                                                                                ACCEPTED
                                                                            12-15-00047-CV
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                       8/20/2015 2:39:36 PM
                                                                              CATHY LUSK
                                                                                     CLERK

                  Cause No. 12-15-00047-CV
                IN THE COURT OF APPEALS
           FOR THE TWELFTH JUDICIAL DISTRICT      FILED IN
                                           12th COURT OF APPEALS
                      TYLER, TEXAS              TYLER, TEXAS
                                          8/20/2015 2:39:36 PM
                                               CATHY S. LUSK
                                                   Clerk
======================================================
                           =========

                        MARK J. HEALEY
                         APPELLANT

                                V.

                       EDWIN N. HEALEY
                          APPELLEE

======================================================
                       =========

          On Appeal from Severed Cause No. 2014C-0638
        From the 3rd District Court, Henderson County, Texas
            Honorable Mark Calhoon, Judge Presiding


======================================================
                       =========

                  BRIEF OF APPELLANT
======================================================

                           STARK & GROOM, L.L.P.
                           Steve Stark
                           State Bar No.: 19066000
                           110 East Corsicana Street
                           Athens, Texas 75751
                           Phone:      (903)675-5691
                           Fax:        (903)675-6454
                           Email: stevestark@starkandgroom.com
                           Attorney For Appellant
                    TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL…………………………….….3

INDEX OF AUTHORITIES……………………………………...................4

STATEMENT OF THE CASE………………………………………….…..5

ISSUES PRESENTED FOR REVIEW………………………………..…....6

STATEMENT OF FACTS………………………………………………….7

SUMMARY OF ARGUMENT……………………………………………..9

ARGUMENT AND AUTHORITY ISSUES 1, 2, 3..…..………………...10

ARGUMENT AND AUTHORITY ISSUES 4 …..……………………….12

PRAYER………………………………………………………………..….14

CERTIFICATE OF COMPLIANCE & CERTIFICATE OF SERVICE…..15

                          APPENDIX

TRCP Rule 120a……………………………………………………………17

Plaintiff’s Motion for Default Judgment Against Defendant Mark
       J. Healey……………………………………………………………19

Special Appearance by Mark J. Healey…………………………………..24

Default Judgment Against Mark J. Healey………………………………26

Mark J. Healey’s Motion For New Trial…………………………………28

Reporters Record pages 6-7……………………………………………….36

Order of Severance………………………………………………………..38

Docket Sheet……………………………………………………………...40
                               2
              IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant

presents the following list of all parties and names and addresses of its

counsel:

Appellant/Defendant                 Counsel:
Mark J. Healey                      Steve Stark
24625 Knox Road                     Stark & Groom, LLP
Route 1 Box 206E                    110 E. Corsicana St.
Marshall, MO 65340-9552             Athens, TX 75751
                                    Telephone: (903) 675-5691
                                    stevestark@starkandgroom.com

Appellee/Plaintiff                  Counsel:
Edwin N. Healey                     Koy Killen
129 Towering Oaks Dr.               Lovelace Killen, P.L.L.C.
Tool, TX                            104 South Main Street
(current address)                   Burleson, Texas 76028
300 Huguley Blvd., #316             Telephone: (817) 447-0053
Burleson, TX                        kkillen@lovelacekillen.com

                                    Fort Worth Office
                                    Water Gardens Place
                                    100 E. 15th St., Suite 350
                                    Fort Worth, TX 76102
                                    (817) 953-9656




                                    3
                      INDEX OF AUTHORITIES

Cases

Abramowitz v. Miller, 649 S.W.2d 339 (Tex. App.-Tyler 1983,
no hist.)……………………………………………………………………10

In re: Does 1-10, 242 S.W. 3d 805 (Tex. App. Texarkana, 2007, no hist....12

Landers v. East Tex. Salt Water Disposal Co., 248 S.W.2d 731
     (Tex. 1952)………………………………………………………….13

LBL Oil Co. v. Int’l Power Serv., Inc., 777 S.W. 2d 390 (Tex. 1989)….12

Martinez v. Valencia, 824 S.W.2d 719 (Tex.App. El Paso 1992
      re hearing denied)……………………………………….………….10

Peralta Heights Med Ctr., Inc., 485 US 80 (1988) ………………………..12

Wilson v. Wilson, 132 S.W. 3d 533, (Tex. App.-Hou. [1st dist.] 2004,
     rev. denied)…………………………………………………………12

