in Re RPH Capital Partners, LP ( 2016 )


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  •                                                                                           ACCEPTED
    04-16-00424-CV
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    8/2/2016 11:56:14 AM
    KEITH HOTTLE
    CLERK
    No. 04-16-00424-CV
    IN THE FOURTH
    COURT OF APPEALS AT
    SAN ANTONIO, TEXAS
    In re RPH CAPITAL PARTNERS, LP,
    Relator
    Original Proceeding from the 57th Judicial District Court, Bexar County, Texas,
    Cause No. 2016-CI-05251, the Honorable Antonia Arteaga, Presiding
    REPLY IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
    Christopher D. Kratovil                   Phyllis Speedlin
    Texas Bar No. 24027427                    Texas Bar No. 18906100
    Email: ckratovil@dykema.com               Email: pspeedlin@dykema.com
    Kristina M. Williams                      DYKEMA COX SMITH
    Texas Bar No. 24078303                    Weston Centre
    Email: kwilliams@dykema.com               112 E. Pecan Street
    Adam Nunnallee                            Suite 1800
    Texas Bar No. 24057453                    San Antonio, TX 78205
    Email: anunnallee@dykema.com              (210) 554-5500 – Telephone
    DYKEMA COX SMITH                          (210) 226-8395 – Facsimile
    1717 Main Street, Suite 4200
    Dallas, Texas 75201
    (214) 462-6400 – Telephone
    (214) 462-6401 – Facsimile
    Andy Taylor
    State Bar No. 19727600
    Email: ATaylor@AndyTaylorLaw.com
    ANDY TAYLOR & ASSOCIATES, P.C.
    2668 Highway 36S, #288
    Brenham, Texas 77833
    (713) 222-1817 – Telephone
    (713) 222-1855 – Facsimile
    ORAL ARGUMENT NOT REQUESTED
    TABLE OF CONTENTS
    ARGUMENT IN REPLY ..........................................................................................1
    I.      INTRODUCTION AND SUMMARY OF ARGUMENT IN REPLY. .....................1
    II.     THE PERIDOT PARTIES WAIVED THEIR RULE 245 ARGUMENT. ..............4
    A.       This Court’s November 2015 holding in Templeton controls
    and vitiates the Peridot Parties’ Rule 245 argument. ..................4
    B.       The restricted appeal case law invoked by the Peridot
    Parties’ to escape Templeton is inapplicable. .............................8
    III.    THE PERIDOT PARTIES CONTINUE TO OFFER NO EXPLANATION FOR
    THEIR FAILURE TO APPEAR FOR TRIAL, AND THIS IS FATAL TO THEIR
    BILL OF REVIEW. ..................................................................................12
    A.       This is a Bill of Review, Not a Motion for New Trial. .............12
    B.       Even if Analyzed as a Motion for New Trial, the Peridot
    Parties Still Failed to Carry their Burden of Proof for
    Summary Judgment, Failing to Present Any Evidence At
    All on Three Different Elements...............................................14
    IV.     EQUITY AND SOUND PUBLIC POLICY PRECLUDE GIVING THE
    PERIDOT PARTIES A “MULLIGAN” AND SETTING ASIDE THE
    DEFAULT JUDGMENT ON THIS RECORD.................................................21
    CONCLUSION AND PRAYER .............................................................................23
    CERTIFICATE OF COMPLIANCE .......................................................................26
    CERTIFICATE OF SERVICE ................................................................................27
    CERTIFICATION AND VERIFICATION.............................................................28
    i
    TABLE OF AUTHORITIES
    CASES
    Abend v. Fed. Nat’l Mortg. Ass’n, 
    466 S.W.3d 884
         (Tex. App.—Houston [14th Dist.] 2015, no pet) ............................................7
    Alexander v. Lynda’s Boutique, 
    134 S.W.3d 845
          (Tex. 2004) ......................................................................................................9
    Balogh v. Ramos, 
    978 S.W.2d 696
         (Tex. App.—Corpus Christi 1998, pet. denied) ........................................7, 16
    Chapa v. Wirth, 
    343 S.W.2d 936
         (Tex. App.—Eastland 1961, no writ) ............................................................13
    Conrad v. Orellana, 
    661 S.W.2d 309
         (Tex. App.—Corpus Christi 1983, no writ) ..................................................13
    Craddock v. Sunshine Bus Lines, Inc., 
    133 S.W.2d 124
         (Tex. 1939) ............................................................................................ passim
    Custom-Crete, Inc. v. K-Bar Servs., 
    82 S.W.3d 655
    , 659
    (Tex. App.--San Antonio 2002, no pet.) ................................................. 11, 17
    Dolgencorp of Texas, Inc. v. Lerma, 
    288 S.W.3d 922
         (Tex. 2009) ....................................................................................................18
    Eastin v. Dial, 
    288 S.W.3d 491
          (Tex. App.—San Antonio 2009, pet. denied)............................................2, 12
    In re Parker, 
    20 S.W.3d 812
           (Tex. App.–Texarkana 2000, no pet.).................................................... passim
    In the Interest of Sadberry, No. 06-01-00098-CV, 2009 Tex. App.
