christi 1991, no writ) 31
Hughes v. Hughes, 407 S.W.2d 14, 16 (Tex. Civ. App.--Waco
1966, no writ) 12
Ikon Office Solutions, Inc. v. Integrity Communications, Ltd.,
2006 WL 1644670 (Tex. App.--Corpus Christi 2006,
no pet.) 23
In re D.M., 244 S.W.3d 397 (Tex. App.--Waco 2007, no pet.) 30
In re Frost Nat. Bank, 103 S.W.3d 647, 649 (Tex. App.--
Corpus Christi 2003, mand. denied) 31
In re J.I.Z., 170 S.W.3d 881, 883 (Tex. App.--Corpus Christi
2005, no pet.) 32
James v. Comm'n for Lawyer Discipline, 310 S.W.3d 586,
594–95 (Tex. App.--Dallas 2010, no pet.) 18
Johnson v. Edmonds, 712 S.W.2d 651, 652-53 (Tex. App.--
Fort Worth 1986, no writ) 38
K & M Tools, Inc. v. Bencon Management and General Contract-
vii
ing Corp., 1997 WL 605097 at 3 (Tex. App.--Houston
[14th Dist.] 1997, writ denied) 43
Kelly v. Brenham Floral Co., 2014 WL 4219448 at 4 (Tex.
App.--Houston [1st Dist.] 2014, no pet.) 29
Kershner v. State Bar of Texas, 879 S.W.2d 343, 347-48 (Tex.
App.--Houston [14th Dist.] 1994, writ denied) 11
Konkel v. Otwell, 65 S.W.3d 183, 187 (Tex. App.--Eastland 2001,
no writ) 38
Kuehnhoefer v. Welch, 893 S.W.2d 689, 694 (Tex. App.--
Texarkana 1995, writ denied) 11
LEJ Development Corp. v. Southwest Bank, 407 S.W.3d 863,
866 (Tex. App.--Fort Worth 2013, no pet.) 19
Liberty Mutual Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 618
(Tex. App.--El Paso 1988, no writ) 28
Lilly v. Tolar, 2002 WL 1926527 at 3 (Tex. App.--Texarkana
2002, pet. denied) 18
Memorial Hospital System v. Fisher Ins. Agency, Inc., 835
S.W.2d 645 (Tex. App.--Houston [14th Dist.] 1992,
no writ) 39
Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 444 (Tex.
App.--Fort Worth 1997, writ denied) 10
Moore v. State, 295 S.W.3d 329, 333 (Tex Cr. App. 2009) 12
Most Worshipful Prince Grand Hall v. Jackson, 732 S.W.2d
407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.) 35
Myan Management Group, L.L.C. v. Adam Sparks Family
Revocable Trust, 292 S.W.3d 750, 753 (Tex. App.--
Dallas 2009, no pet.) 21
viii
Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex.
App.--Corpus Christi 1999, writ denied) 14
Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex.
App.--Waco 1988, no writ) 29
O'Connell v. O'Connell, 843 S.W.2d 212 (Tex. App.--
Texarkana 1992, no writ) 45
Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608,
613 (Tex. App.--Corpus Christi 1996, writ denied) 19
Ovalle v. Ovalle, 604 S.W.2d 526, 528 (Tex. Civ. App.--Waco
1980, no writ) 21
P & H Transp., Inc. v. Robinson, 930 S.W.2d 857 (Tex.
App.--Houston [1s Dist.] 1996, writ denied) 22
Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--
Houston [14th Dist.] 1987, writ ref'd n.r.e.) 20
Pena v. State, 285 S.W.3d 459, 464 (Tex. Cr. App. 2009) 14
Perez v. Cueto, 908 S.W.2d 29, 30 (Tex. App.--Houston [14th
Dist. 1995, no writ) 11
Phifer v. Nacogdoches County Central Appraisal Dist., 45
S.W.3d 159, 173 (Tex. App.--Tyler 2000, pet. denied) 33
Popkowsi v. Gramza, 671 S.W.2d 915 (Tex. App.--Houston
[1st Dist.] 1984, no writ) 20
Portfolio Recovery Associates, LLC v. Talplacido, 2012 WL
204541 at 2 (Tex. App.--Dallas 2012, no pet.) 16
Prasad v. Capital Farm Credit, FLCA, 2013 WL 3877666 at
2 (Tex. App.--Houston [1st Dist.] 2013, no pet.) 15
Prime Prods., Inc. v. SSI Plastics, 97 S.W.3d 631, 637 (Tex.
ix
App.--Houston [1st Dist.] 2002, pet. denied) 42
Reading & Bates Const. Co. v. O'Donnell, 627 S.W.2d 239,
244 (Tex. App.--Corpus Christi 1982, writ ref’d n.r.e.) 32
Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.--Corpus
Christi 1996, no writ) 11
Roberts v. Burkett, 802 S.W.2d 42, 47 (Tex. App.--Corpus
Christi 1990, no writ) 33
Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana
2009, p.d.r. ref'd) 13
Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston
[14th Dist.] 2008, p.d.r. ref'd) 11
Salt Water Resources v. Kirkpatrick & O'Donnell Const. Equip-
ment Co., 694 S.W.2d 122, 123 (Tex. App.--Dallas 1985,
no writ) 43
Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587,
590-91 (Tex. App.--El Paso 2005, no pet.) 40
Siegler v. Williams, 658 S.W.2d 236, 239 (Tex. App.—Houston
[1st Dist.] 1983, no writ) 42
Shamrock Roofing Supply, Inc. v. Mercantile Nat. Bank at
Dallas, 703 S.W.2d 356, 357-58 (Tex. App.--Dallas
1985, no writ) 18
Sharm, Inc. v. Martinez, 900 S.W.2d 777, 782 (Tex. App.--
Corpus Christi 1995, no writ) 39
Southwest Plaza Apts. v. Corpus Christi Brick & Lumber
Co., 528 S.W.2d 885, 887 (Tex. Civ. App.--Corpus
Christi 1975, no writ) 30
State v. $30,660.00, 136 S.W.3d 392, 405 (Tex. App.--
x
Corpus Christi 2005, pet. denied) 35
Stein v. Meachum, 748 S.W.2d 516, 517 (Tex. App.--Dallas
1988, no writ) 29
Stock v. Stock, 702 S.W.2d 713, 715 (Tex. App.--San Antonio
1985, no writ) 41
Stooksbury v. State, 2009 WL 2883518 at 5 (Tex. App.--Waco
2009, p.d.r. ref'd) 30
Sullivan v. University Interscholastic League, 616 S.W.2d 170
(Tex. 1981) 24
Tacon Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc.,
889 S.W.2d 666, 671 (Tex. App.--Houston [14th Dist.]
1994, writ denied) 35
Tallabas v. Wing Chong, 72 S.W.2d 636, 637 (Tex. Civ.
App.--Eastland 1934, no writ) 13
Tex-Hio Partnership v. Garner, 106 S.W.3d 886, 896 (Tex.
App.--Dallas 2003, no pet.) 10
Texas Dep't of Public Safety v. Struve, 79 S.W.3d 796, 801
n. 6 (Tex. App.--Corpus Christi 2002, pet. denied) 35
Texas General Indem. Co. v. McKay, 595 S.W.2d 884, 887
(Tex. Civ. App.--Waco 1980, writ ref’d n.r.e.) 46
Thomas v. Ginter, 2014 WL 3738054 at 4 (Tex. App.--Houston
[1st Dist.] 2014, no pet.) 15
Trinity Universal Ins. Co. v. Brainard, 153 S.W.3d 508, 513
(Tex. App.--Amarillo 2004), modified on other grounds,
216 S.W.3d 809 (Tex. 2006) 11
United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958,
959 (Tex. 1976) 44
xi
Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex. App.--
Houston [1st Dist.] 1993, writ denied) 29
Vaughn Bldg. Corp. v. Austin Co., 620 S.W.2d 678, 683
(Tex. Civ. App.--Dallas 1981), aff'd, 643 S.W.2d 113
(Tex.1982) 10
Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412, 420 (Tex.