RULES

Rule 120a……………………………………………………….Appendix 17




                                     4
                             STATEMENT OF THE CASE

        This is an appeal from the 3rd Judicial District Court of Henderson

County, Texas, the Hon. Mark Calhoon presiding, by one of three

Defendants therein from the Court’s failure to consider and rule upon

Special Appearance1, granting Default Judgment against Appellant2, denying

Motion For New Trial3 and granting Severance.4




1
  Special Appearance by Mark J. Healey, C.R. pg. 384, Appendix pg.24.
2
  Default Judgment against Mark J. Healey, C.R. pg. 386, Appendix pg 26.
3
  Order Denying Mark J. Healey’s Motion For New Trial, C.R. pg. 433.
4
  Order of Severance, C.R. pg.434 and Appendix pg. 38.

                                                   5
                   ISSUES PRESENTED FOR REVIEW


Issue 1:      The Trial Court erred by failing to consider and rule upon

Appellants Special Appearance before granting Default Judgment against

Appellant.



Issue 2:      The Trial Court erred in granting Default Judgment against

Appellant.



Issue 3:      The Trial Court erred in failing to grant a new trial, to correct

its errors.



Issue 4:      The Trial Court erred in severing the cause of action against

Appellant.




                                       6
                                STATEMENT OF FACTS

        Edwin N. Healey sued Appellant and his brothers E. Peter Healey and

Paul C. Healey in the 352nd Judicial District Court of Tarrant County,

Texas5. The venue of the cause was transferred to the 3rd Judicial District

Court of Henderson County, Texas.6

        On November 11, 2014, Appellee filed his Motion For Default

Judgment against Appellant only on the claim of money had and received.7

On November 15, 2014, Defendant, E Peter Healey replied to such motion8

and hearing was set upon such motion for default for November 25, 2015.9

On November 20, 2014 Appellant filed his sworn Special Appearance10

asserting his residence in Missouri with the absence of long arm jurisdiction.

No reply or contest to Appellant’s Special Appearance was filed.11

        Notwithstanding Appellant’s Special Appearance or the pending

setting for hearing on the Motion For Default Judgment, the trial court

signed a Default Judgment against Appellant on November 25, 2014.12




5
  Plaintiff’s First Amended Petition, C.R. pg. 247.
6
  Order on Defendant E. Peter Healey’s Motion To Transfer Venue, C.R. pg 9.
7
  Plaintiff’s Motion For Default Judgment against Defendant Mark J. Healey, C.R. pg. 374 and Appendix
pg. 19.
8
  E. Peter Healey’s Response to Plaintiff’s Motion For Default Judgment Against Defendant Mark J.
Healey, C.R. pg. 379.
9
  Docket Sheet , Appendix pg. 40.
10
   Special Appearance By Mark J. Healey, C.R. pg. 384 and Appendix pg. 24.
11
   Docket Sheet, Appendix pg. 40 and R.R. pg. 6, line 16 to 18, Appendix pg. 36.
12
   Default Judgment, C.R. pg.386, Appendix pg. 26.

                                                  7
         On December 18, 2014, Appellant filed his sworn Motion For New

Trial specifically pointing out to the Trial Court, that his Special Appearance

was filed prior to the Default Judgment and the specific provisions of Rule

120a.13 Hearing was held on such motion and the Special Appearance and

provisions of Rule 120a (Appendix pg. 17) were pointed out, yet the Trial

Court refused to correct its error and denied relief.14

         Thereafter, on January 27, 2015, without written motion, hearing, or

notice, the Trial Court severed the claims against Appellant.15

         Appellant appeals from the Trial Courts error in failing to consider

Appellant’s Special Appearance prior to ruling upon any other matter,

granting default judgment, denying motion for new trial and severing this

cause.




13
   Mark Healey’s Motion For New Trial, C. R. pg. 390, Appendix pg. 28.
14
   Order Denying Defendant Mark J. Healey’s Motion For New Trial, C.R. pg. 433 and R.R pg. 6 line 23 to
pg. 7 line 11.
15
   Order of Severance, Clerk’s Record pg. 436, Docket Sheet Appendix pg. 38.
The Order designates the severed cause as No. 2013C-0638-A but the Clerk’s Records uses the primary
cause No.2014C-0618.

                                                   8
                     SUMMARY OF ARGUMENT

      Texas Rule of Civil Procedure 120a clearly provides in Section 2 that

a Special Appearance shall be heard and determined before any other matter.