    LEXIS 3000, *7 (Tex. App.—Texarkana April 30, 2002, pet. denied) ........11
    Ivey v. Ivey, No. 05-07-01311-CV, 2009 Tex. App. LEXIS 3207, *7
    (Tex. App.—Dallas May 12, 2009, pet. denied) ...........................................11
    Padilla v. Comm’n for Lawyer Discipline, 
    87 S.W.3d 624
          (Tex. App.—San Antonio 2002, pet. Denied) .................................................7
    Peralta v. Heights Med. Ctr., 
    485 U.S. 80
    (1988) ...................................................12
    ii
    Petro-Chemical Transp., Inc. v. Carroll, 
    514 S.W.2d 240
          (Tex. 1974) ............................................................................................ passim
    Sutherland v. Spencer, 
    376 S.W.3d 752
          (Tex. 2012) ............................................................................................. 15, 18
    Templeton Mortg. Corp. v. Poenisch, No. 04-15-00041-CV, 2015 Tex. App.
    LEXIS 11813, *5 (Tex. App.—San Antonio Nov. 18, 2015, no pet.) ........ passim
    RULES
    Tex. R. Civ. P. 245 ........................................................................................... passim
    TEX. R. APP. P. 26.1(c) ...............................................................................................8
    iii
    ARGUMENT IN REPLY
    This Court should grant Relator RPH Capital Partners, LP’s (“RPH”)
    Petition for Writ of Mandamus to correct the Honorable Antonia Arteaga’s (“Judge
    Arteaga” or the “District Court”) clear abuse of discretion in awarding summary
    judgment to Peridot Joint Venture, Millennium Exploration Company, LLC, and
    Richard Monroy (“the Peridot Parties”), and thereby granting their equitable Bill of
    Review and setting aside the Default Judgment.
    I.    Introduction and Summary of Argument in Reply.
    The summary judgment evidence presented in the District Court
    conclusively established that the Peridot Parties’ lead counsel in Cause Number
    2015-CI-17142, RPH Capital Partners, LP v. Peridot Joint Venture, et al (“the
    Underlying Proceeding”) was served with and otherwise received notice—both
    actual and constructive—of the trial date in the Underlying Proceeding. Despite
    receiving this notice of the trial setting, counsel for the Peridot Parties inexplicably
    failed to appear or to move for a continuance of the trial date or to otherwise object
    to it. Remarkably, the Peridot Parties’ Response to RPH’s Petition for Writ of
    Mandamus (the “Response”) still does not offer any coherent explanation or
    excuse for Plaintiffs’ failure to appear for a trial of which they had notice.
    Instead of attempting to explain why the Peridot Parties failed to appear at
    the December 14, 2015 trial setting, the Peridot Parties’ Response instead focuses
    1
    heavily on the purported impropriety of that trial setting under Texas Rule of Civil
    Procedure 245 (“Rule 245”), which mandates a minimum of 45 days’ notice of a
    trial. However, by failing to move to continue or to assert any objection to a trial
    setting of which they had 38 day actual notice, the Peridot Parties waived their
    argument under Rule 245. Contrary to the Response, Due Process only requires
    that the Peridot Parties had reasonable notice of the trial date—which they
    received—and were given the opportunity to object to that date, which they did not
    do.   Neither Due Process nor Rule 245 gives a party—particularly a party
    represented by capable counsel from a large and prestigious Dallas law firm—
    license to “sit on its hands” for 38 days and flatly ignore a trial setting that it has
    received multiple notices of. In short, Rule 245 is neither self-executing nor
    unwaivable, and desperate cries of “Due Process” should not shield a party or its
    law firm when they inexplicably ignore a trial setting that they had reasonable
    notice of.
    The Peridot Parties’ ultimate relief should come from the counsel who failed
    them, not from an equitable bill of review where they cannot possibly satisfy—and
    certainly have not satisfied on this summary judgment record—the “unmixed with
    any negligence or fault” element of the bill of review test.1
    1
    See Petro-Chemical Transp., Inc. v. Carroll, 
    514 S.W.2d 240
    , 244-46 (Tex. 1974); Eastin v.
    Dial, 
    288 S.W.3d 491
    , 497-98 (Tex. App.—San Antonio 2009, pet. denied) (holding that a bill of
    review petitioner must plead and prove that the taking of the default judgment was “unmixed
    with any negligence or fault of his own.”).
    2
    The Peridot Parties know they can never satisfy the legal standard for a Bill
    of Review, and so they instead urge this Court to apply the more lenient standard
    that governs a motion for new trial. The Peridot Parties are incorrect that the
    Craddock standard for a motion for new trial should apply here, as their failure to
    monitor ongoing and hotly contested litigation resulted not only in their failure to
    appear for trial but also their subsequent failure to timely file a motion for new
    trial. But even if the Peridot Parties’ still unexplained failure to appear for trial is
    evaluated not as an equitable bill of review but rather under the more lenient
    Craddock standard, the Peridot Parties, on this summary judgment record, still
    failed to establish three of the required elements for a new trial. First, and as
    noted, the Peridot Parties failed to present any evidence as to why they failed to
    appear for a trial setting of which they had notice, making it impossible for them to
    establish that their still unexplained abandonment of this case was something other
    than “conscious indifference.” Second, the Peridot Parties also failed to offer any
    evidence as to what their “meritorious defense” to RPH’s underlying claims may
    be. Third and finally, the Peridot Parties failed to present any evidence that RPH
    would not suffer prejudice as the result of the setting aside of the Default
    Judgment, and the only evidence in the record shows that RPH will suffer
    prejudice—in the form of substantial attorneys’ fees incurred taking and defending
    3
    the Default Judgment, as well as the substantial delays endured in the resolution of
    their underlying claims—if the Default Judgment is set aside.
