Alamo Home Finance, Inc. and Gonzalez Financial Holdings, Inc. v. Mario Duran and Maria Duran ( 2015 )

ACCEPTED
13-14-00462-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/23/2015 9:01:25 PM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-14-462-CV
FILED RECEIVED IN
IN THE 13TH COURT OF APPEALS In The 13th COURT OF APPEALS
CORPUS CHRISTI CORPUS CHRISTI/EDINBURG, TEXAS
Court of Appeals
4/23/15 4/23/2015 9:01:25 PM
DORIAN E. RAMIREZ, CLERK
For the DORIAN E. RAMIREZ
Clerk
BY Delia S. Rodriguez Thirteenth Appellate District
Corpus Christi, Texas
ALAMO HOME FINANCE and
GONZALEZ FINACIAL HOLDINGS
APPELLANTS
V.
MARIO DURAN and
MARIA DURAN
APPELLEES
APPELLEES' REPLY BRIEF
TO APPELLANT ALAMO HOME FINANCE'S
REPLY BRIEF
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 iii
TAX LENDER JUDICIALLY ADMITTED PROPER
SERVICE OF PROCESS 2
TAX LENDER'S EFFORTS TO REWRITE PRESERVATION
OF ERROR RULES: MISGUIDED AND
UNCONSTITUTIONAL 6
TAX LENDER REQUIRED TO PRESENT EVIDENCE
CONCERNING REGISTERED AGENT’S CONDUCT 12
HARMLESS ERROR FAILS TO DEMONSTRATE
MERITORIOUS DEFENSE 15
CONCLUSION AND PRAYER 16
CERTIFICATE OF COMPLIANCE 18
CERTIFICATE OF SERVICE 18
ii
TABLE OF AUTHORITIES
CASES
Aim-Ex Industry, Inc. v. Slover, 2010 WL 2136599 at 1 (Tex.
App.--Amarillo 2010, pet. denied) 14
Bailey v. Kemper Cas. Ins. Co., 83 S.W.3d 840, 848 (Tex.
App.--Texarkana 2002, pet. denied w.o.j.) 11
Balawajder v. Texas Dept. of Criminal Justice Institutional
Div., 217 S.W.3d 20, 27 n. 6 (Tex. App.--Houston
[1st Dist.] 2006, pet. denied) 7
Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d
231, 234 (Tex. 2007) 5
Barshop v. Medina County Underground Water Conservation
Dist., 925 S.W.2d 618, 629 (Tex. 1996) 9
Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex.
App.--San Antonio 2002, pet. denied) 11
Bernal v. Travelers Ins. Co., 469 S.W.2d 641, 642 (Tex.
Civ. App.--Waco 1971, no writ) 5
Central Sec. Nat. Bank of Lorain County v. Royal Homes, Inc.,
371 F. Supp. 476, 480 (E.D. Mich. 1974) 10
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996) 15
Cornerstone Alternatives, Inc. v. Patterson Oldsmobile-GMC-
Toyota, Inc., 696 S.W.2d 702, 703 (Tex. App.--Fort Worth
1985, no writ) 13
Cross Marine, Inc. v. Lee, 905 S.W.2d 22, 25 (Tex. App.--
Corpus Christi 1995, writ denied) 8
Davis v. Campbell, 572 S.W.2d 660, 662 (Tex. 1978) 2
iii
Dowell v. Quiroz, 2015 WL 1544685 at 4 n. 6 (Tex. App.--
Corpus Christi 2015, no pet.) 12
Equinox Enterprises, Inc. v. Associated Media, Inc., 730
S.W.2d 872, 876 (Tex. App.--Dallas 1987, no writ) 16
First Nat. Bank of Bryan v. Peterson, 709 S.W.2d 276, 279
(Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.) 3
Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012) 7
Garduza v. Castillo, 2014 WL 2921650 (Tex. App.--Dallas
2014, no pet.) 11
Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458, 467
(Tex. 1969) 3
Gillenwaters v. State, 205 S.W.3d 534 (Tex. Cr. App. 2006) 8
HEB Ministries, Inc. v. Texas Higher Educ. Coordinating Board,
