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www.br:tzori:~~~ountt.t'om


                                                                                  FILED IN
                                        RHONDABARCHAK                     14th COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                           DISTRICT CLERK
                                             BRAZORIA COUJ\'TY            11/10/2015 10:29:48 AM
                                                                           CHRISTOPHER A. PRINE
                                                                                   Clerk


                               NOTICE OF ASSIGNMENT ON A RESTRICTED APPEAL

     11/10/2015

     TO:      FOURTEENTH COURT OF APPEALS

     RE:     Cause No. 82302-CV, in the 412th District Court

             Style; ASHLEY NICOLE RAMSEY VS. IRONMAN EXPRESS LLC, ET AL

                               **************************************

     CASE INFORMATION:

     DATE OF APPEALABLE ORDER/JUDGMENT:        11/3/ 15 & 7/ 1/ 15
     NOTICE OF APPEAL:            11/9/ 15
     MOTION FOR NEW TRIAL:        8/26/ 15
     ORDER OVERRULING MOT NIT     N/A
     REQUEST FOR FINDING OF FACTS AND CONCLUSIONS OF LAW FILED NO
     REQUEST FOR CLERK'S RECORD: NO
     REQUEST FOR REPORTERS RECORD FILED: NO
     METHOD OF DELIVERY:          T AMES PORTAL
     JUDGE PRESIDING:             W. EDWIN DENMAN
     COURT REPORTER:              JILL FRIEDRICHS

                               ***************************************

     APPELLANT:                     ERIC RAYE RIEGER

     ATTORNEY(S) FOR APPELLANT: JEFFRY P O'DEA
     TEL.: 713-650-8700
     FAX:  713 -655-8383
     EMAIL ADDRESS:           jodea@tx-couusel.com
     TEXAS BAR NO.            15192400
                                                                                     Fi ed for Record
                                                                                     8/26/2015 12:18:25 PM
                                                                                     Rhonda Barchak, District Cieri<
                                                                                     Brazoria County. Texas
                                                                                     82302-CV
                                                                                     Kim Mire, Deputy

                                         NO. 82302-CV

ASHLEY NICOLE RAMSEY,                            §               IN THE DISTRICT COURT OF
                                                 §
       Plaintiff                                 §
                                                 §
v.                                               §
                                                 §
                                                 §               BRAZORIA COUNTY, TEXAS
ERIC RAYE RIEGER, and                            §
IRONMAN EXPRESS, LLC                             §
                                                 §
       Defendants                                §                   412th JUDICIAL DISTRICT


           DEFENDANTS' MOTION TO SET ASIDE DEFAULT JUDGMENT,
            MOTION FOR NEW TRIAL M'D MOTION FOR REMITTITUR


TO THE HONORABLE COURT:

       Defendants, IRONMAN EXPRESS, LLC and ERIC RAYE RIEGER, file this Motion to

Set Aside Default Judgment, Motion for New Trial, and Request for Remittitur, respectfully

requesting the Court to set aside the July 1, 2015, default judgment (and the J\Ule 12, 2015,

interlocutory default judgment) entered in favor of Plaintiff and, in the interest of justice and

fairness, grant a new triaL Defendants show the following:

                           EXHIBITS IN SUPPORT OF MOTION

       Exhibit 1:     Affidavit of Matthew Garrett, Defendant Ironman's agent for service of
                      process

       Exhibit2:      Affidavit of Eric Raye Rieger

       Exhibit3:      Affidavit of Logan Batlle, licensed insurance agent

       Exhibit4:      File copy of July 10, 2015 notice letter from district clerk
                                        INTRODUCTION

               - "It is a basic tenet of jurisprndence that the lcnv abhors a
               default because equity is rarely served by a default"- 1

        Plaintiff; Ashley Nicole Ramsey ("Ramsey") filed suit on January 15, 2015, alleging that

fo\U' Defendants- Dustin Ray Conchy, Jorg Conchy, Eric Raye Rieger, and Ironman Express,

LLC- were liable to her for personal injuries stenuning from two separate April10, 2015 auto

accidents on southbound SH 288. According to her petition, Ramsey alleges she was completely

stopped in traffic on southbound SH 288, which had become backed-up due to a rear-end

collision ahead of her involving Rieger and Ironman. Separately, during the time Ramsey was

stopped in traffic, her vehicle was struck from behind by a vehicle owned by Jorg Conchy and

operated by Dustin Conchy. Ramsey alleges that Dustin Conchy failed to timely apply his brakes

to avoid striking her car.

