                                                                                                  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




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