235 S.W.3d 627, 658 (Tex. 2007) 7
Hicks v. Flores, 900 S.W.2d 504, 506-07 (Tex. App.--Amarillo
1995, no writ) 16
Hurst v. A.R.A. Manufacturing Co., 555 S.W.2d 141, 142
(Tex. Civ. App.--Fort Worth 1977, writ ref'd n.r.e.) 4
In re Onewest Bank, FSB, 430 S.W.3d 573, 577 (Tex. App.--
Corpus Christi 2014, no pet.) 7
Isern v. Watson, 942 S.W.2d 186, 200–201 (Tex. App.--
Beaumont 1997, writ denied) 3
Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex. App.--Austin
1992, no writ) 5
Katin Corp. v. Loesch, 2007 WL 2274835 (Tex. App.--Austin
iv
2007, pet. denied) 15
Kuehnhoefer v. Welch, 893 S.W.2d 689, 694 (Tex. App.--
Texarkana 1995, writ denied) 6
Lee Hoffpauir, Inc. v. Kretz, 431 S.W.3d 776, 780 (Tex.
App.--Austin 2014, no pet.) 12
Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.—Houston
[14th Dist.] 1998, no writ) 16
Memorial Hospital System v. Fisher Ins. Agency, Inc., 835
S.W.2d 645, 652 (Tex. App.--Houston [14th Dist.] 1992,
no writ) 13
Metro A, LLC v. Polley, 2011 WL 4413233 (Tex. App.--Fort
Worth 2011, pet. denied) 4
Mississippi Chemical Corp. v. Chemical Const. Corp., 444
F. Supp. 925, 933 (S.D. Miss. 1977) 10
Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 444
(Tex. App.--Fort Worth 1997, writ denied) 2
Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003) 6
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950) 10
Newton v. SCI Texas Funeral Services, Inc., 2015 WL
1245583 (Tex. App.--Houston [1st Dist.] 2015, no pet.) 3
Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001) 10
Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587,
590 (Tex. App.--El Paso 2005, no pet.) 15
Sharm, Inc. v. Martinez, 900 S.W.2d 777, 782 (Tex. App.--
Corpus Christi 1995, no writ) 13
v
Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140
(Tex. App.--Dallas 2003, pet. denied) 3
Smith v. Altman, 26 S.W.3d 705, 709 (Tex. App.--Waco 2000,
pet. dism'd w.o.j.) 3
State v. Ross, 953 S.W.2d 748, 751 n. 4 (Tex. Cr. App. 1997) 8
Texas MRG, Inc. v. Schunicht, 2005 WL 1703617 at 3 (Tex.
App.--Waco 2005, no pet.) 5
Treadway v. Holder, 309 S.W.3d 780, 785 (Tex. App.--Austin
2010, pet. denied) 7
West Texas Peterbilt, Inc. v. Paso Del Norte Oil Co., 768
S.W.2d 380, 382 (Tex. App.--El Paso 1989, writ denied) 14
Willacy County Appraisal Review Bd. v. South Padre Land Co.,
767 S.W.2d 201, 202 (Tex. App.--Corpus Christi 1989,
no writ) 5
CONSTITUTIONS, RULES AND STATUTES
Tex. Const. art. I, §3 10
Tex. R. App. P. 33.1 7
U.S. Const. Amend. XIV 10
vi
vii
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' REPLY BRIEF
TO APPELLANT ALAMO HOME FINANCE'S
REPLY BRIEF
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES MARIO DURAN and MARIA DURAN, Appellees
in the above styled cause, and file their REPLY BRIEF TO
APPELLANT ALAMO HOME FINANCE REPLY BRIEF, continuing
to demonstrate said Appellant has judicially admitted the propriety
of service of process, and the patent unconstitutionality if this
Court accepts Appellant's invitation to rewrite the Rules.