        Ramsey alleged that all fo\U' Defendants were negligent. She also alleged that Rieger's

and Ironman' s conduct proximately caused her claimed injuries, even though her car was struck

by Conchy, not Rieger. The vehicle Rieger was driving was no where near Ramsey at the time

Conchy hit Ramsey's vehicle. (See also Ex. 1,       ~   4; Ex. 2,   ~   3). The first accident- which

involved Rieger and another driver, Seyda (the "Seyda accident")--occ\U'red well before, and

quite a distance away from, the Conchy-Ramsey accident2

       Neither Rieger nor Ironman timely flied answers in the instant proceeding. As explained

more fully below, Defendants' fail\U'e to file an answer was the result of a simple, yet regrettable,

mistake by Ironman' s ins\U'ance agent. Ramsey then filed a Motion for Default Judgment. Upon

       Titan Indem. Co. v. Old Sauth Ins., 221 S.W.3d 703 (Tex. App.-san Antonio 2007, no
       pet.).
2
       Rieger and Ironman were sued as a result of the Seyda accident. (Ex.         1,"'
                                                                                 3; Ex. 2, "' 2).
       Both Rieger and Ironman forwarded the suit papers to the ins\U'ance agent. Id. The suit
       was defended and ultimately settled. Id.
                                                2
infonnation and belief, the Court granted an interlocutory default judgment against Rieger and

Ironman on June 12, 2015.        The Court later severed Ramsey' s claims against Rieger and

Ironman into a new lawsuit, No. 82302-CV. On July 1, 2015, the Court signed a Final Judgment

against Rieger and Ironman, awarding Ramsey $2,303,000.

       The clerk was required to send Ironman and Rieger notice of the Final Judgment pursuant

to Rules 306a(3) and 239a of the Texas Rules of Civil Procedure. The clerk's records are

believed to show that notice in the form of a letter was dated July 10, 2015, and mailed to both

Defendants. While each Defendant ultimately received a copy of the clerk's July 10, 2015letter,

they did not receive it until July 28, 2015, at the earliest. (Ex. 1,1 7-10; Ex. 2, ~ 6-9)_3

       As soon as Defendants learned that a default judgment had been entered, Matthew Garrett

contacted Ironman's insurance agent and learned, for the first time, that the lawsuit papers

Garrett previously and timely forwarded to the agent had not been sent to the insurance carrier.

(Ex. 1, ~ 8). The undersigned counsel was inunediately retained to represent both Defendants,

make an appearance and begin work on preparation of appropriate motions to set aside the

default judgment

        Based upon the foregoing, on August _       , 2015, Defendants Ironman and Rieger filed a

Motion to Extend Post-Judgment Deadlines with the Court in order to extend the time for them

to assert their rights to a new trial, and set aside the default judgment. Now, by the present

motion, Defendants ask the Court to grant them a new trial and set aside the default judgment of

July 1, 2015. The facts giving rise to the entry of the default judgment are indicative of ruistake



3
       It is unclear from the record when the district clerk' s office placed the July 10, 2015
       letters in the mail. The file copy maintained in the clerk's file shows it was file-stamped
       at 4:49p.m., July 10, 2015. (Ex. 4). Given the time the clerk's letter was filed, it may
       not have been placed into the mail until the following Monday, July 13, 2015. In any
       event, Defendants did not receive the letter until July 28, 2015, at the earliest.
                                                3
only, not conscious indifference. Moreover, Defendants' failure to file timely answers was not

due to their mistake, as the suit papers were promptly forwarded to the insurance agent.

Defendants have meritorious defenses to the claims raised in Plaintiff's Petition and Plaintiff will

not be prejudiced by an order vacating the default judgment. Justice requires that the default

judgment be set aside so that Plaintiff's claims can be determined based on their merit, rather

than through a truncated default proceeding.

                               ARGUMENT AND AUTHORITY

A.     Defendants respectfully request this Court to vacate the final judgment and grant. a
       new trial because the default was the result of a mistake, not conscious indifference,
       Defendants can set up meJitmious defenses, and granting a new tJial will not
       prejudice Plaintiff.

       1.      Controlling standards.

       A court should set aside a default judgment and grant a new trial if a defendant can meet

the requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).

