                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-17-00374-CV
                             ________________________

                     TRADITIONS OIL & GAS, LLC, APPELLANT

                                           V.

                      COMAC WELL SERVICE, INC., APPELLEE



                           On Appeal from the 84th District Court
                                 Hutchinson County, Texas
              Trial Court No. 42,699; Honorable Curt W. Brancheau, Presiding


                                     March 18, 2019

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant, Traditions Oil & Gas, LLC, appeals a no-answer default judgment

granted in favor of Appellee, Comac Well Service, Inc. Because we find the trial court

erred by entering the default judgment at issue, we reverse that judgment and remand

the cause for further proceedings.
       BACKGROUND

       Comac instituted the underlying lawsuit by filing its Original Petition and Application

to Foreclose Natural Resource Lien on January 9, 2017. Service of process was made

by sending the original citation, with petition attached, to C T Corporation System, by

certified mail, return receipt requested. The return receipt, indicating the date of delivery

as January 23, 2017, was then filed with the district clerk on January 30, 2017.


       On February 15, 2017, Comac sought and obtained a no-answer default judgment

in which the trial court granted it judgment against Traditions for (1) $122,781.56 as the

principal amount due for goods and services, (2) $588.67 as interest on the principal

amount due to the date of judgment, (3) $1,830.00 as attorney’s fees, (4) $404.23 as

court costs, (5) post-judgment interest as provided by law, (6) foreclosure of an

unspecified mineral lien, (7) an order of sale, (8) an order of possession, and (9)

contingent attorney’s fees in the event of an appeal to this court or the Texas Supreme

Court. The next day, February 16, 2017, the trial court entered its Default Judgment

(Amended) to include an exhibit describing the properties to be foreclosed. On February

21, 2017, Traditions filed its Original Answer.


       Thereafter, on March 15, 2017, Traditions filed its unsworn Motion to Set Aside

Default Judgment and for New Trial, seeking to set aside the February 16 amended

default judgment. In its pleading, Traditions averred that its failure to timely file an answer

was not intentional or the result of conscious indifference, that there was no evidence to

support the unliquidated damages requested by Comac, and that setting aside the default

judgment would not work a prejudice as to Comac, nor would it result in any undue delay



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of the proceedings. That same date, without a hearing, the trial court ordered that both

the original and amended default judgments be “set aside and vacated in [their] entirety.”


       On April 1, 2017, Comac filed its unsworn Motion for Reconsideration of

Defendant’s Motion for New Trial and to Vacate Order. After an exchange of letters, but

again without a formal hearing or the presentation of any evidence, on August 29, 2017,

the trial court signed its Order Vacating Previous Order Granting Defendant’s Motion for

New Trial and Reinstating Amended Default Judgment which provided that the “Order

entered by this Court on [March] 15, 2017, wherein the Court granted Defendant’s request

for a new trial and vacated the Amended Default Judgment previously granted in favor of

Plaintiff, be vacated in its entirety . . . .” The trial court further ordered that the “Amended

Default Judgment previously vacated by the Court on [March] 15, 2017, is hereby

reinstated, for which let execution issue.”


       Traditions’s Second Motion to Set Aside Default Judgment and its Amended

Second Motion to Set Aside Default Judgement were filed, but never ruled upon by the

trial court. As a result, on September 28, 2017, Traditions filed its Notice of Appeal. By

four issues, Traditions maintains the trial court erred by (1) entering a default judgment

on Comac’s pleadings because the cause of action is unspecified, (2) “reinstating” a

default judgment after an answer has been filed, (3) denying Traditions’s second motion

to set aside the default judgment, and (4) awarding unliquidated damages without an

evidentiary hearing. Because Traditions’s second issue is dispositive, it is unnecessary

for us to address issues one, three, and four. TEX. R. APP. P. 47.1.