App.--Corpus Christi 1999, writ denied) 31
Walder v. State, 85 S.W.3d 824, 827 (Tex. App.--Waco
2002, no p.d.r.) 36
Warren v. Zamarron, 2005 WL 1038822 (Tex. App.--Austin
2005, no pet.) 23
Wates v. Carlock, 1996 WL 603863 at 3-4 (Tex. App.--
Amarillo 1996, writ denied) 42
Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286,
290 (Tex. App.--Dallas 2003, no pet.) 21
White v. Douglas, 569 S.W.2d 635, 637 (Tex. Civ. App.--
Texarkana 1978, no writ) 45
White v. State, 958 S.W.2d 460, 462 (Tex. App.--Waco 1997,
no p.d.r.) 14
Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985) 26
Williams v. Bayview-Realty Associates, 420 S.W.3d 358,
364-65 (Tex. App.--Houston [14th Dist.] 2014, no pet.) 17
Williams v. Khalaf, 802 S.W.2d 651 (Tex. 1990) 43
Williams v. Williams, 150 S.W.3d 436, 443–44 (Tex. App.--
Austin 2004, pet. denied) 19
xii
Wise v. Sands, 739 S.W.2d 731, 734 (Mo. App. 1987) 11
Zimmerman v. Board of Trustees of Ball State University,
940 F.Supp.2d 875, 884 (S.D. Ind. 2013) 10
WAIVER OF ORAL AGUMENT
Tables of authorities possess no value in assisting an appellate
court in deciding a case. The same is true of oral argument. Mosk,
In Defense of Oral Argument, 1 J. APP. PRAC. & PROCESS 25, 29-30
(1999); Aldisert, WINNING ON APPEAL: BETTER BRIEFS AND ORAL
ARGUMENT 294 (NITA rev. ed. 1996). This Court has already reached
this conclusion in this matter, and Appellees agree with this Court’s
conclusion.
xiii
CAUSE NO. 13-14-462-CV
In The
Court of Appeals
For the
Thirteenth Appellate District
Corpus Christi, Texas
ALAMO HOME FINANCE and
GONZALEZ FINACIAL HOLDINGS
APPELLANTS
V.
MARIO DURAN and
MARIA DURAN
APPELLEES
APPELLEES' RESPONSIVE BRIEF
TO APPELLANT
ALAMO HOME FINANCE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES MARIO DURAN and MARIA DURAN, Appellees
in the above styled cause, and file their RESPONSIVE BRIEF TO
APPELLANT ALAMO HOME FINANCE, demonstrating that any
errors with regard to improper service of process have not been
preserved, and that even if the trial court had actually been called
upon to rule, it would correctly denied Appellant's new trial request.
1
STATEMENT OF NATURE OF CASE
Because of the Rio Grande Valley's nose bleed property tax
rates, home owners often need assistance in paying their taxes. A
property tax lender agrees to loan the money, and to purchase
casualty insurance with a portion of loan proceeds. But instead of
purchasing the casualty insurance, the tax lender pocketed this
portion of the loan proceeds. When the home owners suffer a loss
because of Hurricane Dolly, the tax lender is sued, because such
losses should have been covered. The tax lender fails to answer,
and consequently the trial court, 92nd District Court of Hidalgo
County, Texas, Hon. Jaime Tijerina presiding, grants a default
judgment. While the tax lender did file a motion for new trial, its
motion failed to complain of improper service, and failed to provide
an explanation of what the registered agent did with the lawsuit
after its receipt. Furthermore, the trial court never expressly ruled
on the motion. Consequently, the default judgment stands.
Nevertheless, this appeal followed.
ISSUES PRESENTED
Can a litigant change horses midstream?
2
On appeal, is a party restricted to the theories he presented to
the trial court?
On appeal, can a litigant assume an attitude contrary to the
position he assumed before the trial court?
Is preservation of error required in every case?
Is one of the purposes of preservation of error to allow the
opposing party an opportunity to respond or correct a problem?
Can a trial court be held to have abused its discretion, based
on complaints never presented to it?
In order to complain on appeal of the denial of a motion for
new trial, must an express ruling be obtained from the trial court?
Can a trial court be held to have abused its discretion, when it
is never called upon to exercise such discretion?
Does a second motion for new trial, filed more than thirty days
after the default judgment is signed, preserve error?
Does a second motion for new trial, filed 87 days after the
judgment is signed, constitute a nullity?
Does service of process require obeisance to the minutest
detail?
Is a defendant entitled to a new trial based on its registered
3
agent’s violation of federal law?
Can a private process server utilize the United States mails for
service?
Does automatic reversal for improper service of process violate
the United States Constitution?
Does automatic reversal for improper service of process violate
the Texas Constitution?
After default judgments, are new trial granted like flowers on
Valentine’s Day?
Are motions for new trial reviewed for abuse of discretion?
Under abuse of discretion review, does this Court act as the
fact finder and determine the applicable facts?
Is an appellant required to properly brief its complaints when
presenting them to the Court of Appeals?
Does a proper appellant’s brief discuss the standard of review?
If a defaulting defendant blames its agent for his failure to
answer, must it explain why its agent did not act with conscious
indifference and present evidence in support thereof?
In order to demonstrate a meritorious defense sufficient to
warrant a new trial, must the defaulting defendant address all
4
causes of action alleged by the plaintiff?
Can a default defendant establish a meritorious defense based
on conclusory evidence?
In order to be entitled to a new trial, must a defaulting
defendant offer to do equity?
In order to be entitled to a new trial, must a defaulting
defendant offer to reimburse the plaintiff?
In order to be entitled to a new trial, must a defaulting
defendant offer to go to trial?
STATEMENT OF FACTS
Mario and Maria Duran, Appellees in this matter, own four
properties in La Feria, Texas. Because of nose bleed assessments
and tax rates which are all too common in the Rio Grande Valley,
they encountered difficulty in paying their property taxes. As a
result, they contacted Alamo Home Finance, Appellant herein, to
obtain financial assistance. After some negotiations, a deal was
reached: Appellant (hereinafter referred to as “Tax Lender”) would
pay the alpine property taxes, in exchange from Appellees’ promise
to repay with interest and insurance charges.
5
One issue which often arises whenever money is borrowed is
insurance. While it charged Appellees (hereinafter referred to as
“Home Owners”) for such insurance, Tax Lender failed to purchase
it but instead pocketed the money. While this would not have
caused a loss if the Rio Grande Valley skies remained sunny, living
here during the summer for any period of time proves the opposite:
Hurricane Dolly ripped through South Texas, substantially
damaging the homes in question. C.R. 16; Ex. 3; Ex. 4; Ex. 5; Ex.
6.
Seeking to repair their properties, Home Owners filed
insurance claims under the insurance policies Tax Lender had
allegedly purchased. However, it was only then that Tax Lender’s
misconduct became apparent: the insurance company refused to
pay, because Tax Lender had pocketed the money instead of
purchasing the policies it promised. C.R. 18. Obviously, Home
Owners suffered economic losses; their homes required substantial
repairs, Ex. 3; Ex. 4; Ex. 5; Ex. 6, and bills have gone unpaid (and
raising the ugly specter of foreclosure). C.R. 22, 23. But more
importantly, Home Owners suffered substantial mental distress,
causing Mr. Duran to walk at night and become physically
6
aggressive with his family. C.R. 18, 19.
Initially, Home Owners only filed suit against Gonzalez
Financial Holdings.1 Cl.R. 22-29; 1 Supp. Cl.R. 38-47. Sub-
sequently, Home Owners added this Tax Lender as a defendant,
asserting causes of action for violations of the Texas Deceptive
Trade Practices Act, breach of fiduciary duty, fraudulent
misrepresentation, negligence and conspiracy. 2 Cl.R. 52-58.
Citation was issued, Cl.R. 30-31, and Home Owner's retained a
private process server to serve Tax Lender. As she was authorized
to do, the process served Tax Lender's registered agent by certified
mail. Cl.R. 32-34. As Tax Lender later admitted, its registered
agent was properly served. Cl.R. 41.
What exactly Tax Lender's registered agent did with the
petition and citation remains a mystery to this day. This mystery
aside, Tax Lender claims that its registered agent never forwarded
the citation to it. Cl.R. 47. Consequently, the time for filing an
answer passed.
Home Owners did not immediately sprint to the courthouse
1Gonzalez Financial Holdings is a co-appellant in this matter. Home Owners
have previously filed a brief with this Court, addressing its complaints.
7
and seek a default judgment. Instead, it waited until the day of the
case was set for trial; and when Tax Lender failed to appear, Home
Owners requested entry of a default judgment. C.R. 7-11. After
determining that Tax Lender had been properly served, the trial
court heard sometimes gripping evidence concerning Home Owners’
damages. C.R. 13-23. Based on the foregoing, a default judgment
was entered. Cl.R. 35-38.