In this case, Appellant’s Special Appearance was filed five (5) days before

the Default Judgment was granted. The failure of the Court to consider and

rule on Appellant’s Special Appearance, before granting a Default Judgment

was error.

      The Motion For Default Judgment had been set for hearing on

November 25, 2014, and no reply or contest of the Special Appearance was

filed and without hearing or notice the Court granted Default Judgment.

This could be contributed to oversight or a demanding docket. However, the

error was specifically printed out to the Trial Court by Appellant’s Motion

For New Trial and upon hearing thereon. The Trial Court’s failure to correct

these errors was an abuse of discretion.

      The claim asserted against the Appellant on which default judgment

was sought, was of a joint and severally liability of Appellant and his

brothers, E. Peter Healey and Paul Healey for money had and received, and

severance was an abuse of discretion.




                                        9
                        ARGUMENT AND AUTHORITY RE:
                              ISSUES I, 2 and 3

Issue 1:         The Trial Court erred by failing to consider and rule upon

Appellants Special Appearance before granting Default Judgment

against Appellant.

Issue 2:         The Trial Court erred in granting Default Judgment

against Appellant.

Issue 3:         The Trial Court erred in failing to grant a new trial, to

correct its errors.

        Appellant filed his Special Appearance November 20, 201416, yet

the Trial Court granted Default Judgment against him November 25, 2014

without hearing or consideration of the Special Appearance17.

        Rule 120a in part 2 provides:

              2. Any motion to challenge the jurisdiction provided for
        herein shall be heard and determined before a motion to transfer
        venue or any other plea or pleading may be heard…(Appendix
        pg. 17)


Rule 120a is specific in its terms and it is well recognized that strict

compliance is required with such rule, Abramowitz v. Miller 649 S.W.2d 339

(Tex.App.-Tyler 1983, no hist.). Under established rules, the burden is on

16
   Special Appearance By Mark J. Healey, C.R. pg. 384, Appendix pg. 24.
17
   Default Judgment Against Mark J. Healey, C.R. pg. 386, Appendix pg. 26 and R.R. pg 6 line 23 to pg 7
line 5, Appendix pg. 38.

                                                   10
the Appellant to prove the absence of jurisdiction. Martinez v. Valencia 824

S.W. 2d 719 (Tex.-App. El Paso 1992 re hearing denied). There was no

reply or response to Appellant’s Motion or Special Appearance.18

Appellant’s Special Appearance was duly sworn19 and was prima facie proof

of the court’s lack of jurisdiction, Martinez v. Valencia, 824 S.W. 2d 719

(Tex.App.-Hou [14th Dist.] 1979, re: hearing denied).

        E-filing was a new procedure at the time with difficulties for both the

bench and the bar. Appellant’s Special Appearance was filed November 20,

201420, only five (5) days prior to the Default Judgment being signed21 and

two (2) days of such days were an intervening weekend. However, the fact

of the filing of the Appellant’s Special Appearance prior to the Default

Judgment was clearly pointed out to the Trial Court in the Appellant’s

Motion For New Trial and the hearing thereon.22 No reply23 or evidence was

offered to controvert Appellant’s sworn Special Appearance and no defect

therein pointed out24. Clearly, it is an abuse of discretion for the Trial Court

not to follow and correctly apply the law and such principle applies to



18
   Docket Sheet, Appendix pg. 40 and R.R. pg 6 line 16 to 18, Appendix pg. 36.
19
   Special Appearance By Mark J. Healey, C.R. pg 324, Appendix pg. 24.
20
   Id.
21
   Default Judgment Against Mark J. Healey, C.R. pg 386, Appendix pg. 26 and R.R. pg 1 to 21.
22
   Special Appearance By Mark J. Healey, C.R. pg 384 and R.R. pg 6 line 22 to page 7 line 5, Appendix
pg. 36.
23
   R.R. pg 6 line 16 to 18, Appendix pg. 36.
24
   R.R. pg 6 line 10 to page 23.

                                                  11
following Rules of Civil Procedure. In re Does 1-10, 242 S.W. 3d 805 (Tex.

App-Texarkana, 2007, no hist.).