1
TAX LENDER JUDICIALLY ADMITTED
PROPER SERVICE OF PROCESS
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).1 Before this Court, Tax
Lender first time asserts that it was not properly served. In their
initial brief, Home Owners pointed out such inconsistency, and how
the law prohibits switching horses in this manner. 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). The premise underlying Home Owners' argument was that
Tax Lender's assertion of proper service, Cl.R. 41, constitutes a
judicial admission, which it cannot now be repudiated before this
Court. Naturally, Tax Lender claims it ain't so; but Tax Lender is
wrong.
A judicial admission can arise from facts or legal positions
alleged in a pleading, an agreed statement of fact, a stipulation, or a
1Thus, Tax Lender is now attempting to spin the facts claiming that it did not
receive Second Amended Petition, or only received the initial petition.
2
formal declaration made in open court. Smith v. Altman, 26 S.W.3d
705, 709 (Tex. App.--Waco 2000, pet. dism'd w.o.j.). Thus, state-
ments by an attorney can constitute judicial admissions. Isern v.
Watson, 942 S.W.2d 186, 200–201 (Tex. App.--Beaumont 1997, writ
denied). As a result, statements in motions can constitute judicial
admissions. Newton v. SCI Texas Funeral Services, Inc., 2015 WL
1245583 at 4 (Tex. App.--Houston [1st Dist.] 2015, no pet.). The
effect of a judicial admission is twofold: it bars an admitting party
from later disputing his statement and relieves the opposing party
from the burden of proving the admitted fact. Gevinson v.
Manhattan Constr. Co., 449 S.W.2d 458, 467 (Tex. 1969); Sherman
v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140 (Tex. App.--
Dallas 2003, pet. denied).
A defendant can judicially admit the propriety of service of
process. See, e.g., First Nat. Bank of Bryan v. Peterson, 709 S.W.2d
276, 279 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.)
(statement that “[t]he writ was served on November 15, 1984”
constitutes a judicial admission of proper service and "in view of its
judicial admission that it was duly served, [defendant] is likewise
precluded from asserting that service was defective and will not
3
support the judgment."); Hurst v. A.R.A. Manufacturing Co., 555
S.W.2d 141, 142 (Tex. Civ. App.--Fort Worth 1977, writ ref'd n.r.e.).2
For example, in Metro A, LLC v. Polley, 2011 WL 4413233 (Tex.
App.--Fort Worth 2011, pet. denied), in their motion for new trial,
the defendants stated, "Plaintiff served Defendants on or about
September 17 and 18, 2008." Such statement constitutes a judicial
admission of proper service:
[Defendants]' motion for new trial made no
distinction between mere receipt and service of
the lawsuit and did not otherwise challenge
the validity of service. Had [Defendants] done
so, they would not have judicially admitted
proper service. But because [Defendants]
clearly and unequivocally admitted being
served on or about September 17 and 18,
2008, we hold that Defendants judicially
admitted and have waived their complaint
concerning the validity of service.
Id. at 3. The same result should be reached herein.
To avoid this result, Tax Lender claims that its amended
motion for new trial superseded its original motion for new trial,
and therefore such statements can no longer constitute judicial
admissions. Reply Brief, pp. 5-6. Home Owners would point out
2Accordingly,Tax Lender's assertion that that there is not one iota of legal
authority to support Home Owners' legal position, Reply Brief, p. 3, is
demonstrably false.
4
that even if this were correct, such statements nevertheless possess
value. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d
231, 234 (Tex. 2007). But Tax Lender's proposition is clearly
incorrect within the context of this case.
It is undisputed that Tax Lender filed its amended motion for
new trial 87 days after the trial court entered the judgment. Cl.R.