After entry of the default judgment, Tax Lender filed a motion
for new trial. Such motion was solely premised on traditional
Craddock grounds; it failed to mention improper service of process.
Cl.R. 39-48. However, Tax Lender failed to press for a hearing
timely, and the trial court refused to make an express ruling on the
motion. Cl.R. 5. Thus, the trial court was denied any opportunity
to exercise its discretion. Despite this, Tax Lender appeal followed.
Cl.R. 61-66.
SUMMARY OF ARGUMENT
One of the bedrock principles of appellate jurisprudence is
that a trial court must be given an opportunity to correct any
alleged error, before a litigant can complain to a reviewing court. In
8
the case at bar, neither the trial court nor Home Owners were ever
given any opportunity to correct any alleged errors. While a motion
for new trial was filed, neither the trial court nor Home Owners
were informed of any defects in service of process (which could have
been corrected under Tex. R. Civ. P. 118). Furthermore, the trial
court never expressly requested ruled on Tax Lender's motion, or to
pass upon the sufficiency of Tax Lender's evidence in support
thereof. Accordingly, Tax Lender should not be able to obtain a new
trial this Court.
A party cannot merely claim “I did not receive the citation from
my agent”, and consequently expect a new trial to be granted after a
default judgment. Instead, the defaulting defendant must explain
what he and his agent did and did not do, and why these acts and
omissions do not constitute conscious indifference. In the case at
bar, such evidence is conspicuously absent, and therefore the trial
court did not err in denying a motion for new trial.
ARGUMENT
APPELLANT HAS CLEARLY FAILED
TO PRESERVE ERROR
[A] Tax Lender Cannot Switch Horses Misstream
9
Before the trial court, Tax Lender took the position that its
registered agent was properly served: "Movant admits that its
registered agent, Corporation Service Company d/b/a CSA-Lawyers
Incorporated Service Company, was properly served with
citation." Cl.R. 41 (emphasis added). Before this Court, Tax
Lender now asserts that it was not properly served. Regardless of
the merits, one problem exists with Tax Lender’s current lack of
service arguments: in law, just as in life, a litigant cannot switch
horses in mid stream. Zimmerman v. Board of Trustees of Ball
State University, 940 F.Supp.2d 875, 884 (S.D. Ind. 2013); Wise v.
Sands, 739 S.W.2d 731, 734 (Mo. App. 1987).2
It is well-settled that parties are restricted on appeal to the
theory upon which the case was tried in the lower court. Davis v.
Campbell, 572 S.W.2d 660, 662 (Tex. 1978); Mitchell Energy Corp.
v. Bartlett, 958 S.W.2d 430, 444 (Tex. App.--Fort Worth 1997, writ
denied). Thus, "It is well settled that a case will not be reviewed by
the appellate court on a different theory from that on which it was
2"A familiar bit of homespun philosophy warns of the perils of attempting to
change horses in midstream. This admonition applies in litigation as well as in
life. Thus, when a litigant commits to a theory of the case and sticks to that
theory past the point of no return, he cannot thereafter switch to a different
theory simply because it seems more attractive at the time." Genereux v.
Raytheon Co., 754 F.3d 51, 53 (1st Cir. 2014).
10
tried." Tex-Hio Partnership v. Garner, 106 S.W.3d 886, 896 (Tex.
App.--Dallas 2003, no pet.). Furthermore, as a corollary to this
principle, a litigant cannot assume an attitude on appeal contrary
to that taken at the trial. Boatner v. Providence-Washington Ins.
Co., 241 S.W. 136, 140 (Tex. Comm'n App. 1922, judgm't adopted);
Vaughn Bldg. Corp. v. Austin Co., 620 S.W.2d 678, 683 (Tex. Civ.
App.--Dallas 1981), aff'd, 643 S.W.2d 113 (Tex.1982).
In the case at bar, in its motion for new trial, Tax Lender took
the position that its registered agent had been properly served.
Cl.R. 41. Now, before this Court, Tax Lender claims that its
registered agent was not properly served. However, having initially
claimed that service of process was proper, Cl.R. 41, Tax Lender
cannot now claim that service was improper. Trinity Universal Ins.
Co. v. Brainard, 153 S.W.3d 508, 513 (Tex. App.--Amarillo 2004),
modified on other grounds, 216 S.W.3d 809 (Tex. 2006).
[B] Improper Service Complaints Unpreserved
A party cannot complain of errors before the appellate court,
without first having complained before the trial court. Kershner v.
State Bar of Texas, 879 S.W.2d 343, 347-48 (Tex. App.--Houston
[14th Dist.] 1994, writ denied). If an appellant complains of trial
11
court errors for the first time on appeal, such complaints are not
present before the reviewing court. Kuehnhoefer v. Welch, 893
S.W.2d 689, 694 (Tex. App.--Texarkana 1995, writ denied). This
remains true, regardless of how meritorious the objections may
appear to the reviewing judges. Cantu v. Horany, 195 S.W.3d 867,
871 (Tex. App.--Dallas 2006, no pet.).3 The reason is simple:
preservation of error is a systemic requirement of every appeal,
Moore v. State, 295 S.W.3d 329, 333 (Tex Cr. App. 2009), and thus
is "mandatory and essential, and does not involve discretion of the
appellate court." Hughes v. Hughes, 407 S.W.2d 14, 16 (Tex. Civ.
App.--Waco 1966, no writ)(emphasis added).
Contrary to what some litigants believe, preservation of error
requirements are not imposed to lessen an appellate court's
workload. Instead, this Court has explained why a timely request
or objection must be made before the trial court before the alleged
error can be asserted before on appeal. First, "fairness to all parties
requires a litigant to advance complaints at a time when there is an
3This principal even applies to alleged errors of constitutional magnitude.
Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.--Houston [14th Dist.] 2008,
p.d.r. ref'd); Perez v. Cueto, 908 S.W.2d 29, 30 (Tex. App.--Houston [14th Dist.
1995, no writ).
12
opportunity to respond or cure them".4 Second, "reversing a case
for error not raised in a timely fashion permits the losing party to
second guess its tactical decisions after they do not produce the
desired result". And finally, "judicial economy requires that issues
be raised first in the trial court in order to spare the parties and the
public the expense of a potentially unnecessary appeal." Cross
Marine, Inc. v. Lee, 905 S.W.2d 22, 25 (Tex. App.--Corpus Christi
1995, writ denied); see also, Gillenwaters v. State, 205 S.W.3d 534,
537 (Tex. Cr. App. 2006)("The requirement that complaints be
raised in the trial court (1) ensures that the trial court will have an
opportunity to prevent or correct errors, thereby eliminating the
need for a costly and time-consuming appeal and retrial; (2)
guarantees that opposing counsel will have a fair opportunity to
respond to complaints; and (3) promotes the orderly and effective
presentation of the case to the trier of fact."); Tallabas v. Wing
Chong, 72 S.W.2d 636, 637 (Tex. Civ. App.--Eastland 1934, no
writ).
To preserve an alleged error for appellate review, the
4Forexample, if Tax Lender complained about improper service of process,
Home Owners could have modified the citation, pursuant to Tex. R. Civ. P. 118.
13
complaining party must:
1) make a timely objection specifying the
grounds for the objection;
2) make the object at the earliest possible
opportunity; and
3) obtain an adverse ruling from the trial
court.
Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana 2009,
p.d.r. ref'd). In other words, all a litigant must do to preserve error
for appeal is to let trial judge know what he wants, why he thinks
himself entitled to it clearly enough for the trial judge to understand
him, at a time when trial court is in position to do something about
it. White v. State, 958 S.W.2d 460, 462 (Tex. App.--Waco 1997, no
p.d.r.). Error preservation does not mandate use of hyper-technical
or formalistic words or phrases; instead, plain English can (and will)
adequately inform the trial court. Pena v. State, 285 S.W.3d 459,
464 (Tex. Cr. App. 2009).
