
 
 









MEMORANDUM OPINION

No. 04-07-00739-CV

Jeffery PERRY, Deborah Perry, Endurastone, Ltd., Endurafiber Management, LLC.,
 Endura Management, LLC., JD Mac & Associates, L.P., and Perry Family Management, LLC.,
Appellants

v.

Michael DOHERTY, Shirley Doherty, Debra Doherty, and Michelle J. Noel,
Appellees

From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CI-12167
Honorable Michael Peden, Judge Presiding

Opinion by:	Sandee Bryan Marion, Justice
 
Sitting:	Sandee Bryan Marion, Justice
		Rebecca Simmons, Justice
		Marialyn Barnard, Justice		

Delivered and Filed:  March 4, 2009

AFFIRMED

	Appellees Michael Doherty, Shirley Doherty, Debra Doherty, and Michelle J. Noel
(collectively "Doherty") sued appellants Jeffery Perry, Deborah Perry, Endurastone, Ltd.,
Endurafiber Management, LLC., Endura Management, LLC., JD Mac & Associates, L.P., and Perry
Family Management, LLC. (collectively "Perry") for damages sustained when Doherty invested in
Perry's business.  Perry did not answer, and a default judgment was entered in favor of Doherty. 
After the default, Perry timely filed a motion for new trial, however, no hearing was held on the
motion, and it was overruled by operation of law.  Perry now appeals the granting of the default
judgment and the denial of his motion for new trial.  Because Perry has not established the elements
needed to set aside a default judgment, we affirm the trial court's judgment.STANDARD OF REVIEW
	We review a trial court's denial of a motion for new trial after a no-answer default judgment
for abuse of discretion.  In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam).  If a defendant
was properly served with process, in order to be granted a new trial after a no-answer default
judgment, he must prove the following three elements: (1) his failure to answer or appear was not
intentional or the result of conscious indifference; (2) he has a meritorious defense; and (3) the
granting of a new trial will not operate to cause delay or other injury to the plaintiff.  Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).  If a defendant was not properly served
with process, he is generally entitled to a new trial without any further showing.  Fid. & Guar. Ins.
Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 574 (Tex. 2006) (per curiam).DISCUSSIONA.  Service of Process
	In his first issue on appeal, Perry argues the trial court erred by granting a default judgment 
because there was no documentation in the record establishing service of process.  Specifically, Perry
states: "In the case at bar, there is nothing to indicate in the record that a citation was issued for any
defendant, much less that service was properly made.  There is no return of service as to any
defendant contained in the file."  However, the record contains a citation return from every named
defendant in the case.  The returns meet all the requirements of Texas Rule of Civil Procedure 107
and were filed with the district clerk more than a month before the default judgment was granted.
Therefore, Perry's argument is without merit.
B. Statute of Limitations
	In his second issue on appeal, Perry argues the trial court erred by granting a default judgment
because the statute of limitations had expired on Doherty's causes of action.  However, unless the
defense of limitations is specifically raised, a plaintiff will be able to bring suit and recover.  See
Tex. R. Civ. P. 94.  In the present case, Perry did not file any response to the suit filed against him;
nor did he raise limitations in his motion for new trial.  As Perry failed to plead that Doherty's claims
were barred by limitations, he is precluded from raising the issue for the first time on appeal. 
C. Craddock Test
	Although Perry argues he satisfied all three Craddock requirements, we conclude his failure
to set up a meritorious defense is dispositive.  To set up a meritorious defense in a motion for new
trial, the movant must "allege facts which in law would constitute a defense to the cause of action
asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie
that the defendant has such [a] meritorious defense."  Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.
1966). 
	In his motion for new trial, Perry alleged, with no supportive factual allegations, that "the
plaintiff's claim is barred because of fraud, ambiguity, and, injuries incurred as a result of the acts
of a third party, namely Scott Noel."  Affidavits from appellants Jeffery C. Perry and Deborah S.
Perry were filed in support of the motion for new trial, however, neither affidavit alleged any facts
that would constitute a defense to the causes of action asserted by Doherty.  Instead, the affidavits
merely repeated the same assertion of a meritorious defense contained in the motion for a new trial. 
After reviewing the record, we conclude the trial court did not abuse its discretion in overruling the
motion for new trial because Perry failed to set up a meritorious defense. (1) 
D.  Appellate Record
	In his final issue on appeal, Perry claims the trial court erred by allowing Doherty's trial
attorney to withdraw exhibits from the record.  He contends there is no way to determine if the
record on appeal accurately reflects the exhibits that were introduced at the default hearing.  As a
result, Perry asserts this court should abate the appeal and grant him a new trial pursuant to Texas
Rule of Appellate Procedure 34.6 (providing for abatement and new trial if reporter's record is
inaccurate, lost, or destroyed).  
	Our examination of the record reveals that the reporter's record and the clerk's record both
contain similar but not identical exhibits.  Even if we assume Rule 34.6 applies in this case, the rule
does not entitle the appellant to a new trial when the inaccurate portion of the record would not
change the outcome of the case.  Tex. R. App. P. 34.6(f)(3); Sanchez v. Sanchez, 915 S.W.2d 99, 102
(Tex. App.--San Antonio 1996, no writ).  Here, none of the exhibits in question are relevant to the
issue of setting up a meritorious defense, an issue we believe is dispositive.  Accordingly, a new trial
is not required because the exhibits in question do not change the outcome on appeal.  See Richards
v. Suckle, 871 S.W.2d 239, 243 (Tex. App.--Houston [14th Dist.] 1994, no writ). 
CONCLUSION
	We overrule Perry's issues on appeal and affirm the trial court's judgment.

 						Sandee Bryan Marion, Justice

 
1.  On appeal, Perry claims the exhibits presented to the trial court during the default judgment hearing were
not properly executed and "[t]his fact alone sets up a valid defense on the part of the Appellants."  However, this
argument was not presented to the trial court in his motion for new trial, and therefore, cannot be considered for the first
time on appeal. 