49, 51-52. In order to be effective, an amended motion for new trial
must be filed within thirty days after the judgment. Otherwise, the
amended motion for new trial is a nullity, i.e. it is ineffective for any
purpose. Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex. App.--
Austin 1992, no writ); Bernal v. Travelers Ins. Co., 469 S.W.2d 641,
642 (Tex. Civ. App.--Waco 1971, no writ). Such nullity extends to
any evidence attached to the motion or record in support thereof;
such items and evidence are not considered. Texas MRG, Inc. v.
Schunicht, 2005 WL 1703617 at 3 (Tex. App.--Waco 2005, no pet.);
Willacy County Appraisal Review Bd. v. South Padre Land Co., 767
S.W.2d 201, 202 (Tex. App.--Corpus Christi 1989, no writ).3 As the
Supreme Court has explained, "If the trial court ignores the tardy
3Thus, Tax Lender's assertion of invalidity only extends to preservation of error,
Reply Brief, p. 7, is wrong.
5
motion, it is ineffectual for any purpose." Moritz v. Preiss, 121
S.W.3d 715, 720 (Tex. 2003)(emphasis added). If an amended
motion for new trial is ineffective for any purpose, it is
ineffective for superseding judicial admissions. As a result, Tax
Lender's judicial admission stands.
TAX LENDER'S EFFORTS TO REWRITE
PRESERVATION OF ERROR RULES:
MISGUIDED AND UNCONSTITUTIONAL
In additional to judicially admitting that service of process was
proper, Cl.R. 41, Tax Lender had failed to point out any defects in
service in its motion for new trial, and therefore the trial court was
not appraised of any defects in service. Cl.R. 39-48. As a result,
any complaints concerning service of process are not properly
before this Court. Kuehnhoefer v. Welch, 893 S.W.2d 689, 694
(Tex. App.--Texarkana 1995, writ denied). To circumvent such
basic principles, Tax Lender rewrites the Texas Rules of Appellate
Procedure, claiming that he was not required to preserve error.
The Texas Rules of Appellate Procedure provide, "As a
prerequisite to presenting a complaint for appellate review, the
record must show that the complaint was made to the trial court by
6
a timely request, objection, or motion." Tex. R. App. P. 33.1. Rules
are interpreted like statutes, In re Onewest Bank, FSB, 430 S.W.3d
573, 577 (Tex. App.--Corpus Christi 2014, no pet.); thus courts
examine the plain language of the rule and construe it according to
its plain or literal meaning. Ford Motor Co. v. Garcia, 363 S.W.3d
573, 579 (Tex. 2012). Nothing contained in the plain text of Tex. R.
App. P. 33.1 exempts service of process complaints from
preservation of error requirements.
Similarly, omissions in a statute or rule are considered legally
significant; the omitted words and phrases are presumed to have
been purposely excluded. Balawajder v. Texas Dept. of Criminal
Justice Institutional Div., 217 S.W.3d 20, 27 n. 6 (Tex. App.--
Houston [1st Dist.] 2006, pet. denied). Consequently (and despite
any advisability), courts are forbidden from creating exceptions to
the plain language of statutes by engrafting omitted words. HEB
Ministries, Inc. v. Texas Higher Educ. Coordinating Board, 235
S.W.3d 627, 658 (Tex. 2007); Treadway v. Holder, 309 S.W.3d 780,
785 (Tex. App.--Austin 2010, pet. denied). As the Court of Criminal
Appeals has explained:
Courts have no power to legislate. It is [a]
7
court's duty to observe, not to disregard
statutory provisions. Courts can neither ignore
nor emasculate the statutes. Further, courts
have no power to create an exception to a
statute, nor do they have power to add to or
take from legislative pains, penalties and
remedies.
State v. Ross, 953 S.W.2d 748, 751 n. 4 (Tex. Cr. App. 1997). As a
result, this Court cannot rewrite Tex. R. Civ. P. 33.1 to exempt
normal service of process complaints.