In the case at bar, Tax Lender did not complain of any
improper service in its motion for new trial, Cl.R. 39-48, but instead
admitted that service of process was proper. Cl.R. 41. Instead, Tax
Lender complained that its registered agent for service of process
14
failed to forward citation to it. Cl.R. 47. As a result, Tax Lender's
current complaints concerning lack of service of process are not
properly before this Court. Norwest Mortgage, Inc. v. Salinas, 999
S.W.2d 846, 865 (Tex. App.--Corpus Christi 1999, writ denied);
Hirczy v. Hirczy, 838 S.W.2d 783, 785 (Tex. App.--Corpus Christi
1992, writ denied).5
Such omission is not cured by Tax Lender's first amended
motion for new trial. Cl.R. 49-60. The trial court granted Home
Owners a default judgment on May 16, 2014, Cl.R. 38, and Tax
Lender filed its initial motion for new trial on June 16, 2014. Cl.R.
39. Subsequently, on August 11, 2014, some 87 days after the trial
court signed the default judgment, Tax Lender filed a second motion
for new trial, for the first time complaining of improper service of
process. Cl.R. 49, 51-52.
The rule establishing deadlines for motions for new trial
states, “One or more amended motions for new trial may be filed . .
. within 30 days after the judgment or other order complained of is
signed.” Tex. R. Civ. P. 329b(b). Consequently, an amended motion
5FaultingHome Owners for failing to correct the citation when Tax Lender has
admitted that its agent received the citation and failed to assert that service
was improper reeks of hypocrisy.
15
for new trial filed more than thirty days after the trial court signed
its judgment is untimely. Prasad v. Capital Farm Credit, FLCA,
2013 WL 3877666 at 2 (Tex. App.--Houston [1st Dist.] 2013, no
pet.).6 “Thus, an untimely amended motion for new trial does not
preserve issues for appellate review, even if the trial court considers
and denies the untimely motion within its plenary power period.”
Thomas v. Ginter, 2014 WL 3738054 at 4 (Tex. App.--Houston [1st
Dist.] 2014, no pet.). In other words, the second motion for new
trial constitutes a nullity, and does not preserve error.7 Portfolio
Recovery Associates, LLC v. Talplacido, 2012 WL 204541 at 2 (Tex.
App.--Dallas 2012, no pet.). Accordingly, only the complaints
contained in Tax Lender's initial motion for new trial are properly
before this Court, Hester v. State, 497 S.W.2d 501, 503 (Tex. Civ.
App.--El Paso 1972, writ ref’d n.r.e.)8; thus, its service of process
complaints are not before this Court. Berlanga v. Berlanga, 2012
6Tax Lender has blithely ignored this Rule herein, claiming that if the second or
amended motion for new trial was filed while the trial court possessed plenary
power, the complaints therein were properly preserved. Appellant’s Brief, p. 6.
7Thus, contrary to Tax Lender, Appellant’s Brief, p. 2, such motion was not
overruled by operation of law.
8"The amended motion for new trial being a nullity, it cannot form the basis for
points of error on appeal. However, the appeal to this Court is timely . . .
Appellants are before this Court, but they are here only as to such assignments
of error as were made in their original motion for new trial."
16
WL 252497 at 1 (Tex. App.--Beaumont 2012, no pet.); Bubba's of
San Antonio v. Leyendecker Const., Inc., 2010 WL 2403717 at 2
(Tex. App.--San Antonio 2010, no pet.).
[C] Trial Court Never Given Opportunity to Exercise Discretion
On the morning of the hearing on Tax Lender’s Motion for New
Trial, Home Owners objected to proceeding, and the trial court
sustained the objection. Cl.R. 5. Tax Lender failed to obtain a new
setting, and failed to file its promised motion for reconsideration.
Cl.R. 5. Thus, the trial court was deprived of an opportunity of
reviewing and ruling on Tax Lender’s motion, and no express ruling
was ever obtained. Cl.R. 5. Instead, its initial motion was
overruled by operation of law. Thus, Tax Lender’s complaints are
not predicated upon any actual exercise of discretion by the trial
court.
A trial court cannot abuse its discretion, unless it is actually
called upon to exercise such discretion. This principle applies to
motions for new trial to set aside default judgments. See, e.g.,
Williams v. Bayview-Realty Associates, 420 S.W.3d 358, 364-65
(Tex. App.--Houston [14th Dist.] 2014, no pet.). As this Court has
indicated generally, "the proponent of a motion for new trial has the
17
burden of presenting it to the trial court, obtaining a hearing on it,
and presenting evidence to substantiate any factual matters
necessary to show entitlement to the requested relief." Herring v.
Childers, 2004 WL 1926795 at 8 n. 9 (Tex. App.--Corpus Christi
2004, pet. denied). Naturally, this applies to motions for new trial
seeking to set aside a default judgment; because the motion
requires both the consideration of evidence and the exercise of
discretion, the trial court must be given the opportunity to exercise
such discretion. Fluty v. Simmons Co., 835 S.W.2d 664, 667 (Tex.
App.--Dallas 1992, no writ). If the defaulting defendant fails to
obtain a hearing and an express ruling on its motion for new trial,
then it cannot claim error on appeal. Cisneros v. Regalado Family
Ltd. Partnership, 2011 WL 3366345 at 2-3 (Tex. App.--Corpus
Christi 2011, no pet.); James v. Comm'n for Lawyer Discipline, 310
S.W.3d 586, 594–95 (Tex. App.--Dallas 2010, no pet.); Lilly v. Tolar,
2002 WL 1926527 at 3 (Tex. App.--Texarkana 2002, pet. denied);
Shamrock Roofing Supply, Inc. v. Mercantile Nat. Bank at Dallas,
703 S.W.2d 356, 357-58 (Tex. App.--Dallas 1985, no writ).
In the case at bar, such principles preclude granting a new
trial by this Court. Tax Lender admits in its brief that it failed to
18
obtain an express ruling on its motion for new trial.9 Thus, Tax
Lender cannot now complain of the trial court’s failure to grant
relief. Cisneros v. Regalado Family Ltd. Partnership, supra; James
v. Comm'n for Lawyer Discipline, supra; Lilly v. Tolar, supra;
Shamrock Roofing Supply, Inc. v. Mercantile Nat. Bank at Dallas,
supra.
TAX LENDER CLEARLY NOT ENTITLED
TO NEW TRIAL
Home Owners believe that in light of the foregoing, this Court
can summarily affirm the trial court's judgment. However, even if
this Court ignores the mandatory requirement of preservation of
error, the trial court's judgment must still be affirmed.
[A] Alleged Defects in Service Do Not Warrant New Trial
Admittedly, service of process requires strict compliance.
However (and contrary to Tax Lender), strict compliance does not
require obeisance to the minutest detail. Herbert v. Greater Gulf
Coast Enterprises, Inc., 915 S.W.2d 866, 871 (Tex. App.--Houston
[1st Dist.] 1995, no writ). Accordingly, as long as the record shows,
with reasonable certainty, that the citation was served on the
9TaxLender does not assert a point of error with regard to the trial court’s
conduct.
19
defendant in the suit, service of process will not be invalidated. LEJ
Development Corp. v. Southwest Bank, 407 S.W.3d 863, 866 (Tex.
App.--Fort Worth 2013, no pet.). Accordingly, the type of errors
cited by Tax Lender in its brief do not invalidate service. See, e.g.,
Williams v. Williams, 150 S.W.3d 436, 443–44 (Tex. App.--Austin
2004, pet. denied)(omission of petitioner's name from citation not
fatal where no confusion about whether the correct party was
actually served); Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.-
-Corpus Christi 1996, no writ)(hand-written notation “c/o Maria
Regalado” on the return of the citation did not invalidate service
where record showed, with reasonable certainty, that the citation
was served on the defendant in the suit); Ortiz v. Avante Villa at
Corpus Christi, Inc., 926 S.W.2d 608, 613 (Tex. App.--Corpus
Christi 1996, writ denied)(the omission of the accent mark and the
substitution of the symbol “@” for the word “at” are akin to the
errors that do not invalidate service); Payne & Keller Co. v. Word,
732 S.W.2d 38, 41 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd
n.r.e.)(judgment upheld where petition and citation reflected
registered agent “Philippe Petitfrere,” the return reflected “Philipee
Petitfreere”); Popkowsi v. Gramza, 671 S.W.2d 915, 918 (Tex. App.--
20
Houston [1st Dist.] 1984, no writ)(judgment upheld where there was
dispute of fact whether handwritten return of service said “Michael
Poprowski” or “Michael Popkowski”).