    In the final measure, much more is required in order to secure an equitable
    bill of review than is in the record here. The Peridot Parties’ counsel ignored a
    trial setting, and the Peridot Parties’ remedy is an action against their counsel in the
    Underlying Proceeding, Kane Russell, not an equitable bill of review. Stated
    another way, there is simply no way the Peridot Parties can satisfy the “unmixed
    with any negligence or fault” requirement for a bill of review.           Against this
    backdrop and on this record, the District Court abused its discretion in granting
    summary judgment in favor of the Peridot Parties and against Relator RPH, and
    thereby granting the Bill of Review and setting aside the Default Judgment. This
    Court should correct that clear abuse of discretion via mandamus, and should reject
    the Peridot Parties’ Bill of Review.
    II.   The Peridot Parties Waived Their Rule 245 Argument.
    A.     This Court’s November 2015 holding in Templeton controls and
    vitiates the Peridot Parties’ Rule 245 argument.
    Judge Arteaga erred in granting summary judgment in favor of the Peridot
    Parties because, as held by this Court just nine months ago, “a party waives its
    Rule 245 complaint by failing to take action when it ‘receives some, but less than
    forty-five days’, notice.’” Templeton Mortg. Corp. v. Poenisch, No. 04-15-00041-
    CV, 2015 Tex. App. LEXIS 11813, *5 (Tex. App.—San Antonio Nov. 18, 2015,
    4
    no pet.) (emphasis added). Templeton confirms that Rule 245 can be waived by a
    party’s inaction. Contrary to the Peridot Parties’ argument, in Templeton this
    Court explicitly and expressly ruled “that Templeton failed to preserve its Rule
    245 notice complaint” because “despite receiving notice, Templeton neither
    appeared at the hearing nor raised any pretrial objection to a lack of sufficient
    notice under Rule 245.” 
    Id. at *5
    (emphasis added; citations omitted). This
    Court’s language could not be more clear, but the Peridot Parties choose to avoid
    this core section of the Templeton holding in their Response.
    Instead of engaging with Templeton’s on-point core holding from just last
    November, the Peridot Parties instead focus upon this Court’s alternate and
    secondary reasons for upholding the trial court’s default judgment in that case. 
    Id. at *5
    -6. In addition to finding that Rule 245 can be waived by a party’s inaction,
    Templeton also offered alternative reasons for affirming the default judgment in
    that case, noting that “even if Templeton had preserved this [Rule 245] complaint
    for review, we hold that does not entitle Templeton to a reversal.” 
    Id. at *6.
    But
    the Peridot Parties misunderstand the relevance of these alternative grounds for
    affirmance of the default judgment in Templeton. Arguing against Templeton’s
    application to this case, the Peridot Parties incorrectly state “[t]he court made clear
    in Templeton that Rule 245 did not apply to its facts because at the time of the
    notice in that case, Templeton’s pleadings had been stricken and it was no longer a
    5
    contested case.” (Resp. at 4). This is incorrect, as this Court recognized that the
    Templeton defendant was given notice of trial, albeit less than the 45 days’ notice
    required by Rule 245. See Templeton, 2015 Tex. App. LEXIS 11813, at *4-5.
    Contrary to the Peridot Parties’ argument, the Templeton trial court did not
    strike the defendant’s pleadings prior to notice of trial being given, but struck the
    defendant’s pleadings on the day of the default judgment hearing, and in response
    to the defendants failure to appear.     
    Id. at *2-3.
    As such, Templeton was a
    contested case at the time notice of trial was served on the defendant, but not at the
    time the default judgment was entered. Just so here.
    In short, this Court’s offering two alternate reasons in Templeton for
    affirming the default judgment other than waiver of Rule 245 notice does not make
    that precedent any less dispositive of the waiver issue in the current case. Here, as
    in Templeton, the Peridot Parties “receive[d] some, but less than forty-five days’,
    notice[,]” and waived their right to make any objection under Rule 245 by failing
    to appear. 
    Id. at *5
    . Templeton controls and should have led the District Court to
    reject the Peridot Parties’ Rule 245 argument and to deny their equitable bill of
    review.
    Nor is the core holding of Templeton mere “dicta” as the Peridot Parties now
    suggest. Instead, Templeton stands squarely for the proposition that the 45-day
    notice period of Rule 245 is not a constitutional requirement, and that all that is
    6
    required to satisfy Due Process is reasonable notice. Templeton is hardly alone.
    For example, Texarkana Court of Appeals has similarly noted that “[a] party could,
    in theory, waive a complaint by failing to take action when the party receives
    some, but less than forty-five days’, notice.” In re Parker, 
    20 S.W.3d 812
    , 818
    (Tex. App.–Texarkana 2000, no pet.). The Corpus Christi Court of Appeals has
    offered equivalent analysis, concluding that reasonable notice is all that is required
    to satisfy Due Process. See Balogh v. Ramos, 
    978 S.W.2d 696
    , 699 (Tex. App.—
    Corpus Christi 1998, pet. Denied). Contrary to the Peridot Parties’ argument,
    while Templeton is the most recent and most relevant decision, there is ample
    Texas authority for the proposition that Due Process is fully satisfied by reasonable
    notice trial, and that the 45-day requirement of Rule 245 is not somehow
    synonymous with Due Process. See also Abend v. Fed. Nat’l Mortg. Ass’n,
    
    466 S.W.3d 884
    , 885 (Tex. App.—Houston [14th Dist.] 2015, no pet); Padilla v.