Craddock requires the defendant to do the following:

               a.     demonstrate that the failure to file an answer was not intentional or the
                      result of conscious indifference, but was merely a mistake or accident. In
                      re RR, 209 S.W.3d 112, 114 (Tex. 2006); Estate of Pollockv. McMurrey,
                      858 S.W.2d 388, 391 (Tex. 1993);

               b.     "set up" a meritorious defense.4 Director v. Evans, 889 S.W.2d 266, 270
                      (Tex. 1994); and,

               c.     demonstrate that granting a new trial will not result in delay or prejudice
                      to plaintiff Id., 889 S.W.2d at 274 n.3.

       In evaluating these factors, the court should exercise liberality in favor of the defaulted

party. See Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex. App.-san Antonio 1987, no writ).

4
       "Setting up" a meritorious defense means merely that the Defendant must allege facts
       constituting a defense to Plaintiff's cause of action and must support the allegations with
       affidavits or other evidence that set up, not prove, a prima facie defense. Estate of
       Pollack, 858 S.W.2d at 392.
                                                 4
Accordingly, when all three elements of the Craddock test are met, the trial court abuses its

discretion if it fails to grant a new trial. Bank One Texas, N.A. v. Moody, 830 S.W.2d 81, 85

(Tex. 1992).

       2.      Defendants' failure to file an answer was a mistake, not conscious indifference.

       The first element of the Craddock test requires Defendants to demonstrate that an answer

was not filed due to a mistake or accident. In re RR, 209 S.W.3d at 114. This is because ooder

Texas law, only an intentional failure to file an answer or conscious indifference will allow a

default judgment to remain in place. Id. The facts set forth in this motion and the attached

affidavits demonstrate that Defendants, or Ironman' s insurance agent, did not act intentionally or

with conscious indifference. The Court should find in favor of Defendants because their failure

to answer was the result of a mistake or accident and adequate justification exists for the failure

to answer. See Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995);

Fidelity & Guar. Ins. Co. v. Drewerey Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006).

       The court should grant a new trial because Defendants' failure to answer was not

intentional, but was accidental. Both Defendants were served with process. The lawsuit papers

were forwarded to Ironman's insurance agent by email. (Ex. 1,        1 6;   Ex. 2,   1 4;   Ex. 3,   1 6).
Defendants remember this because they had similarly forwarded the lawsuit papers from the

Seyda accident to the insurance agent as welL Both Defendants anticipated and expected that

they would be defended, as had occurred in the Seyda matter. Ironman's insurance agent,

however, did not realize he had received a copy of service papers relating to a new claim, the

Ramsey matter. The insurance agent explains in his affidavit the nature of the mere oversight

that resulted in the Ramsey petition not being forwarded to the insurance canier:

               6.     On or about February 2, 2015, pursuant to an ongoing business
                      relationship with Matthew Garrett, I received an e-mail with

                                                5
                      several attaclunents. The content of the email involved mainly
                      business matters other than the Ramsey lawsuit. I opened the first
                      two attachments to the email, which pertained to those other
                      business matters. However, by oversight, I did not open the third
                      attaclunent. Included in the third attachment was a copy of the
                      petition and other lawsuit papers relating to the Ramsey lawsuit. I
                      did not realize that the third attaclunent to the e-mail included a
                      copy of the petition and other lawsuit papers showing that that this
                      lawsuit had been served upon Ironman and Mr. Rieiger. Had I
                      known that the attaclunents contained a service copy of the
                      Ramsey lawsuit, I would have inunediately forwarded the same to
                      the insurance carrier, consistent with my standard practice, and as I
                      did in the Seyda matter. Also, my usual practice is to routinely
                      read all my emails and attaclunents; however, on this occasion, I
                      did not see the third attachment.

               7.     As a result of this oversight, I did not follow standard practice by
                      inunediately forwarding the lawsuit to the insurance carrier. The
                      insurance carrier, in turn, did not hire a lawyer to file an answer
                      and defend the Defendants, resulting in a Default Judgment that
                      appears to have been rendered on July 1, 2015.                  This
                      omissionfailure was the result of an simple oversight and was not
                      the result of conscious indifference. Had the oversight not
                      occurred, I would have forwarded the lawsuit to the insurance
                      carrier and I would have expected the insurance carrier to hire
                      counsel to timely file an answer and otherwise appropriately
                      respond to the lawsuit as it had for the Seyda accident.

(Ex. 3).