In the case at bar, no dispute exists that Tax Lender was
properly served with process; it expressly acknowledged as much in
its motion for new trial. Cl.R. 41. Tax Lender admits that
Corporation Service Company d/b/a CSA-Lawyers Incorporated
Service Company is its registered agent for service, and the second
amended petition delivered by certified mail restricted delivery to
Corporation Service Company d/b/a CSA-Lawyers Incorporated
Service Company. Cl.R. 32-34, 41. Despite the typographical error
in the return, the petition and citation clearly show that the second
amended petition was served, especially in light of Tax Lender's
admission. Cl.R. 32-34, 41. Thus, service of process was proper.
Williams v. Williams, supra; Regalado v. State, supra; Ortiz v.
Avante Villa at Corpus Christi, Inc., supra; Payne & Keller Co. v.
Word, supra.
Additionally, Tax Lender claims that service on it was
improper because the magic word “agent” was not contained on the
green card. Again, Tax Lender does not dispute that Corporation
21
Service Company d/b/a CSA-Lawyers Incorporated Service
Company is the registered agent for service of process for Tax
Lender, and its agent signed for the certified mail. Cl.R. 41. As
long as the citation was received by the agent, service is proper.
Myan Management Group, L.L.C. v. Adam Sparks Family Revocable
Trust, 292 S.W.3d 750, 753 (Tex. App.--Dallas 2009, no pet.);
Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 290
(Tex. App.--Dallas 2003, no pet.). In the case at bar, Tax Lender’s
agent scribbled her name on the green card containing the second
amended petition, but failed to include the word agent on the green
card for Tax Lender. Cl.R. 33. It should not be able to claim service
is improper because its agent neglects to reflect her status.
More fundamentally, a wrongdoer is not allowed to profit from
his own wrong. Dorchester Gas Producing Co. v. Harlow Corp., 743
S.W.2d 243, 257 (Tex. App.--Amarillo 1987, writ denied). "There
are fundamental maxims of the common law which say: No one
shall be permitted to profit by his own fraud, or to take advantage
of his own wrong, or to found any claim upon his own iniquity, or to
acquire property by his own crime. These maxims are adopted by
public policy, and have their foundation in universal law admin-
22
istered in all civilized countries”. Ovalle v. Ovalle, 604 S.W.2d 526,
528 (Tex. Civ. App.--Waco 1980, no writ). If Tax Lender is correct,
then both it violated federal law by having someone other than its
agent sign for the citations. Tax Agent is now attempting to parley
its and its agent violation of federal law into claiming service of
process was improper, and therefore having the default judgment
set aside. However, because Tax Lender violated federal law, Tax
Lender cannot benefit from such violation.
Tax Lender also complains that the manner of service of
process was improper, because a private process server utilized the
United States post office, just as the clerk’s office can. This
contention was expressly rejected by the Houston Court of Appeals
in P & H Transp., Inc. v. Robinson, 930 S.W.2d 857 (Tex. App.--
Houston [1s Dist.] 1996, writ denied). In this case, the defaulting
defendant was served by private process server, using the United
States postal service. The defaulting defendant (just as Tax Lender
herein) claimed that such process was improper. However, on
appeal, the reviewing court disagreed:
In point of error one, appellants contend
service on P & H was not valid because it
violated rule 103, which provides service by
23
certified mail shall, if requested, be made by
the clerk of the court. See Tex. R. Civ. P. 103.
The record shows P & H was served by certified
mail sent by Cathy Romack, an authorized
private process server. Appellants urge us to
interpret the rule to mean service by mail may
be made only by the clerk. We decline to do
so. Rule 103 simply addresses who may serve;
rule 106 addresses the method of service, and
provides in pertinent part:
(a) Unless the citation or an order of
the court otherwise directs,
citation shall be served by any
person authorized by rule 103 by
. . . . .
(2) mailing to the defendant by
registered or certified mail, return
receipt requested, a true copy of the
citation with a copy of the petition
attached thereto.
Tex. R. Civ. P. 106(a)(2). “Service of citation
may be made by mail, either by an officer or
authorized person. Service by registered or
certified mail and citation by publication may
also be made by the clerk of the court where
the case is pending.” 2 Roy W. McDonald,
Texas Civil Practice in District and County
Courts § 9.11 (Supp.1991). We hold service by
mail may be made not only by the clerk but
also by other authorized persons.
Id at 859; accord, Warren v. Zamarron, 2005 WL 1038822 (Tex.
24
App.--Austin 2005, no pet.).10 Accordingly, service of process
cannot be set aside on this ground.
[B] Holding Service of Process Improper Herein Unconstitutional
Statutes and rules are designed to remedy an evil. However,
merely claiming that an evil exists does not render the statute or
rule proper. If the statute or rule does not address the very evil it
seeks to eliminate, it is unconstitutional. HL Farm Corp. v. Self,
877 S.W.2d 288, 292 (Tex. 1994).
But not only are statutes and rules which fail to serve their
purpose unconstitutional; statutes and rules which seek to remedy
an actual wrong but are overinclusive or which otherwise create
conclusive presumptions are likewise unconstitutional. For
example, in Sullivan v. University Interscholastic League, 616
S.W.2d 170 (Tex. 1981), the UIL had enacted a rule forbidding
transfer students from engaging in extracurricular activities (with
an exception for seniors). The rule was designed to forbid
recruitment of athletes, a worthy goal. However, the Texas
Supreme Court held U.I.L.'s no transfer rule unconstitutional,
10Contrary to Tax Lender herein, the defect in service in Ikon Office Solutions,
Inc. v. Integrity Communications, Ltd., 2006 WL 1644670 (Tex. App.--Corpus
Christi 2006, no pet.) was that the plaintiff’s attorney, not a disinterested third
person, served the petition, not that it was served by mail.
25
because it was overinclusive, i.e. it swept too broadly:
In practical effect, the challenged classification
simply does not operate rationally to deter
recruitment. The U.I.L. rule is overbroad and
over-inclusive. The rule burdens many high
school athletes who were not recruited and
were forced to move when their family moved
for employment or other reasons. The fact that
there is no means of rebutting the
presumption that all transferring athletes have
been recruited illustrates the capriciousness of
the rule. The inclusion of athletes who have
legitimately transferred with recruited athletes
does not further the purpose of the transfer
rule. Under strict equal protection analysis the
classification must include all those similarly
situated with respect to purpose. It is clear
that the transfer rule broadly affects athletes
who are not similarly situated.
The U.I.L. has a rule which specifically
prohibits recruitment of high school athletes.
The transfer rule was enacted in addition to
this specific rule. The over-inclusiveness and
the harshness of the transfer rule is not
rationally related to the purpose of preventing
recruitment. An exception exists to the
transfer rule in regard to seniors. There is no
rational reason why the exception given
seniors cannot be extended to others. In
practical operation the transfer rule excludes
from participation in varsity athletics the
majority of students who transfer for reasons
unrelated to recruitment. The legitimate goal of
the transfer rule does not justify the harsh
means of accomplishing this goal utilized by
the U.I.L.
26
Id. at 173.
Likewise, the Texas Guest Statute forbade passengers who
were victims in an automobile accident from suing the driver, if the
driver was a family member. The statute was designed to prevent
collusive lawsuits, again another worthy goal. However, this statute
likewise swept too broadly, creating conclusive presumptions that
family members were liars, and consequently was unconstitutional:
The Texas Guest Statute creates a
presumption that all automobile passengers
suing a driver who is within the second degree
of affinity or consanguinity do so collusively.
We refuse to indulge in the assumption that
close relatives will prevaricate so as to promote
a spurious lawsuit. No better example exists
than in this case. Had collusion existed,
Bynum could have acknowledged Whitworth
as a paying passenger or admitted to acts of
gross negligence. Dishonest individuals will
always attempt to circumvent the intent of the
statute by lying, while honest citizens are
penalized when the truth brings them within
the statutory scope denying them a negligence
cause of action.
Additionally, the statute affords no opportunity
for proof that a suit was filed because a
plaintiff conscientiously believed that his
injury was caused by the negligence of a
person within the proscribed degree of
relationship. In this respect, the Guest Statute
is not unlike the University Interscholastic
League rule that presumed all students who
27
transferred schools did so because they were
recruited to participate in athletics. It was this
irrebuttable presumption that we condemned
as being violative of equal protection
guarantees in Sullivan.
Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985).