    Comm’n for Lawyer Discipline, 
    87 S.W.3d 624
    , 626 (Tex. App.—San Antonio
    2002, pet. denied).
    Here, as fully established in RPH’s Petition, there can be no doubt that the
    Peridot Parties received not only reasonable notice of the trial setting, but multiple
    forms of reasonable notice starting 38 days before the trial setting. First, the TI
    Order itself—which Mr. McClure indisputably received—recited the trial date of
    December 14, 2015. (M.R. 41-46). Second, Mr. McClure drafted the Protective
    7
    Order, which specifically referenced and incorporated the TI Order containing the
    trial date. (M.R. 530-36). Third, Mr. McClure received yet another form of notice
    of the trial setting, as RPH served the Peridot Parties with documents in the Dallas
    Proceeding containing the Bexar County trial date.          (M.R. 440, 520, 549).
    Consistent with Templeton, In re Parker, and the other foregoing authorities, these
    multiple reasonable notices—the first of which was received by Mr. McClure 38
    days prior to the trial setting—satisfied Due Process.
    B.     The restricted appeal case law invoked by the Peridot Parties’ to
    escape Templeton is inapplicable.
    Desperate to escape this Court’s nine month old and directly on-point
    holding in Templeton, the Peridot Parties parade a series of restricted appeal cases
    for the general proposition that a default judgment can be set aside on restricted
    appeal if the restricted appellant did not received adequate notice of the trial under
    Rule 245. But the cases invoked by the Peridot Parties are inapplicable for several
    reasons.
    1. This is a Bill of Review, Not a Restricted Appeal.
    First, this is not a restricted appeal but rather an equitable bill of review.
    Indeed, although they acknowledge that they received notice of the Default
    Judgment well within the six month window to file a restricted appeal under TEX.
    R. APP. P. 26.1(c), the Peridot Parties failed to file a restricted appeal.       An
    equitable bill of review and a restricted appeal are governed by very different legal
    8
    standards. Compare TEX. R. APP. P. 26.1(c) and Alexander v. Lynda’s Boutique,
    
    134 S.W.3d 845
    , 848 (Tex. 2004) (restricted appeal standard) with Petro-Chemical
    Transp., Inc. v. Carroll, 
    514 S.W.2d 240
    , 244-46 (Tex. 1974) (bill of review
    standard). The record is unclear as to why the Peridot Parties filed a bill of
    review—a new lawsuit in which the burden is on them as the bill or review
    plaintiffs—rather than pursuing the less difficult remedy afforded by restricted
    appeal.
    Importantly, and in contrast to a bill of review, the appellant in a restricted
    appeal is not required to show that the default judgment was “unmixed with any
    negligence or fault of his own.” 
    Id. In contrast
    to a restricted appeal, the plaintiff
    in a bill of review action—here, the Peridot Parties—must plead and prove that the
    taking of the default judgment was “unmixed with any negligence or fault of his
    own.” 
    Id. Thus, in
    this bill of review proceeding, the negligence of the Peridot
    Parties and their counsel in failing to take any action in response to a trial setting
    of which they had reasonable—38 days—notice is the central inquiry before the
    Court in this bill of review. Perhaps the result here would be different if the
    Peridot Parties had filed a restricted appeal—as they had the option to—but they
    did not. As such, the bill of review standard applies instead of the restricted appeal
    standard, and the Peridot Parties have failed to offer evidence that the Default
    9
    Judgment did not result from the fault of their counsel, Mr. McClure and his large
    Dallas law firm Kane Russell.
    2. Due Process is Satisfied by Reasonable Notice of Trial.
    Second, and in sharp contrast to the litany of restricted appeal cases invoked
    in the Response, the Peridot Parties are not a pro se party to a small divorce in
    which they received no notice or minimal notice of trial. Instead, the Peridot
    Parties are participants in sophisticated commercial litigation in which they are
    represented by a large and prestigious law firm. Consistent with this Court’s
    holding in Templeton, it simply cannot be the law that a sophisticated litigant
    represented by capable and experienced counsel has a right to “sit on its hands”
    and do nothing where, as here, it receives reasonable notice of a trial setting—
    albeit slightly less than the full 45 days required by Rule 245. As the Response
    reluctantly concedes, the Peridot Parties received at least 38 days’ notice of the
    trial setting—yet they nonetheless failed to move to continue the trial date, object
    to the setting, or show up.
    Contrary to the central argument made by the Peridot Parties in the
    Response, Due Process is fully satisfied where, as here, a party receives reasonable
    notice of trial. In re Parker, 
    20 S.W.3d 812
    , 818 (Tex. App.—Texarkana 2000, no
    pet.) (holding that “[d]ue process requires only actual or constructive notice
    reasonable under the circumstances.”); see also, e.g., Ivey v. Ivey, No. 05-07-
    10
    01311-CV, 2009 Tex. App. LEXIS 3207, *7 (Tex. App.—Dallas May 12, 2009,
    pet. denied) (citing In re Parker); In the Interest of Sadberry, No. 06-01-00098-
    CV, 2009 Tex. App. LEXIS 3000, *7 (Tex. App.—Texarkana April 30, 2002, pet.
    denied) (“Due process only requires reasonable notice under the circumstances.”)
