David Wayne Thompson v. Travis Bailey and Lisa Bailey ( 2015 )

ACCEPTED
04-15-00036-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/17/2015 3:51:00 PM
KEITH HOTTLE
CLERK
No.04-15-00036-CV
IN THE FOURTH COURT OF APPEALS FILED IN
4th COURT OF APPEALS
AT SAN ANTONIO 04/17/2015
SAN ANTONIO, TEXAS
3:51:00 PM
_______________________________ ClerkHOTTLE
KEITH E.
DAVID WAYNE THOMPSON
Appellant,
vs.
TRAVIS BAILEY AND LISA BAILEY,
Appellees
_________________________________________
On Appeal from the 38th Judicial District of Uvalde County, Texas
(Trial Court Cause No. 2013-07-29422-CV)
________________________________________________
APPELLANT’S REPLY BRIEF
________________________________________________
Rogelio M. Muñoz
State Bar No. 24044409
Email: roy@swtexaslaw.com
The Muñoz Law Firm
231 S. Getty St.
Uvalde, TX 78801
Tel:(830) 278 – 1150
Tel:(830) 278 – 1559
Counsel for Appellant
ORAL ARGUMENT IS REQUESTED
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE REPLY
Appellant, David Thompson, (hereafter Mr. Thompson) files this reply to the
Appellee’s Brief.
REPLY ISSUES PRESENTED
Reply Point Number 1: Service was defective.
Reply Point Number 2: Trial court erred in conditionally granting the
motion for new trial.
ARGUMENT AND AUTHORITIES
Reply Point 1: Service was defective.
The Appellees, Lisa and Travis Bailey, (hereafter the Baileys) make several
arguments in favor of valid service, but they are each without legal merit.
I. First, the Baileys argue that service was valid because the process server,
Mr. Olivarez, was authorized to serve under Tex. R. Civ. P. 103 (hereafter rule
103) because he was a retired sheriff’s deputy. Essentially, they are asking the
Court to interpret rule 103 to mean that retired sheriff’s deputies are expressly
authorized to serve under rule 103. This argument is problematic for a very simply
reason; that is not what the express language of rule 103 says. Rule 103 provides
that, “service of process may be served by: (1) any sheriff of constable or other
person authorized by law…” Tex. R. Civ. P. 103. Nothing in the rule authorizes
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service by a retired sheriff’s deputy. The Baileys attached to their brief a standing
order that authorized Mr. Olivarez that was signed on July 17, 2014. (See Tab I to
Appellees Brief). That order took effect more than three months after Mr. Olivarez
served the return. Not surprisingly, Mr. Olivarez requested a standing order from
the trial court that gave him written authorization to serve after the motion for new
trial was filed and his ability to serve was challenged. If Mr. Olivarez had been
authorized to serve process under the express terms of rule 103 then there would
not have been a need to obtain written authorization from the trial court.
II. Secondly, the Baileys argue that service was valid because the process
server, Mr. Olivarez, was authorized to server under written order of the court in
compliance with Tex. R. Civ. P. 103 (2). This argument fails because despite the
Bailey’s contentions to contrary, no written order existed at the time of service that
authorized Mr. Olivarez to serve process in this case. The Bailey’s claim that the
trial court’s order granting substituting service, which authorized service by
leaving a copy of the petition with anyone over 16 years of age, also authorized
Mr. Olivarez to serve process. The Baileys argue that because their motion for
substituted service was supported by an affidavit made by Mr. Olivarez, and
because the trial court granted the motion for substituted service, the order granting
substituted service should be read to give requisite written authorization to Mr.
Olivarez to serve process.
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This argument fails for several reasons. First and most significantly, the order
granting substituted service did not either expressly or impliedly authorize Mr.
Olivarez to serve process. The order merely authorized an alternate method of
service; it did not give Mr. Olivarez authorization to serve process. (CR 29).
Another problem with this position is that the motion for substituted service did not
ask the trial court for written authorization for Mr. Olivarez to serve process.
Instead, the motion only asked for authorization to serve Mr. Thompson by leaving
a copy of the petition with someone over 16 years of age at his residence. (CR 26).
As a consequence, the order granting substituted service did only what the Baileys
requested in their motion, which was authorization for an alternate method of
service. Another problem with this argument is that, at the hearing on the motion
for new trial, counsel for the Baileys never raised this argument. It is only logical
that if the order authorizing substituted service was intended to give written
authorization to Mr. Olivarez, the issue would have been raised by counsel for the
Baileys.