In the case at bar, the rule asserted by Tax Lender, i.e. any
error invalidates service (especially after proper service was
admitted, Cl.R. 41), runs afoul of the United States and Texas
constitutions. The purpose of citation and service is to notify the
defendant of the pendency of the lawsuit. Tax Lender’s rule creates
an impermissible conclusive presumption that if perfection is not
followed, the default judgment is improper. This is clearly false, as
the facts of this case demonstrate. Likewise, Tax Lender’s rule is
overinclusive, i.e. it remedies both cases in which the defendant
does not receive notice and those cases in which he actually does.
Therefore, the default judgment cannot be invalidated on such
grounds.
[C] New Trials Not Granted Like Flowers on Valentine's Day
Contrary to Tax Lender, new trials are not given out to
defaulting defendants like flowers on valentine's day. Instead, "It is
within the discretion of the trial court to decide whether the facts of
28
the case warrant vacation of the default judgment and the granting
of a new trial." Carey Crutcher, Inc. v. Mid Coast Diesel Services,
Inc., 725 S.W.2d 500, 501 (Tex. App.--Corpus Christi 1987, no
writ). “Trial courts should set aside defaults only if convinced that
defendant acted in good faith and that the accident or mistake by
which he seeks to excuse himself was the cause of his default, and
that he could not have protected himself by the exercise of
reasonable diligence.”. Liberty Mutual Fire Ins. Co. v. Ybarra, 751
S.W.2d 615, 618 (Tex. App.--El Paso 1988, no writ). In its brief, Tax
Lender merely pounds its chest, now claiming it is the victim; but
such chest pounding cannot drown out its failure to satisfy its
burden.
In order to have a default judgment set aside and a new trial
granted, a defendant must demonstrate each of the following:
1. his failure to appear was not intentional
or the result of conscious indifference,
but rather was due to accident or
mistake;
2. the motion for new trial sets up a
meritorious defense; and
3. the granting of a new trial will occasion
no delay or otherwise work an injury to
the plaintiff.
29
Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124,
126 (1939); Dupnik v. Aransas County Navigation District No. 1,
732 S.W.2d 780, 781 (Tex. App.--Corpus Christi 1987, no writ).
The burden of proof for establishing these elements falls squarely
upon the shoulders of the defaulting defendant. Cocke v. Saks, 776
S.W.2d 788, 790 (Tex. App.--Corpus Christi 1989, writ denied).
Furthermore, in deciding whether these elements have been
satisfied, the trial court is not required to accept the defaulting
defendant's evidence at face value, but rather determines the
credibility of the witnesses and the weight their testimony should be
given. Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265
(Tex. App.--Texarkana 1992, writ dism'd). Thus, "In exercising its
fact finding power, the trial court is not bound to accept conclusive
statements of a witness." Vannerson v. Vannerson, 857 S.W.2d
659, 666 (Tex. App.--Houston [1st Dist.] 1993, writ denied); see
also, Kelly v. Brenham Floral Co., 2014 WL 4219448 at 4 (Tex.
App.--Houston [1st Dist.] 2014, no pet.)("As factfinder, the trial
court is given great latitude to believe or disbelieve a witness's
testimony, particularly if the witness is interested in the outcome.").
30
Rather, the trial court may choose to believe all, none or part of a
witness's testimony. Stein v. Meachum, 748 S.W.2d 516, 517 (Tex.
App.--Dallas 1988, no writ). This remains true, even if only
affidavits are presented. Oak Creek Homes, Inc. v. Jones, 758
S.W.2d 288, 290 (Tex. App.--Waco 1988, no writ)("As the trier of
fact, it was the trial judge's prerogative and duty to weigh all the
evidence, pick out what he believed to be its most credible parts,
and make his determinations accordingly.").
On appeal, a trial court's decision in granting or denying a
motion for new trial is reviewed for abuse of discretion. Southwest
Plaza Apts. v. Corpus Christi Brick & Lumber Co., 528 S.W.2d 885,
887 (Tex. Civ. App.--Corpus Christi 1975, no writ). In its brief, Tax
Lender has completely failed to address this standard of review;
from reviewing it, this Court would not know the principles involved
in such review of how it should be applied here. Appellant's Brief,
pp. 1-18.11 Such omission constitutes a clear briefing deficiency
which can mandate rebriefing or even summary affirmance of the
trial court's decision. See, Stooksbury v. State, 2009 WL 2883518
11Home Owners would also point out that an appellant is also expected to
inform the reviewing court how and where the alleged error was preserved
before the trial court. In re D.M., 244 S.W.3d 397, 403-04 (Tex. App.--Waco
2007, no pet.)(Reyna, J., con.).
31
at 5 (Tex. App.--Waco 2009, p.d.r. ref'd). Tax Lender's silence
herein derives from a simple source: the trial court did not abuse its
discretion (assuming that it was called upon to exercise it).
"A reviewing court cannot conclude that a trial court abused
its discretion if, in the same circumstances, it would have ruled
differently or if the trial court committed a mere error in judgment."
Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343,
354 (Tex. App.--Corpus Christi 1997), writ denied per curiam, 989
S.W.2d 360 (Tex. 1998); accord, Wal-Mart Stores, Inc. v. Sholl, 990
S.W.2d 412, 420 (Tex. App.--Corpus Christi 1999, writ denied);
Home Owners Funding Corp. of America v. Scheppler, 815 S.W.2d
884, 889 (Tex. App.--Corpus Christi 1991, no writ). Rather, "A trial
court abuses its discretion when it does not follow guiding rules
and principles and [thus] reaches an arbitrary and unreasonable
decision." In re Frost Nat. Bank, 103 S.W.3d 647, 649 (Tex. App.--
Corpus Christi 2003, mand. denied). As one reviewing court has
explained:
The question is not whether the trial judge
might have exercised better judgment, or made
a mere error in judgment which are no doubt,
common in many courts. In order for the trial
court's actions to have been abusive, the order
32
must have been so unreasonable, so arbitrary,
or based upon so gross and prejudicial an
error of law as to have no basis in reason or in
law.
Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651, 653
(Tex. App.--Beaumont 1990, no writ).
In determining whether an abuse of discretion occurred, the
reviewing court must view the evidence in the light most favorable
to the trial court's action, and indulge every legal presumption in
favor of the judgment or order. In re J.I.Z., 170 S.W.3d 881, 883
(Tex. App.--Corpus Christi 2005, no pet.). If some evidence
supports its decision, then the trial court acted within its
discretion. In re L.G.G., 398 S.W.3d 852, 855 (Tex. App.--Corpus
Christi 2012, no pet.); Reading & Bates Const. Co. v. O'Donnell,
627 S.W.2d 239, 244 (Tex. App.--Corpus Christi 1982, writ ref’d
n.r.e.).
Furthermore, in reviewing an appellant’s abuse of discretion
complaints, the appellate court must keep in mind the role of the
trial judge. As this Court has explained, "[T]he trial court is in the
best position to observe the demeanor and personalities of the
witnesses and can feel forces, powers, and influences that cannot
33
be discerned by merely reading the record." E.C., Jr. ex rel.
Gonzales v. Graydon, 28 S.W.3d 825, 829 (Tex. App.--Corpus
Christi 2000, no pet.). Based on such influences, forces, and
powers, the trial court determines the credibility of the witnesses,
assigns the weight to be given their testimony, Hines v. Commission
for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.--Corpus
Christi 2000, no pet.), and resolves and reconciles any conflicts
therein, accepting or rejecting such portions thereof as it sees fit.
City of Port Isabel v. Shiba, 976 S.W.2d 856, 859 (Tex. App.--
Corpus Christi 1998, writ denied). Thus, the trial court "is free to
reach its findings by believing or rejecting some or all of the contra-
dictory testimony when assessing the comparative truthfulness of
the witnesses." Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--
Corpus Christi 1996, writ denied); see also, Roberts v. Burkett, 802
S.W.2d 42, 47 (Tex. App.--Corpus Christi 1990, no writ); Fonseca v.
County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ. App.--Corpus
Christi 1975, writ ref'd n.r.e.). Regardless of Tax Lender's desire
herein, this Court cannot substitute its findings for the trial court's
concerning the credibility of the witnesses. Adams v. H & H Meat
Products, Inc., 41 S.W.3d 762, 769 (Tex. App.--Corpus Christi
34
2000, no pet.).