       Defendants' conduct certainly does not reflect intentional action or conscious

indifference to the requirements of a party to litigation. Further, the actions of the insurance

agent, while a mistake, also do not reflect intentional action or conscious indifference. He

simply did not realize the Ramsey petition was attached to an email addressing other business

matters. Defendants desire to dispute the merit of this claim. This is a case of human error and a

simple mistake, which could happen to anyone. This is not a case of conscious indifference or

intent not to answer the lawsuit.     Once Defendants learned of the Final Judgment, they

inunediately contacted the agent, and now counsel has been retained.


                                                6
       3.      Case law supports setting aside the default judgment.

       The present case is an instance of a mistake the law forgives. See, e.g., Milestone Oper.,

Inc. v. ExxonMobil Corp., 388 SW.3d 307, 309-10 (Tex. 2012) (defendant's agent testified that

he did not remember being served and had not provided suit papers to defendant's attorney);

Bank One v. Moody, 830 SW.2d 81, 84-85 (Tex. 1992) (bank president testified bank did not file

answer because he erroneously believed the bank had complied with proced\U'es); Strackbein v.

Pre-witt, 671 S.W.2d 37, 39 (Tex. 1984) (defendant's office staff misplaced citation).

       For further example, in Titan Indem. Co. v. Old South Ins. Group, 221 SW.3d 703 (Tex.

App. - San Antonio 2007, no pet), the San Antonio Co\U't of Appeals held the district co\U't

abused its discretion by denying a motion for new trial following the entry of a default judgment.

In that case, a defendant's general counsel received multiple petitions against other parties,

which he forwarded to outside counsel. He later received another petition, which believed,

mistakenly, was duplicative of the prior lawsuits. He took no action and a default was entered

against the defendant

       On appeal, the co\U't noted that when Schwartz received the initial lawsuit papers, he did

not ignore them; rather, he forwarded them to the appropriate outside counsel to be addressed.

Id. at 709. When he received actual service of process of the remaining two lawsuits, he

believed that they were duplicates of the same suit, which had been forwarded to outside

counsel. The San Antonio Co\U't of Appeals emphasized that the Craddock analysis must be

performed within a liberal framework, one which recognizes that "[i]t is a basic tenet of

jurisprudence that the law abhors a default because equity is rarely served by a default." Id. at

708 (citing Benefit Planners, ILP v. RenCare, Ltd., 81 S.W.3d 855, 857-58 (Tex. App.-san

Antonio 2002, pet. denied)). Moreover, "[t]he historical trend in default judgment cases is


                                                7
toward the liberal grant of new trials." Id. (citing Tex. Sting Ltd. v. R.B. Foods, Inc., 82 S.W.3d

644, 650 (Tex. App.-san Antonio 2002, pet. denied)).

        Because the "[c ]ontrolling fact ... is the absence of a pwposeful or bad faith failure to

answer," the court in Titan determined that Schwartz' s failure to appreciate that the subsequent

notices of the lawsuits were not mere duplicates of that which he acted upon earlier was a mere

mistake, not conduct demonstrating bad faith.             Specifically, the Court held: "Schwartz's

testimony reveals negligence at best, but it does not establish that he knew there were three

different lawsuits and that he simply did not care and intentionally failed to answer two of the

lawsuits." Id. at 710. Similarly, the insurance agent did not knowingly ignore the Ramsey

petition; he simply did not realize he had received it.

        Further, in National Rigging, Inc. v. City ofSan Antonio, 657 S.W.2d 171 (Tex. App.-

San Antonio 1983, writ ref'd n.r.e.), the Court of Appeals reversed the district court' s denial of a

motion to set aside a default judgment. There, a party failed to notify legal counsel that the

defendant had been served, and, as a result, a default judgment was taken against that entity. The

court of appeals again determined that a mistaken belief that service of citation was a duplicate

of documents previously received and acted upon was not indicative of intent "to suffer

judgment to go by default." Id. at 173 (citing Craddock, 133 S.W.2d at 125). Thus, the Court

held: "We fmd that the defendant's failure to answer before judgment was not intentional on the

part of the president of that company, or the result of his conscious indifference, but was due to a

mistake. "

        Further, a mistaken belief that a claim has been resolved or dismissed negates intentional

disregard or conscious indifference. Ashworth v. Brzoska, 274 S.W.3d 324, 333 Tex. App.-




                                                  8
Houston [14th Dist.] 2008, no pet.). See also State v. Sledge, 982 S.W.2d 911, 915-16 (Tex.

App.- Houston (14th Dist.] 1998, pet. denied).