Requiring service of process complaints to be asserted in
motions for new trial is consistent with the purposes underlying
Tex. R. App. P. 33.1. As explained in Home Owners' initial brief,
such rule fulfills three salutary purposes:
1. it insures that a trial court will be
provided an opportunity to prevent or
correct errors, thereby eliminating the
need for costly and time-consuming
appeal and retrial;
2. it guarantees that opposing counsel will
have a fair opportunity to respond to
complaints and correct any errors; and
3. it prevents litigants from second guessing
various tactical decisions which did not
achieve the desired result.
Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Cr. App. 2006);
Cross Marine, Inc. v. Lee, 905 S.W.2d 22, 25 (Tex. App.--Corpus
8
Christi 1995, writ denied); Tallabas v. Wing Chong, 72 S.W.2d 636,
637 (Tex. Civ. App.--Eastland 1934, no writ). Requiring service
defects to be asserted in a motion for new trial would mandate that
the trial court be informed and provided an opportunity to correct
any defects. Likewise, it would provide the plaintiff an opportunity
to correct the written record to demonstrate that service of process
was indeed proper (which everyone herein assumed until this
appeal). Third, it avoids the situation (which occurred herein)
wherein a defendant falls on his sword by admitting service is
proper and seeking mercy from the trial court, but then changes his
mind after his motion for new trial is denied.
But more importantly, both statutes and rules must be con-
strued to avoid constitutional infirmities. Barshop v. Medina
County Underground Water Conservation Dist., 925 S.W.2d 618,
629 (Tex. 1996).4 Yet, Tax Lender's construction exempting service
complaints from preservation of error requirements does exactly this.
Both the Texas Rules of Civil Procedure and the Texas Rules of
Appellate Procedure must comply with both the federal constitution
4Tax Lender's position that the federal and Texas Constitutions are just
meaningless pieces of paper which can be summarily disregarded is wrong.
9
and the Texas Constitution. See, Mississippi Chemical Corp. v.
Chemical Const. Corp., 444 F. Supp. 925, 933 (S.D. Miss. 1977);
Central Sec. Nat. Bank of Lorain County v. Royal Homes, Inc., 371
F. Supp. 476, 480 (E.D. Mich. 1974). Thus, at a minimum, a
rational basis must exist from exempting particular procedures
from general rules. U.S. Const. Amend. XIV; Tex. Const. art. I, §3.
In the case at bar, no rational basis exists for exempting service
complaints from general preservation of error requirements. As
previously noted, the purposes of such requirements apply with
equal force to service complaints as they do other with all other trial
court errors. Indeed, Tax Lender completely fails to explain why or
how its revisions to Tex. R. App. P. 33.1 comply with such
fundamental notions of equal protection.
Likewise, the due process clause of the federal constitution
and the due course of law clause of the Texas constitution mandate
notice. Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950); Perry v. Del Rio,
67 S.W.3d 85, 92 (Tex. 2001). Such constitutionally guaranteed
notice includes notice of what issues will be considered by the trial
court, and an opportunity to respond or otherwise correct any
10
claimed error. See, Bailey v. Kemper Cas. Ins. Co., 83 S.W.3d 840,
848 (Tex. App.--Texarkana 2002, pet. denied w.o.j.). But Tax
Lender's revision to Tex. R. App. P. 33.1 exception service
complaints enshrines lack of notice; unlike in all other situations,
the plaintiff would not receive notice of the alleged service defect as
it could be sprung for the first time on appeal. Likewise, he would
be deprived of an opportunity to correct the defect as permitted by
Tex. R. Civ. P. 118. Indeed, this case exemplifies constitutional
concerns; because of Tax Lender's judicial admission, Cl.R. 41,
Home Owners properly assumed service of process was proper, and
were clearly denied notice of any service of process complaints.