As applied to a motion for new trial after a default judgment, a
trial court does not abuse its discretion in denying such motion if
the defaulting defendant has failed to satisfy its burden under
Craddock. Liberty Mutual Fire Ins. Co. v. Ybarra, supra; see, Phifer
v. Nacogdoches County Central Appraisal Dist., 45 S.W.3d 159, 173
(Tex. App.--Tyler 2000, pet. denied); Continental Carbon Co. v. Sea-
Land Service, Inc., 27 S.W.3d 184, 190 (Tex. App.--Dallas 2000,
pet. denied). Likewise, a trial court does not abuse its discretion in
denying the motion or request if conflicting evidence is presented,
and the evidence reasonably supports its decision. Executive Tele-
Communication Systems v. Buchbaum, 669 S.W.2d 400, 403 (Tex.
App.--Dallas 1984, no writ).
[D] Tax Lender Acted With Conscious Indifference
Pursuant to Craddock, Tax Lender was initially required to
demonstrate that it did not act with conscious indifference. While
Tax Lender claims it did not act with conscious indifference, Home
Owner initially questions whether it has properly briefed this issue.
It has completely failed to discuss or otherwise explain what legally
constitutes conscious indifference, sufficient to warrant a new trial.
35
It failed to cite any legal authority discussing lack of conscious
indifference. And it failed to cite to the record when discussing lack
of conscious indifference.12 Appellant's Brief, p. 16.
A party's briefing obligations do not cease by formulating the
issues presented. Instead, in order to comply with the Texas Rules
of Appellate Procedure, an appellant must perform three tasks.
See, Haas v. George, 71 S.W.3d 904, 914 (Tex. App.--Texarkana
2002, no pet.). First, the appellant must set forth the applicable
legal principles, with specific references to the legal authority which
supports this position. State v. $30,660.00, 136 S.W.3d 392, 405
(Tex. App.--Corpus Christi 2005, pet. denied); Texas Dep't of Public
Safety v. Struve, 79 S.W.3d 796, 801 n. 6 (Tex. App.--Corpus
Christi 2002, pet. denied). Second, the appellant must discuss the
facts of the case, designating the specific portions of the record
which support the alleged version of the facts. Heath v. Herron,
732 S.W.2d 748, 752 (Tex. App.--Houston [14th Dist.] 1987, no
writ).13 Third, the appellant must apply the applicable law to the
12Such omissions are also repeated with Tax Lender’s analysis of a meritorious
defense. Appellant's Brief, p. 17.
13An appellate court has no duty to independently search the record. Henry S.
Miller Management Corp. v. Houston State Bank Associates, 792 S.W.2d 128,
134 (Tex. App.--Houston [1st Dist.] 1990, no writ).
36
applicable facts of the case. Brock v. Sutker, 215 S.W.3d 927, 929
(Tex. App.--Dallas 2007, no pet.). Mere conclusory application or
explanation fails to satisfy such fundamental requirements. Tacon
Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d
666, 671 (Tex. App.--Houston [14th Dist.] 1994, writ denied).
Failure to comply with any of these requirements pounds a stake
into the heart of an appellant's complaint.
In the case at bar, Tax Lender has failed to comply with any of
these requirements. It has failed to explain what constitutes lack of
conscious indifference. It has failed to explain to this Court how
the facts presented by this case demonstrate lack of conscious
indifference. And it has failed to cite this Court to the location in
the record where such facts can be found. Appellant's Brief, p. 16.
Instead, after reading Tax Lender’s brief, the prophetic words of the
Waco Court of Appeals immediately come to mind: "With disturbing
frequency, this Court receives briefs which are inadequate. It is a
waste and improper use of judicial resources to brief an appellant's
case for him.” Walder v. State, 85 S.W.3d 824, 827 (Tex. App.--
Waco 2002, no p.d.r.). Accordingly, any error has been waived.
Columbia Rio Grande Regional Hospital v. Stover, 17 S.W.3d 387,
37
391 (Tex. App.--Corpus Christi 2000, no writ); Cardenas v.
Continental Ins. Co., 960 S.W.2d 401, 404 (Tex. App.--Corpus
Christi 1998, writ denied).
Even if Tax Lender had not waived this complaint, such error
nevertheless remains completely devoid of any merit. Conscious
indifference in this context means failure to take action that would
seem indicated to a person of reasonable sensibilities under the
same or similar circumstances. Dreisbach v. Reed, 780 S.W.2d
901, 903 (Tex. App.--El Paso 1989, no writ); Johnson v. Edmonds,
712 S.W.2d 651, 652-53 (Tex. App.--Fort Worth 1986, no writ).
Whether such conscious indifference exists presents a question of
fact. P & H Transportation, Inc. v. Robinson, 930 S.W.2d 857, 861
(Tex. App.--Houston [1st Dist.] 1996, no writ). If a party fails to
explain why he failed to take action, he consequently fails to prove
lack of conscious indifference. Konkel v. Otwell, 65 S.W.3d 183,
187 (Tex. App.--Eastland 2001, no writ).
Apparently completely unknown to Tax Lender, when a
defaulting defendant's excuse is his reliance on an agent, he must
demonstrate that both he and his agent were free of conscious
indifference. See, Sharm, Inc. v. Martinez, 900 S.W.2d 777, 782
38
(Tex. App.--Corpus Christi 1995, no writ); Dreisbach v. Reed, supra.
For example, in Memorial Hospital System v. Fisher Ins. Agency,
Inc., 835 S.W.2d 645 (Tex. App.--Houston [14th Dist.] 1992, no
writ), the defendant, Fisher, was served and forwarded the petition
and citation to its insurance company. When a default judgment
was granted, the defendant was granted a motion for new trial
because it had forwarded the petition and citation to the insurance
company. However, on appeal, the order granting the new trial was
set aside and the default judgment reinstated, because Fisher failed
to explain what the insurance company did after receiving the
petition:
When a party relies on an agent or
representative to file an answer, the party
must establish that the failure to answer was
not intentional or the result of conscious
indifference of either the party or the agent.
Thus, the movant cannot be relieved from a
default judgment on the ground that it turned
the petition over to its insurer and relied upon
the insurer to file an answer, in the absence of
showing why the insurer failed to answer.
Fisher offers no reasonable explanation of why
its insurance carrier failed to represent its
interest in the present case. Furthermore,
conscious indifference can be defined as the
failure to take some action which would seem
indicated to a person of reasonable
sensibilities under the same circumstances. It
39
is reasonable to assume that when a prudent
person is served with a petition concerning a
lawsuit and is relying on his agent to represent
his interest, he is going to make sure that his
agent is using due diligence in handling the
lawsuit. Fisher has not shown that its failure
to file an answer was not intentional or the
result of conscious indifference.
Id. at 652; accord, Cornerstone Alternatives, Inc. v. Patterson
Oldsmobile-GMC-Toyota, Inc., 696 S.W.2d 702 (Tex. App.--Fort
Worth 1985, no writ).
The same principle applies to the case at bar, and precludes a
new trial. Admittedly, Tax Lender claims never received the citation
and petition from its registered agent. Cl.R. 47-48. However, Tax
Lender has completely failed to explain what his registered agent
did after receiving the citation and petition. Moreover, Tax Lender
failed to present any evidence from his registered agent to support
such lack of explanation. Cl.R. 39-48. As a result, Tax Lender
completely failed to demonstrate lack of conscious indifference, and
therefore the trial court did not abuse its discretion in failing to
grant a new trial. Scenic Mountain Medical Center v. Castillo, 162
S.W.3d 587, 590-91 (Tex. App.--El Paso 2005, no pet.); Faulkner v.
Stark, 2004 WL 1698052 at 2 (Tex. App.--Texarkana 2004, no pet.).
40
[E] Tax Lender Failed to Set Up Meritorious Defense
As the second element to obtain a new trial, Tax Lender was
required to establish a meritorious defense. "To establish a
meritorious defense, the movant must basically prove the same
defense which must be established if he is later to have a judgment
in his favor. A meritorious defense is one going to the merits,
substance or essentials of the case." Stock v. Stock, 702 S.W.2d
713, 715 (Tex. App.--San Antonio 1985, no writ). The meritorious
defense must address or defeat all causes of action pled. See,
Equinox Enterprises, Inc. v. Associated Media, Inc., 730 S.W.2d
872, 876 (Tex. App.--Dallas 1987, no writ). Furthermore, all
elements of the defense must be established. As one appellate
court has explained:
In "setting up" a meritorious defense, the
movant must allege facts, not conclusions.