       In deciding whether to set aside a default judgment, the controlling factor is the " absence

of a purposeful or bad faith failure to answer ... [and] even a slight excuse will suffice.... "

Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex. App.- Houston (14th Dist.] 1988, no writ). The

facts at issue here compare favorably to those addressed in Sledge, Titan Indemnity and National

Rigging, and other cases finding that a default should be set aside due to mistake. Here, there is

unmistakable evidence that the defaulting party intended to dispute the claim, and desired to

respond to the suit. The Defendants should not be punished when they forwarded the petition

and citation to the agent.

       4.      Defendants have meritorious, and likely conclusive, defenses, including the clear
               absence ofproximate cause.

       To prevail on the present motion, Defendants are required only to "set up" a meritorious

defense. This simply means they must allege facts that constitute a defense to Plaintiff's causes

of action and support the allegations with affidavits or other evidence, proving a prima facie

defense. Estate ofPollack, 858 S.W.2d at 392; Director, 889 S.W.2d at 270. Defendants are not

required to prove their defenses. Titan Indem., 221 S.W.3d at 711. A meritorious defense is one

that, if proved, would cause a different result on retrial, although not necessarily the opposite

result. Liepelt v. Oliviera, 818 S.W.2d 75, 77 (Tex. App.---corpus Christi 1991, no writ). The

Court is not permitted to consider controverting affidavits on the issue of a meritorious defense.

Estate ofPollack, 858 S.W.2d at 392.

       Proximate cause is a necessary element of a claim for negligence. To appreciate the

absence of proximate cause in this case, the Court need look no further than Ramsey's petition.

Plaintiff claims that Defendants Ironman and Rieger were negligent because, she says, the Seyda

                                                 9
accident involving Rieger occurred on SH 288, the same highway on which Ramsey was

traveling. But Rieger did not strike Ramsey' s vehicle. Rieger was involved in a completely

separate accident occurring long before Ramsey' s accident. The Condry Defendants, not Rieger,

struck Ramsey' s vehicle.

       Moreso, the affidavits attached to this motion present facts that set up a causation

defense. As Rieger states, the Condry-Ramsey accident occtuTed "quite a distance" from the

location of the Seyda accident. (Ex. 2, ~ 3). He also confums that he was not involved in the

Condry-Ramsey accident. In fact, he did not even learn that the Condry-Ramsey accident had

occtuTed until much later in 2014. (Ex. 2, ~ 3). Condry's subsequent accident with Ramsey,

long after the Seyda accident occtuTed, is far too removed from the time and location of the

Seyda accident to satisfy the proximate cause element. Condry' s independent act of striking

Ramsey' s vehicle also constitutes a superseding and intervening cause of Ramsey's alleged

mJunes.

       The court should grant a new trial because Defendant have set up a meritorious defense.

Ramsey' s petition and the Defendants' respective affidavits support the argument that any

injuries Ramsey suffered as a result of being struck by Condry were not proximately caused by

Rieger or Ironman.

       5.      A new trial will not prejudice Plaintiff

       Finally, the court should grant a new trial because a new trial will not delay or injure

Ramsey. Defendants flied an answer simultaneously with this motion. Defendants have also

flied a Motion to Extend Post-Judgment Deadlines. All of this activity has occurred since July

28, 2015, the date on which Defendants first acquired actual knowledge of the judgment through

their receipt of the clerk's notice letter. No material evidence or witnesses are less available now


                                                10
than they were when Defendant's answer was due. See Director, 889 S.W.2d at 270 (stating the

pwpose of this element is to protect the plaintiff against the sort of delay that would cause it to

be disadvantaged in the trial of its case such as the loss of witnesses or other valuable evidence).

        In addition, even though not required, Defendants are offering to reimburse Plaintiff's

counsel for reasonable expenses incurred in obtaining the default judgment. See Angelo v.

Champions Restaurant Equip. Co., 713 S.W.2d 96, 98 (Tex. 1986) (finding failure to offer

reimbursement will not preclude a new trial). Defendants are ready to proceed in defending the

suit.

        The Court has not entered a docket control order, and no discovery has occUlTed, to

counsel's knowledge. The parties will have many months to complete discovery. Ramsey will

not be prejudiced by the Court granting the new trial.

        For all of these reasons, Defendants have demonstrated that their failure to timely answer

the lawsuit was a mistake, that they have meritorious defenses, and that Plaintiff will not be

prejudiced by granting a new trial. Defendants, therefore, respectfully request the Court to set

aside and vacate the Final Judgment and to grant a new trial.