    (citing, e.g., Peralta v. Heights Med. Ctr., 
    485 U.S. 80
    (1988)). Indeed, “Rule 245
    provides a notice requirement that goes beyond the requirements of due process.”
    
    Id. at 818;
    see also Custom-Crete, Inc. v. K-Bar Servs., 
    82 S.W.3d 655
    , 659 (Tex.
    App.—San Antonio 2002, no pet.). Consistent with Templeton, and in contrast to
    central argument in the Response, neither Due Process nor Rule 245 affords parties
    the sweeping right to “sit on their hands” in response to a trial setting of which
    they have reasonable notice. This principle is all the more true where, as here, the
    party improperly “sitting on its hands” is represented by sophisticated counsel from
    a large law firm.
    To reiterate, none of the cases invoked by the Peridot Parties in their
    Response are bill of review cases where the party challenging a post-answer
    default judgment had reasonable notice of the trial setting—albeit less than the 45
    days’ notice required by Rule 245. As such, the Peridot Parties’ attempt escape
    this Court’s controlling and only 9-month old precedent in Templeton fails. In the
    final measure, this Court’s decision last year in Templeton makes clear that where,
    11
    as here, a party had some notice of a trial setting—albeit less notice than required
    by Rule 245—there is no right to sit on ones’ hands and fail to appear or object.
    III.   The Peridot Parties Continue to Offer No Explanation for their Failure
    to appear for Trial, and this is Fatal to their Bill of Review.
    A.     This is a Bill of Review, Not a Motion for New Trial.
    Receiving some but less than forty-five days’ notice of trial does not relieve
    the Peridot Parties from meeting the elements required a bill of review. Foremost
    among these elements is that the Default Judgment was taken “unmixed with any
    negligence or fault” of the Peridot Parties or their counsel.          Petro-Chemical
    
    Transp., 514 S.W.2d at 244-46
    ; 
    Eastin, 288 S.W.3d at 497-98
    . Insofar as Rule 245
    does not convey the right to simply ignore a trial setting that gives reasonable, but
    less than 45 days, notice of trial, the Peridot Parties can never satisfy this element
    of the bill of review test Accordingly, the Peridot Parties have no choice but to
    urge the application of an entirely different legal standard, claiming that their effort
    to set aside the Default Judgment should not be reviewed as a bill of review but
    rather as a motion for new trial under Craddock v. Sunshine Bus Lines, Inc.,
    
    133 S.W.2d 124
    (Tex. 1939).
    The Peridot Parties are wrong, as their counsel received but ignored notice
    of the trial, did not show up for that trial, and evidently did not check the docket
    sheet for the case for multiple months after the trial setting, thereby missing the
    entry of the Default Judgment and missing the chance to file a motion for new trial
    12
    or appeal. Stated another way, the only thing that prevented the Peridot Parties
    from filing a timely motion for new trial was their extended failure to monitor an
    active and once hotly contested case following a trial setting of which they had
    notice. The Peridot Parties claim that the clerk failed to send them postcard
    notification of the entry of Default Judgment against them, but this is ultimately an
    irrelevant distraction from their own failure to participate in and monitor the case;
    having received reasonable notice of the trial setting, the Peridot Parties not only
    failed to object or participate in trial, they also failed to follow developments in the
    case after the trial setting they ignored. In other words, the Peridot Parties contend
    that the clerk’s purported failure to send them a postcard somehow released their
    counsel from their continuing obligation, as a matter of law, to monitor the
    Underlying Proceeding. See Conrad v. Orellana, 
    661 S.W.2d 309
    (Tex. App.—
    Corpus Christi 1983, no writ); Chapa v. Wirth, 
    343 S.W.2d 936
    (Tex. App.—
    Eastland 1961, no writ). This cannot be the law, as attorneys cannot cavalierly
    transfer their most fundamental professional obligations to court staff. The Peridot
    Parties’ effort to set aside the Default Judgment must therefore be analyzed under
    the bill of review standard, not the Craddock test for a motion for new trial.
    13
    B.     Even if Analyzed as a Motion for New Trial, the Peridot Parties
    Still Failed to Carry their Burden of Proof for Summary
    Judgment, Failing to Present Any Evidence At All on Three
    Different Elements.
    But even under the Peridot Parties’ own theory of the case, they must still
    satisfy the Craddock factors for a motion for new trial. Yet, having argued that
    they must meet the standard for a motion for new trial, the Peridot Parties failed to
    present any summary judgment evidence before Judge Arteaga on multiple
    Craddock factors. As the party seeking to set aside the Default Judgment and
    moving for (and receiving) summary judgment, the Peridot Parties had the burden
    of proof on each of the Craddock factors, and the Peridot Parties’ Response fails to
    show how they did this for each factor.
    1.    The Peridot Parties failed to prove a lack of “conscious
    indifference.”
    First, in their Response, the Peridot Parties do not direct the Court to any
    evidence in the summary judgement evidence demonstrating that their still-
    unexplained failure to appear for trial was not intentional or the result of
    “conscious indifference.” On the contrary, the Peridot Parties’ failure to appear for
    a trial setting of which they indisputably had notice remains entirely unexplained.