III. Third, the Baileys argue that the trial court’s order granting new trial
constituted an affirmative amendment to return, which thereby authorized Mr.
Olivarez to serve in this case. In support of this position, the Baileys cite
Higginbotham vs. General Life and Acc. Ins. Co., 796 S.W.2d 695 (Tex. 1990).
Higginbotham is inapposite the instant case because it dealt with a very different
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factual situation. In Higginbotham, the applicable law required service during
regular business hours and the return showed service at 12:01 p.m., but it did not
state that the businesses’ hours included that particular time. Id. After a default
judgment was obtained, the defendants filed a motion for new trial and the trial
court denied the motion. The Supreme Court found that the trial court, in finding
that service was proper under the quoted provision of the statute also found that
service was made “during business hours” and in so doing it implicitly amended
the citation without need for an amended citation. Id. Higginbotham is not
pertinent to instant case because there service was in fact properly perfected. The
only issue was an ambiguity as to whether the time of service “12:01p.m.” was
during regular business hours. The trial court found that the time of service
occurred during normal business hours which thereby validated service. Thus, in
Higginbotham the trial court only made an evidentiary determination that clarified
the facts stated in the return. By clarifying the language in the return the Supreme
Court found that the trial court implicitly amended it. Higginbotham is therefore
applicable on the issue of whether a trial court can implicitly amend a return of
service.
By contrast, here the issue is not whether the return of citation itself is
sufficient, but whether the individual who served the citation was authorized by
statute. Here, the trial court could not have amended the return because the person
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who served citation was not authorized to serve under rule 103. Unlike in
Higginbotham, here service was completely defective because Mr. Olivarez was
not authorized to serve. Finally, unlike in Higginbotham, here the trial court made
no findings that Mr. Olivarez was authorized to serve process which could be
implied as amendment to the return.
IV. In the Baileys final argument in favor of valid service they claim that
because Mr. Thompson appeared before the trial court after the motion for the new
trial was granted, he had acquiesced to the jurisdiction of the trial court which
thereby rendered any arguments regarding service moot. This argument also fails
because, even though Mr. Thompson entered a general appearance after the default
judgment was rendered, it does not negate the fact that when the default judgment
was obtained the trial court was without jurisdiction. The trial court did not have
jurisdiction to render the default judgment because there was improper service.
The fact that the trial court later acquired jurisdiction does not change the fact that
the default judgment was void. If the default judgment was void then the trial court
was without power to restore it.
Reply Point Number 2: Trial court erred in conditionally granting the motion
for new trial.
I. The Baileys contend that when the trial court modified its order granting
new trial, by making it conditionally granted upon the payment of fees, the trial
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court had personal jurisdiction because Mr. Thompson had made a general
appearance. Mr. Thompson does not dispute that, after he appeared in the case, he
submitted himself to the jurisdiction of the court. That does not change the fact
that the default judgment was entered without proper service. Without proper
service the trial court never acquired jurisdiction to enter the default judgment.
Thus, even if the trial court had jurisdiction after Mr. Thompson appeared it still
did not give it authority to reinstate a void judgment.
II. The Baileys next contend that the trial court has authority to conditionally
grant a new trial upon specific terms. As stated in Mr. Thompson’s brief, he does
not dispute the general principle that a trial court can in some instances
conditionally grant a motion for new trial. But here the trial court was without
power to do so. This is because service was defective, and without valid service
the trial court never acquired personal jurisdiction to enter a default judgment. As
a consequence, the default judgment was void, and it logically follows that a trial
court cannot reinstate a void judgment.
CONCLUSION AND PRAYER
For these reasons, Mr. Thompson requests that this court reverse the trial
court, vacate the default judgment, and order a new trial.
Respectfully Submitted,
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/s/ Rogelio M. Muñoz
Rogelio M. Muñoz
State Bar Number: 24044409
The Muñoz Law Firm
231 South Getty Street
Uvalde, Texas 78801
Telephone: (830) 278-1150
Fax: (830) 278-1559
Attorney for the Appellant,
David Wayne Thompson
CERTIFICATE OF SERVICE
I certify that I have served this reply brief by mailing a copy on the 17th day
of April, 2015, to the following counsel of record:
Mr. Paul J. Tarski
205 N. Getty St.
Uvalde, TX 78801
Tel: 830 278 2544
Fax 830 278 7316
email: paul@tarskilaw.com
/s/ Rogelio M. Muñoz
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