The cases relied upon by Tax Lender only provide questionable
support at best. The issue in Benefit Planners, L.L.P. v. RenCare,
Ltd., 81 S.W.3d 855 (Tex. App.--San Antonio 2002, pet. denied) was
whether the statements contained in the motion for new trial
constituted judicial admissions. Considering that the opinion failed
to cite (much less distinguish) either First Nat. Bank of Bryan v.
Peterson, supra or Hurst v. A.R.A. Manufacturing Co., supra, its
analysis cannot be taken seriously. Id. at 861. The case of Garduza
v. Castillo, 2014 WL 2921650 (Tex. App.--Dallas 2014, no pet.)
11
represents judicial ipse dixit; no substantive analysis was presented
to justify the court's conclusion that a defaulting defendant could
hoodwink both the trial court and the plaintiff by asserting service
of process complaints for the first time on appeal. While Lee
Hoffpauir, Inc. v. Kretz, 431 S.W.3d 776, 780 (Tex. App.--Austin
2014, no pet.) provided more substantive analysis, it nevertheless
failed to address either the express wording of Tex. R. App. P. 33.1
or the policies which undergird preservation of error requirements.
None of Tax Lender’s authorities have addressed the constitutional
infirmities resulting from exempting service complaints from general
preservation of error requirements. Naturally, Home Owners would
point out that "the decisions of sister appellate courts may be
persuasive but are not binding on this Court." Dowell v. Quiroz,
2015 WL 1544685 at 4 n. 6 (Tex. App.--Corpus Christi 2015, no
pet.).
TAX LENDER REQUIRED TO PRESENT EVIDENCE
CONCERNING REGISTERED AGENT’S CONDUCT
In its motion for new trial, Tax Lender failed to present any
evidence of what its registered agent did, and how its conduct did
not amount to conscious indifference. Cl.R. 39-48. In their initial
12
brief, Home Owners pointed out that such omission is fatal: if the
defaulting defendant fails to present evidence from his agents who
were involved with the receipt of citation and the failure to answer,
it has failed to satisfy its Craddock burden. Sharm, Inc. v.
Martinez, 900 S.W.2d 777, 782 (Tex. App.--Corpus Christi 1995, no
writ); Memorial Hospital System v. Fisher Ins. Agency, Inc., 835
S.W.2d 645, 652 (Tex. App.--Houston [14th Dist.] 1992, no writ);
Cornerstone Alternatives, Inc. v. Patterson Oldsmobile-GMC-Toyota,
Inc., 696 S.W.2d 702, 703 (Tex. App.--Fort Worth 1985, no writ). In
response, Tax Lender claims that such evidence is only required
when the agent is entrusted with the filing of an answer; and
because it never entrusted its registered agent with filing an
answer, it could blithely fail to present evidence. Again, Tax Lender
is wrong.
To demonstrate the fallacy of Tax Lender’s position consider
the following hypothetical:
ABC Homestead Loan, LLC retains Dodgeball
Corporate Services to be its registered agent
for service of process. A victimized home
owner sues ABC Homestead, and attempts to
serve the petition on Dodgeball Corporate. But
true to their name, Dodgeball Corporate
dodges service. It refuses to answer the front
13
door for the process server. It refuses to sign
the certified mail green card when the petition
and citation are sent, and refuses to claim the
certified mail from the post office. And when
the citation and petition are attached to
Dodgeball Corporate’s front door, its manager
tears them down and runs them through the
shredder. The petition and citation are never
forwarded to ABC Homestead.