    Indeed, the only explanation the Peridot Parties offered to the District Court on the
    reasons for their failure to appear is their lead counsel’s (Mr. McClure of the Kane
    Russell firm in Dallas) following statement: “I did not see the inclusion of
    14
    December 14, 2015 trial setting in the signed order and the date was not docketed
    by me or my firm.”        (MR 655, 661).       The Peridot Parties offer no better
    explanation to this Court.    (Resp. at 22).    This cursory and carefully-worded
    statement sheds absolutely no light on why the Peridot Parties failed to appear for a
    trial setting of which they had both actual and constructive notice, including
    multiple forms of written notice. See Sutherland v. Spencer, 
    376 S.W.3d 752
    , 755
    (Tex. 2012) (“[T]he critical question in any default judgment [is]: ‘Why did the
    defendant not appear?’”). “[F]orgetfulness alone is [not] sufficient to satisfy the
    first Craddock element.” 
    Id. Based on
    the limited summary judgment evidence
    submitted by the Peridot Parties, there is no evidence that their failure to appear
    was, at best, the product of Mr. McClure’s “forgetfulness.” As a matter of Texas
    law, that is simply not enough. 
    Id. Moreover, the
    Peridot Parties not only failed to appear for trial on December
    14, 2015, they also “went dark” for an extended period prior to that trial setting. In
    their Response, the Peridot Parties fault RPH’s lead trial counsel, Andy Taylor,
    for informing Judge Arteaga at the December 14 trial setting that he had received
    no communications from them in 30 days, but it had been 24 days since he
    received any communications—written or verbal—from counsel to the Peridot
    Parties. (M.R. 438-42). Moreover, the Peridot Parties continued to remain “dark”
    for months after the entry of the Default Judgment, reemerging from their still
    15
    unexplained absence from the case only after RPH commenced enforcement and
    collection efforts in March 2016. In short, the Peridot Parties did not just miss a
    trial setting of which they had notice, as they also ignored this case for extended
    periods both before and after that trial setting.
    The insufficiency of the Peridot Parties’ explanation of and evidence for
    failing to appear becomes even more apparent when comparing treatment of
    similar situations by Texas courts of appeal. In Balogh, the Corpus Christi Court
    of Appeals upheld the denial of a motion for new trial following a post-answer
    default judgment because the defendant failed to demonstrate his failure to attend
    trial was not intentional or the result of conscious indifference. Balogh v. Ramos,
    
    978 S.W.2d 696
    , 699 (Texas App.—Corpus Christi 1998, pet. Denied).                The
    Corpus Christi Court of Appeals noted the defendant provided affidavit evidence
    that he had no actual notice of the trial setting because he did not receive the
    docket control order, but offered no explanation for his failure to appear at a docket
    control conference where the trial date was set, did not deny receiving the
    plaintiff’s request for a docket control conference, and did not contradict the
    clerk’s notes that notice of the conference where the trial date was set was mailed
    to the defendant. 
    Id. Here, the
    Peridot Parties’ conduct is even more egregious
    than in Balogh, as the Peridot Parties admit receiving notice of the trial setting
    16
    contained in the TI Order but, for reasons left entirely unexplained, they failed to
    act.
    Similar to the defendant in Balogh, the Peridot Parties also received notice
    of the trial setting in other ways because Mr. McClure drafted the Protective Order,
    which specifically references and incorporates the TI Order containing the trial
    date. The Peridot Parties’ argument in response borders on bizarre: they claim that
    McClure cannot be held to the contents of the very document he drafted and
    signed, the TI Order. (Resp. at 22). This cannot be. Moreover, Mr. McClure
    received yet another form of notice of the trial setting, as RPH served the Peridot
    Parties with documents in the Dallas Proceeding containing the Bexar County trial
    date. (M.R. 440, 520, 549).
    A careful examination of the reasons for a party’s failure to appear at trial is
    required before relief from a Default Judgment can be granted. In contrast to the
    Peridot Parties’ conduct here, in Custom Crete, this Court held a defendant
    complaining of insufficient notice under Rule 245 did not intentionally fail to
    appear or exercise conscious indifference because the defendant appeared at trial
    mistakenly believing a non-attorney could represent the corporation at 
    trial. 82 S.W.3d at 660
    . Similarly, in Parker, the Texarkana Court of Appeals held a
    defendant that received fourteen days’ notice of a trial setting did not act
    intentionally or with conscious indifference because the defendant sent a letter to
    17
    the district clerk prior to trial requesting clarification of the trial date and
    complaining of lack of proper 
    notice. 20 S.W.3d at 819
    . Here, the Peridot Parties
    failed to show for trial and offer no explanation for how they allegedly overlooked
    multiple instances putting them on notice of the trial date. All the Peridot Parties
    have managed to show is that Mr. McClure was, at best, extremely “forgetful,” but
    “forgetfulness alone is [not] sufficient to satisfy the first Craddock element.”
    Sutherland v. Spencer, 
    376 S.W.3d 752
    , 755 (Tex. 2012).
    For these reasons, Judge Arteaga abused her discretion not only by granting
    the Peridot Parties’ motion for summary judgment in the Bill of Review
    proceeding, but also by denying RPH’s cross-motion for summary judgment
    asking for the denial of the Bill of Review.
    2.    The Peridot Parties failed to present any evidence of a
    “meritorious defense.”