        Even if for the sake of argument, Appellant’s Special Appearance was

not proper or adequate, it was at least, an appearance and Appellant was

entitled to notice before default. It is fundamental that a Defendant who

makes an appearance is entitled to notice of a trial setting as a matter of

constitutional due process, Wilson v. Wilson, 132 S.W. 3d 533 (Tex. App.-

Hou. [1st dist.] 2004 re: hearing denied), citing Peralta Heights Med Ctr.,

Inc., 485 US 80 (1988) and LBL Oil Co. v. Int’l Power Serv., Inc., 777 S.W.

2d 390 (Tex. 1989). Appellant was give no notice25

        The Trial Court’s failure to observe the plain provisions of Rule 120a

and granting default judgment without notice was an abuse of discretion as a

failure to follow the law.

                          ARGUMENT AND AUTHORITY
                                 ISSUE 4

Issue 4:         The Trial Court erred in severing the cause of action

against Appellant.

        The Trial Court’s Order of Severance26 of claims against Appellant

was error in addition to violation in express provisions of Rule 120a.

25
   See Certificate of service to Plaintiff’s Motion For Default Judgment Against Mark J. Healey, C.R. pg
374 at pg. 376 and R.R. pg 6 line 23 to pg 7 line 5, Appendix pg. 36.
26
   Order of Severance, C.R. pg 434, Appendix pg. 38.

                                                    12
        It is well established that severance is improper against multiple

Defendants when the injury is indivisible, Landers v. East Tex. Salt Water

Disposal Co. 248 SW2d 731 (Tex. 1952). In the case at bar, Plaintiff’s

Motion for Default was based only on its claim of money had and received

asserted jointly against E. Peter Healey, Paul C. Healey and Mark J.

Healey.27       Plaintiff’s pleading, in connection with the claim of money had

and received states:

        Paul Healey, Mark Healey and Peter Healey are improperly
        holding at least $186,620.99 in a joint account. That money
        belongs to Plaintiff in equity and good conscious. Despite
        demands, Paul, Mark, and Peter Healey have failed and refused
        to return the funds, resulting in at least $186,620.99 in actual
        damages incurred by Plaintiff, plus interest.28

Clearly, Plaintiff asserted a joint liability and severance was inappropriate.

There is no provision in the default judgment for credit for funds from Paul

Healey or Peter Healey, voluntarily or pursuant to judgment29. There is no

means to avoid double recovery.                      A risk of inconsistent results was

obviously created. Again, notwithstanding the provisions of Rule 120a, the

Trial Courts failure to follow the law regarding severance was an abuse of

discretion.




27
   Plaintiff’s Motion For Default, Judgment Against Mark J. Healey, C.R. pg 374, Appendix pg. 19.
28
   Plaintiff’s 1st Amended Petition at pg 5 paragraph 21, C.R. pg. 247.
29
   Default Judgment Against Mark J. Healey, C.R. pg 386, Appendix pg. 26.

                                                  13
                                 PRAYER

      WHEREFORE, Appellant prays that the Default Judgment against

him, the Order of Severance of the cause of action against him and all orders

subsequent to the filing of his Special Appearance be reversed and this

matter be remanded for consideration and ruling on Appellant’s Special

Appearance and thereafter a new trial and for such other and further relief to

which he is justly entitled.

                                Respectfully submitted,

                                STARK & GROOM, LLP

                                /s/ Steve Stark
                                Steve Stark
                                State Bar No. 19066000
                                110 East Corsicana Street
                                Athens, Texas 75751
                                Phone: (903) 675-5691
                                Fax:    (903) 675-6454
                                Email: stevestark@starkandgroom.com
                                Attorney for Appellant




                                     14
                CERTIFICATE OF COMPLIANCE and
                   CERTIFCATE OF SERVICE

      This certifies that the undersigned has reviewed this Brief of
Appellant and concluded that every factual statement in it is supported by
competent evidence included in the Appendix, and that the documents
included in the Appellant’s Appendix are true and correct copies of the
original papers and that this document is in Times New Roman 14, contains
1,982 words, as indicated by the word count function of the computer
program used to prepare it, excluding the caption, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of all issues presented, statement of procedural history or facts,
signature, proof of service, certification, certificate of compliance, and
appendix and I, the undersigned attorney, hereby certify that a true and
correct copy of the foregoing Brief of Appellant and corresponding
Appendix was duly served by email this the 20th day of August, 2015 as
follows:



Koy R. Killen                  Via email:kkillen@lovelacekillen.com
Lovelace Killen P.L.L.C.
104 South Main Street
Burleson, Texas 76028

                                            /s/ Steve Stark_____________
                                            Steve Stark
                                            Attorney for Appellant




                                    15