Moreover, those facts must constitute "prima
facie" evidence of the defense. In other words,
they must touch upon each element
comprising the defense. For instance, if a
defense were composed of elements "X," "Y,"
and "Z" but the evidence propounded
addressed nothing other than component "X,"
then the movant would not have met his
burden. Nothing less can be required if the
courts are to adhere to the directive that the
motion must be supported by affidavits or
41
other evidence proving prima facie that the
defendant has such meritorious defense.
Nothing less can be accepted as the courts
strive to avoid reopening cases simply to try
out fictitious or unmeritorious defenses.
Hicks v. Flores, 900 S.W.2d 504, 506-07 (Tex. App.--Amarillo 1995,
no writ).
"To meet the requirement that the motion set up a meritorious
defense, the defendant must alleged facts which in law would
constitute a defense to the cause of action asserted by the plaintiff.
Those facts must be supported by affidavits or other evidence
proving, prima facie, that the defendant has a meritorious defense."
Siegler v. Williams, 658 S.W.2d 236, 239 (Tex. App.--Houston [1st
Dist.] 1983, no writ). Affidavits containing conclusions and
conclusory evidence are devoid of probative value. Prime Prods.,
Inc. v. SSI Plastics, 97 S.W.3d 631, 637 (Tex. App.--Houston [1st
Dist.] 2002, pet. denied). As applied to affidavits supporting
motions for new trial, conclusions and conclusory evidence fails to
satisfy the defaulting defendant's burden of establishing a
meritorious defense. Wates v. Carlock, 1996 WL 603863 at 3-4
(Tex. App.--Amarillo 1996, writ denied); Salt Water Resources v.
Kirkpatrick & O'Donnell Const. Equipment Co., 694 S.W.2d 122,
42
123 (Tex. App.--Dallas 1985, no writ).
In the case at bar, Tax Lender's president testified as follows:
The Plaintiffs allege that the failure to provide
insurance on their properties was somehow
the fault of Alamo Home Finance, Inc.
However, when the Duran's closed their loan
with Alamo, they specifically stated they did
not want insurance on the property because
the properties were already insured. At the
Plaintiffs' request, Alamo never contracted to
purchase insurance on the Plaintiffs' behalf
and never otherwise had a responsibility to do
so.
Cl.R. 48. Such statements are conclusory, because the who, what,
why, when and where remain completely unmentioned. Likewise,
no documentation or other evidence was presented in support
thereof. Cl.R. 39-48. Thus, such statements fail to warrant a new
trial. See, K & M Tools, Inc. v. Bencon Management and General
Contracting Corp., 1997 WL 605097 at 3 (Tex. App.--Houston [14th
Dist.] 1997, writ denied); Haskins v. Finks, 470 S.W.2d 717, 718
(Tex. Civ. App.--Eastland 1971, writ ref’d n.r.e.).
Ignoring the conclusory nature of such evidence, Tax Lender's
statement further fails to establish a meritorious because it fails to
address all the causes of action listed. In their second amended
petition, Home Owners sued Tax Lender for unconscionable course
43
of conduct, omission of facts and information, breach of fiduciary
duty, fraud, and negligence. 1 Supp.Cl.R. 52-57. In order to obtain
a new trial, Tax Lender was required to address all asserted causes
of action. Hicks v. Flores, supra.14 Tax Lender's conclusory
statement, even if assumed true, does not explain why Home
Owner's were charged for insurance when they did not receive it.
Accordingly, Tax Lender was not entitled to a new trial.
[F] Tax Lender’s Offers of Equity Insufficient
Finally, to obtain a new trial, a defendant must demonstrate
that the granting thereof will occasion no delay or otherwise work
an injury to the plaintiff. Concededly, no hard and fast rule exists
for satisfying this element; rather, whether its satisfaction lies
within the discretion of the trial court. United Beef Producers, Inc.
v. Lookingbill, 532 S.W.2d 958, 959 (Tex. 1976). While often getting
the short shrift, this element is just as important as the other
elements contained in the Craddock formulation. Should a
defendant fail to satisfy this element, the trial court properly denies
14Tax Lender's assertion that Home Owners' claims are barred by limitations,
Appellant's Brief, p. 17, are not properly before this Court. First, they were not
contained in Tax Lender's initial motion for new trial. Cl.R. 39-44. Second, the
statute of limitations for fraud is four years. Williams v. Khalaf, 802 S.W.2d
651 (Tex. 1990).
44
a motion for new trial. Glittenberg v. Hughes, 524 S.W.2d 954, 956
57 (Tex. Civ. App.--Fort Worth 1975, no writ).
Absent unusual circumstances, to satisfy this element, the
defaulting defendant must offer to reimburse the plaintiff, White v.
Douglas, 569 S.W.2d 635, 637 (Tex. Civ. App.--Texarkana 1978, no
writ), and must offer to go to trial immediately. First National Bank
of Bryan v. Peterson, 709 S.W.2d 276, 279 (Tex. App.--Houston
[14th Dist.] 1986, writ ref'd n.r.e). For example, in O'Connell v.
O'Connell, 843 S.W.2d 212 (Tex. App.--Texarkana 1992, no writ),
the defaulting defendant requested that the trial court set the case
for retrial "at any time after the expiration of 30 days". Thus, the
defaulting party was not "ready, willing and able" to "proceed with
trial immediately as required by the third prong of Craddock. This
is true despite almost five months having passed since the case was
first set for trial and forty five days having passed since the trial
court entered the default judgment against her." Thus, the trial
court did not abuse its discretion in denying the motion for new
trial. Id. at 220.
In the case at bar, Tax Lender failed to satisfy this require-
ment. It failed to offer to proceed to trial immediately, Cl.R. 44,
45
especially in light of the prior delay already encountered in the
prosecution of this matter. 1 Supp.Cl.R. 32. As a result, the trial
court did not abuse its discretion in refusing to grant a new trial.
Texas General Indem. Co. v. McKay, 595 S.W.2d 884, 887 (Tex. Civ.
App.--Waco 1980, writ ref’d n.r.e.).
CONCLUSION AND PRAYER
Tax Lender’s conduct herein reeks of unfairness. Regardless
of who said what about insurance herein, it is fundamentally unfair
to take a portion the loan proceeds for insurance, and then fail to
purchase it. It is fundamentally unfair to admit before the trial
court that service was proper, and then claim before the appellate
court that it was not. It is fundamentally unfair to not appraise
both the trial court and the plaintiff of service complaints, in order
to permit the actual facts to be developed and any typographical
errors to be corrected. And it is fundamentally unfair to hold that a
trial court abused its discretion, when it is not ever called upon to
exercise such discretion. Unless the legal system and its rules are
to be replaced with the law of the jungle, such fundamental
unfairness must possess consequences. And as applied to Tax
46
Lender herein, such consequences mean that its efforts to set aside
the default judgment must be denied.
WHEREFORE, PREMISES CONSIDERED, MARIO DURAN and
MARIA DURAN, Appellees, respectfully pray that the judgment of
the trial court be AFFIRMED, and for all other and further relief,
either at law or in equity, to which Appellees show themselves justly
entitled.
Respectfully submitted,
LIVESAY LAW OFFICE
BRAZOS SUITES NO. 9
517 West Nolana
McAllen, Texas 78504
(956) 928-0149
By: __Keith C. Livesay___________
KEITH C. LIVESAY
State Bar. No. 12437100
Francisco J. Rodriguez
State Bar No. 17145800
LAW OFFICE OF FRANCISCO J. RODRIGUEZ
1111 W. Nolana Ave.
McAllen, Texas 78504
Tel: (956) 687-4363
Fax: (956) 687-6415
CERTIFICATE OF COMPLIANCE
I, KEITH C. LIVESAY, do hereby certify that the above and
47
foregoing brief was generated using Word 2007 using 14 point font
and contains 9661 words.
By: ____Keith C. Livesay__________
KEITH C. LIVESAY
CERTIFICATE OF SERVICE
I, KEITH C. LIVESAY, do hereby certify that I have caused to
be delivered a true and correct copy of the above and foregoing
document to Opposing Counsel on this the 9th day of March, 2015.
By: ____Keith C. Livesay_________
KEITH C. LIVESAY
48
Alamo Home Finance, Inc. and Gonzalez Financial Holdings, Inc. v. Mario Duran and Maria Duran
Combined Opinion