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       ANALYSIS

       As a matter of necessity, we must first clearly establish our point of beginning and

identify just which order is being appealed by the parties (and, conversely, which orders

are not being appealed) before we can disentangle the legal issues created by the

“reinstatement” of the amended default judgment of February 16, 2017. While Notice of

Appeal filed by Traditions states that it desires to appeal three separate orders: (a) the

Default Judgment signed February 15, 2017, (b) the Default Judgment (Amended) signed

February 16, 2017, and (c) the Order Vacating Previous Order Granting Defendant’s

Motion for New Trial and Reinstating Default Judgment signed August 29, 2017, it actually

only seeks the review of one order, the order of August 29th vacating the new trial

previously granted and “reinstating” the amended default judgment of February 16, 2017.


       When a trial court vacates or sets aside a prior order granting a new trial and

“reinstates” the original judgment, the trial court is technically entering a new judgment

and the original judgment is not reinstated.      Arkoma Basin Exploration Co. v. FMF

Associates 1990-A, Ltd., 249 S.W.3d 380, 391 (Tex. 2008) (holding that if a judgment is

modified in any respect, it is the modified judgment, not the original judgment, that

determines appellate jurisdiction). Even if a trial court has the authority to reconsider its

prior order granting a motion for new trial, such reconsideration does not have the legal

effect of “reinstating” the original judgment. Southwest Warren, Inc. v. Crawford, 464

S.W.3d 822, 826-27 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that “even if

a trial court has the authority to reconsider a grant of a motion to extend the post-judgment

deadlines, such a reconsideration does not have the legal effect of setting the post-

judgment deadlines back to their original deadlines”). In Crawford, the court went on to


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hold that an “order reinstating the original judgment does not void or otherwise render the

grant of a new trial a nullity. (Citations omitted). “It, in effect, creates a new judgment

that is identical to the original judgment in all ways except for the date of signing.” Id. at

827. As such, the August 29th order is the appealable order the subject of this appeal.

See Arkoma, 249 S.W.3d at 391. See also Gathe v. Gathe, 376 S.W.3d 308, 315 (Tex.

App.—Houston [14th Dist.] 2012, no pet.) (holding that the “ungranting” of a new trial does

not reinstate the original judgment but, instead, requires the trial court to enter a new

judgment).


       Here, the trial court granted Traditions’s Motion to Set Aside Default Judgment and

for New Trial, effectively rendering the February 16, 2017 Default Judgment (Amended)

a nullity for all purposes. The trial court cannot, thereafter, ignore Traditions’s filing of an

answer prior to its consideration of Comac’s Motion to Reconsider. Because a trial court

may not enter a no-answer default judgment against a defendant when that defendant

has an answer on file—even if the answer was not timely filed—the August 29, 2017 order

“reinstating” the amended default judgment against Traditions is void. See TEX. R. CIV.

P. 239. See also Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989); Thomas v. Gelber

Group, 905 S.W.2d 786, 788 (Tex. App.—Houston [14th Dist.] 1995, no writ) (“A default

judgment may not be granted when the defendant has an answer on file, even if the

answer was filed late.”).


       Furthermore, we need not address Traditions’s contention that Comac’s pleadings

fail to assert a bona fide suit on sworn account pursuant to Rule 185. See TEX. R. CIV. P.

185. Even if Comac’s pleading could be construed as a valid suit on sworn account, an

issue we do not reach, Traditions’s filing of a general, unsworn denial still renders the

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entry of a default judgment inappropriate. Reitmeyer v. Charm Craft Publisher, 619

S.W.2d 441, 442 (Tex. Civ. App.—Waco 1981, no writ).


      CONCLUSION

      The trial court erred in entering the order of August 29, 2017, “reinstating” its prior

no-answer default judgment that had previously been set aside and had no continuing

legal effect. Accordingly, we reverse the judgment of the trial court, enter an order

denying Comac’s Motion to Reconsider, and remand the cause to the trial court for further

proceedings consistent with this opinion.




                                                 Patrick A. Pirtle
                                                      Justice




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