Under Tax Lender’s legal analysis, ABC Homestead demonstrated
lack of conscious indifference; after all, ABC Homestead itself did
not run the citation and petition through the shredder. However,
Texas law’s concept of conscious indifference is not so limited: "[I]n
determining whether one acted intentionally or with conscious
indifference, we examine the knowledge and acts of the party who
failed to appear. And, included within that scope are the acts of both
the actual party and its agent; in other words, it must be shown that
both the party and its agent, if any, are free of conscious
indifference." Aim-Ex Industry, Inc. v. Slover, 2010 WL 2136599 at
1 (Tex. App.--Amarillo 2010, pet. denied)(emphasis added); accord,
West Texas Peterbilt, Inc. v. Paso Del Norte Oil Co., 768 S.W.2d
380, 382 (Tex. App.--El Paso 1989, writ denied).
Such requirement arises from a defaulting defendant's overall
Craddock burden. To demonstrate lack of conscious indifference,
14
the defaulting defendant must adequately explain the mistake.
Aim-Ex Industry, Inc. v. Slover, supra at 2. Naturally, if the citation
and petition were delivered to a registered agent, someone must
explain what the registered agent did after receipt of the citation5;
and failure to present such evidence results in failure to satisfy the
defaulting defendant's Craddock burden. Scenic Mountain Medical
Center v. Castillo, 162 S.W.3d 587, 590 (Tex. App.--El Paso 2005,
no pet.). In the case at bar, Tax Lender has failed to explain what
its registered agent did after receipt of Home Owner’s second
amended petition; Tax Lender’s registered agent failed to provide an
affidavit.6 Cl.R. 39-48. Accordingly, Tax Lender failed to satisfy its
burden.
HARMLESS ERROR FAILS TO DEMONSTRATE
MERITORIOUS DEFENSE
In every appeal, a judgment must be affirmed on any ground
contained in the record, Cincinnati Life Ins. Co. v. Cates, 927
S.W.2d 623, 626 (Tex. 1996), and therefore the appellant must
5Contrary to Tax Lender, conscious indifference can be found as a result of the
registered agent's conduct. See, e.g., Katin Corp. v. Loesch, 2007 WL 2274835
(Tex. App.--Austin 2007, pet. denied).
6Tax Lender has speculated what its registered agent did, but such speculation
does not constitute affirmative evidence.
15
attack every grounds which supports the judgment. Failure to do
so results in summary affirmance of the trial court's judgment.
Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.--Houston [14th
Dist.] 1998, no writ). Naturally, the same principle applies to default
judgments; the defaulting defendant must attack all causes of
action on which the judgment is based, Equinox Enterprises, Inc. v.
Associated Media, Inc., 730 S.W.2d 872, 876 (Tex. App.--Dallas
1987, no writ); and if premised on an affirmative defense, must
present evidence of each element of such affirmative defense. Hicks
v. Flores, 900 S.W.2d 504, 506-07 (Tex. App.--Amarillo 1995, no
writ). Tax Lender failed to satisfy this burden. Cl.R. 39-48.
Because it failed to satisfy this burden, Tax Lender claims it
was not required to, that it was only required to prove a different
result upon trial. Unless the defaulting defendant attacks damages,
such different result test still requires attacking every cause of
action; if only one cause of action is attacked, the judgment will
remain the same, because it can be premised on alternative
grounds. Cf., Lewis v. Adams, supra.
CONCLUSION AND PRAYER
The Dodgeball Corporate hypothetical presented herein is not
16
far off the mark from the real world; every day defendants treat
lawsuits like trifles which can safely be ignored. It clearly happened
in the case at bar; Tax Lender does not even deign to explain what
its registered agent did with Home Owners’ Second Amended
Petition. Cl.R. 39-48. But lawsuits are not trifles, and the rules
should be interpreted to permit defendants to treat them as trifled.
Accepting Tax Lender’s arguments herein will only lead to other
defendants doing so in the future.
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: __/s/_Keith C. Livesay___________
KEITH C. LIVESAY
State Bar. No. 12437100
17
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
foregoing brief was generated using Word 2007 using 14 point font
and contains 3411 words.
By: __/S/__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 24th day of April, 2015.
By: __/s/__Keith C. Livesay_______
KEITH C. LIVESAY
18