    In addition to proving a lack of intentional conduct or conscious
    indifference, even under the standard for a motion for new trial, the Peridot Parties
    must also allege and prove that they have a meritorious defense to the underlying
    case. Craddock v. Sunshine Bus Lines, Inc., 
    133 S.W.2d 124
    (Tex. 1939). But the
    Peridot Parties presented no evidence whatsoever to Judge Arteaga establishing a
    “meritorious defense.” “Setting up a meritorious defense does not require proof in
    the accepted sense.” Dolgencorp of Texas, Inc. v. Lerma, 
    288 S.W.3d 922
    , 927-28
    (Tex. 2009). “Rather the motion sets up a meritorious defense if it alleges facts
    18
    which in law would constitute a defense to the plaintiff’s cause of action and is
    supported by affidavits of other evidence providing prima facie proof that the
    defendant has such a defense.” 
    Id. at 928.
    On this record, the Peridot Parties entirely failed to make mention of RPH’s
    causes of action, what facts constitute a defense thereto, or what defenses those
    facts support in their briefing to the District Court. Instead, the Peridot Parties
    only made—and continue to make—the vague and conclusory statement that “a
    meritorious defense exists.” (MR 661). None of the affidavits attached to the
    motion for summary judgment the Peridot Parties filed in the District Court
    mentioned any facts related to claims and defenses in the underlying suit and none
    of the pleadings they attached were verified.
    Finally, nothing in the Peridot Parties’ Response to this Court clarifies this
    situation or explains what the “meritorious defense” they would assert against
    RPH’s underlying claims would be. In sum, the Peridot Parties not only did not
    present sufficient evidence to prevail on summary judgment on the “meritorious
    defense” element—they failed to present any evidence on this element at all,
    rendering it an abuse of discretion for Judge Arteaga to grant summary judgment to
    them and to simultaneously deny it to RPH.
    19
    3.     The Peridot Parties failed to present any evidence that RPH
    will not be prejudiced.
    The Peridot Parties also failed to present any evidence on the “prejudice”
    factor of the Craddock test, and failed to prove that RPH will not suffer prejudice
    if the Default Judgment is set aside. While the Peridot Parties flatly ignored the
    prejudice inquiry required by Craddock, the record supports that RPH is severely
    prejudiced by Judge Arteaga’s setting aside of the Default Judgment; RPH incurred
    attorneys’ fees and expenses taking the default judgment when the Peridot Parties
    inexplicably failed to appear for trial on December 14, 2015, in the Underlying
    Suit. (MR 1127). Moreover, following entry of the Final Judgment, the record
    reflects that RPH incurred substantial costs and attorney’s fees in filing a collection
    proceeding, serving post-judgment discovery, defending against the current
    proceeding, and mediating this matter. (MR 1127).
    Contrary to both basic equity and customary practice in Bexar County, the
    Peridot Parties have made no offer to cover the substantial costs and fees incurred
    by RPH. Again, nothing in the Peridot Parties’ Response changes this fact, and the
    record confirms RPH will suffer prejudice in the form of attorneys’ fees and costs
    incurred as the direct result of the Peridot Parties’ failure to appear for a trial
    setting of which they had notice. Because the only evidence in the summary
    judgment record shows that RPH will be prejudiced by the setting aside of the
    Default Judgment, it was an abuse of discretion for Judge Arteaga to grant
    20
    summary judgment to the Peridot Parties and to deny it to RPH in the Bill of
    Review proceeding.
    IV.   Equity and Sound Public Policy Preclude Giving the Peridot Parties a
    “Mulligan” and Setting Aside the Default Judgment on this Record.
    In the final measure, the Peridot Parties are asking this Court to hold that a
    sophisticated commercial litigant, represented by experienced litigation counsel at
    a large Dallas law firm, deserves a “mulligan” for failing to appear for (or to
    object to) a trial setting of which they received multiple written notices and at least
    38 days warning. The Peridot Parties are asking the Court to do this without ever
    providing a coherent explanation as to why they failed to appear, and without
    establishing their lack of fault—or even a lack of conscious indifference. Nor did
    the Peridot Parties bother introduce into the summary judgment record what their
    meritorious defense to RPH’s underlying claims would be.            And, finally, the
    summary judgment record confirms that the Peridot Parties have failed to even
    offer to compensate RPH for the attorneys’ fees and costs that it incurred as a
    direct result of the Peridot Parties’ failure to appear for trial, meaning that RPH
    will suffer prejudice if the Default Judgment is set aside.
    In addition to failing to present adequate summary judgment evidence to
    support their equitable Bill of Review, the Peridot Parties are also asking this Court
    to set aside its own 9-month old decision in Templeton and to hold that Rule 245
    can never be waived and that parties—even sophisticate parties represented by
    21
    quality counsel— can “instead sit on their hands” in response to multiple written
    notices that give some, but less than 45 days, notice of a trial setting. This Court
    should decline this invitation to reverse Templeton, and should refuse to give a
    blanket license to lawyers to simply ignore trial settings that give some but less
    than 45 days’ notice of trial.
    Although default judgment is an undeniably harsh result, Judge Arteaga
    abused her discretion by granting summary judgment to the Peridot Parties on their
    Bill of Review despite the fact that, on this record, as they did not come anywhere
    close to carrying their burden on summary judgment. Indeed, upon examination
    Judge Arteaga’s abuse of discretion becomes obvious because, as 
    explained supra
    ,
    the Peridot Parties failed to offer any summary judgment evidence on multiple
    elements where, as a matter of law, they had the burden of proof—and this is
    equally true regardless if this challenge to the Default Judgment is evaluated under
    the bill of review standard (as it should be) or under the motion for new trial
    standard. Indeed, it was not only an abuse of discretion for Judge Arteaga to grant
    summary judgment on the Bill of Review to the Peridot Partiers, but on this record
    it was equally an abuse of discretion for her to deny RPH’s cross-motion for
    summary judgment against the Bill of Review.
    The admitted harshness of default judgment is mitigated here because the
    Peridot Parties do have a proper and adequate remedy, but it is not an equitable bill
    22
    of review, rather it is against the counsel who failed to appear for trial setting of
    which they had notice, and who still refuse to explain that failure.
    CONCLUSION AND PRAYER
    This Court has consistently recognized that mandamus relief is available
    where, as here, a trial court abuses its discretion in erroneously granting a bill of
    review. As shown in Relator’s Petition for Writ of Mandamus and herein, the
    District Court abused its discretion in granting, via summary judgment, the Real
    Parties in Interest’s Bill of Review.
    For all these reasons, Relator RPH Capital Partners, LP respectfully requests
    its Petition for Writ of Mandamus be granted, and that this Honorable Court of
    Appeals issue a Writ of Mandamus commanding the Respondent, the Honorable
    Antonia Arteaga, to: reverse, alter and amend her Order of June 9, 2016 to reinstate
    the Final Judgment in Cause Number 2015-CI-17142 and styled RPH Capital
    Partners, LP v. Peridot Joint Venture, et al. in the Bexar County 57th District
    Court, Bexar County, Texas, as well as to reinstate all abstracts of judgment and
    writs of execution issued to collect on the Final Judgment. In short, RPH requests
    that this Court grant summary judgment for RPH and restore the post-answer
    Default Judgment that Judge Arteaga set aside via her erroneous grant of the Bill
    of Review.      The Default Judgment should be left undisturbed, with full
    enforcement and execution permitted.
    23
    RPH also requests such additional relief as it is entitled to in law or in
    equity.
    Respectfully submitted,
    By: /s/ Christopher D. Kratovil
    Christopher D. Kratovil
    Texas Bar No. 24027427
    Email: ckratovil@dykema.com
    Kristina M. Williams
    Texas Bar No. 24078303
    Email: kwilliams@dykema.com
    Adam Nunnallee
    Texas Bar No. 24057453
    Email: anunnallee@dykema.com
    DYKEMA COX SMITH
    1717 Main Street, Suite 4200
    Dallas, Texas 75201
    (214) 462-6400 – Telephone
    (214) 462-6401 – Facsimile
    And
    Phyllis Speedlin
    Texas Bar No. 18906100
    Email: pspeedlin@dykema.com
    DYKEMA COX SMITH
    Weston Centre
    112 E. Pecan Street, Suite 1800
    San Antonio, TX 78205
    (210) 554-5500 – Telephone
    (210) 226-8395 – Facsimile
    24
    And
    Andy Taylor
    State Bar No. 19727600
    Email: ATaylor@AndyTaylorLaw.com
    ANDY TAYLOR & ASSOCIATES, P.C.
    2668 Highway 36S, #288
    Brenham, Texas 77833
    (713) 222-1817 – Telephone
    (713) 222-1855 – Facsimile
    ATTORNEYS FOR
    RPH CAPITAL PARTNERS, LP
    25
    CERTIFICATE OF COMPLIANCE
    I certify that this Reply in Support of Petition for Writ of Mandamus
    complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has
    been prepared in a conventional typeface no smaller than 14-point for text and 12-
    point for footnotes. This document also complies with the word-count limitations
    of Tex. R. App. P. 9.4(i), if applicable, because it contains 5,752 words, excluding
    any parts exempted by Tex. R. App. P. 9.4(i)(1).
    DATED:      August 2, 2016
    CERTIFIED BY: /s/ Kristina M. Williams
    Kristina M. Williams
    Counsel for Relator RPH Capital Partners, LP
    26
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the foregoing Reply in
    Support of Petition for Writ of Mandamus was served upon the following counsel
    via this Court’s electronic filing system in accordance with the Texas Rules of
    Appellate Procedure on August 2, 2016.
    /s/ Kristina M. Williams
    Kristina M. Williams
    27
    CERTIFICATION AND VERIFICATION
    STATE OF TEXAS
    COUNTY OF DALLAS
    BEFORE ME, the undersigned notary public, on this day personally
    appeared Adam Nunnallee, who being duly sworn, verified and stated that he is an
    attorney of record for RPH Capital Partners, LP and that he has reviewed the
    Relator's Reply in Support of Petition for Writ of Mandamus and that the facts
    stated within the Reply are within his personal knowledge and are true and correct
    in all respects, and that the factual statements contained in the Reply are supported
    by competent evidence included in the Appendix and/or Record.
    Adam Nunnallee
    SUBSCRIBED AND SWORN TO BEFORE ME this                        2r4-4 day of
    t) kV-- 2016.
    Notary Public
    PAULA ELLIOTT
    Notary Pubik, State of Texas
    My Commission Expires
    05/1 9/1 8               My Commission Expires:   5-      le
    NutAry 
    ID. 1237731-3 28