B.      The Comt sh ould gr an t a new trial in the interest of justice and fairness.

        The Court has discretion to grant a new trial for "good cause" and in the interest of

justice. TEx. R Crv. P . 320. If any case cries out for setting aside a default judgment on equity

grounds, it is this case. The Plaintiff has obtained a $2 million default judgment in a car wreck

case when her own petition alleges that Rieger was not even involved in the Condry accident

about which she complains. Equity cannot allow this judgment to stand uncorrected.




                                                 11
C.     Defendants are entitled to judgment in their favor or a new hial based upon legally
       and factually insufficient evidence in suppmt of the judgment (liability and
       damages).

       The default judgment must be set aside and a new trial granted because Plaintiff has

offered legally and factually insufficient evidence in support of its causes of action and the

damages ultimately awarded.

       1.      Controlling standard

       The court must find insufficient evidence was presented in support of Plaintiff's causes of

action when the record reveals: (1) a complete absence of evidence of a vital fact; or (2) the

court is barred by rules of law or evidence from giving weight to the only evidence offered to

prove a vital fact; or (3) the evidence offered to prove the vital fact is no more than a mere

scintilla of evidence, or (4) the evidence establishes conclusively the opposite of the vital fact.

Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 318 (Tex. 1994). No more than a scintilla

of evidence exists on a vital fact where reasonable minds cannot differ from the conclusion that

the evidence offered to support the existence of a vital fact lacks probative force. Also, in a "no

evidence" review, inference stacking is impennissible. Schlumberger v. Nortex Oil & Gas

Corp., 435 S.W.2d 854, 859 (Tex. 1968). The legal equivalent of no evidence occurs when

"mere circumstantial evidence" gives rise to inferences equally consistent with two different

propositions. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997).

       In reviewing a factual sufficiency claim, the court weighs all the evidence, including any

evidence contrary to the trial court's judgment. E.g. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.

1996); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980).




                                                12
       2.      Plaintiff has not provided sufficient evidence of liability.

       There is no evidence, or factually insufficient evidence, that the injuries alleged were

proximately caused by any breach of duty by Defendants. For this reason alone, evidence

sufficient to support liability for actual damages is lacking.

       3.      Plaintiff has not provided sufficient evidence to support the damages awarded.

       Moreover, there is legally and factually insufficient evidence to support the damages

awarded in the judgment. The judgment entered in this case assesses damages against Defendant

in the amount of S2.3 million . Plaintiff has not submitted legally and factually sufficient to

support the alleged damages asserted. Awards for medical care and future surgery, pain and

suffering, or mental anguish must be supported by competent evidence justifying the figure

sought and cannot be arbitrary. See Parklvay v. Woodruff, 901 S.W.3d 434, 444 (Tex. 1995).

Based upon the foregoing, Defendants respectfully request this Court to grant a new trial.

D.     Request for remittitur

       In the event this Court does not set aside the default judgment, Defendants request this

Court to suggest a remittitur to Plaintiff in accordance with substantial justice, and, if refused by

Plaintiff; order a new triaL

E.     Request for findin gs of fact and conclusions of law

       As noted above, the damage award referenced in the default judgment is not supported by

any :fitctual findings or conclusions. Defendant respectfully requests this Court to enter findings

of fact and conclusions of law in support of the damages asserted in this case.




                                                  13
                                  CONCLUSI ON AND PRAYER

        THEREFORE, for the above reasons, and in the interest of justice and fairness,

Defendants, IRONMAN EXPRESS, LLC and ERIC RAYE RIEGER, ask the Court to vacate the

July 1, 2015 Final Judgment, set aside the June 12, 2015 interlocutory default judgment, grant a

new trial, and for all other relief to which they are justly entitled.

                                                Respectfully submitted,

                                                BURT, BARR & O ' DEA, L.L.P


                                                By:     Jeffiy P. O 'Dea
                                                        Jeffiy P O 'Dea
                                                        State Bar No. 15192400
                                                        3900 Essex Lane, Suite 330
                                                        Houston, Texas 77027
                                                        Telephone: (713) 650-8700
                                                        Facsimile: (713) 655-8383

                                                CHAMBERLAIN, HRDLICKA, WHITE
                                                    WILLIAMS & AUGHTRY


                                                By:     lsi Kevin D. Jewell
                                                        Kevin D. Jewell
                                                        State Bar No. 00787769
                                                        1200 Smith Street, Suite 1400
                                                        Houston, Texas 77002
                                                        (713) 658-1818
                                                        (713) 658-2553 (fax)

                                                ATTORNEYS FOR DEFENDANTS




                                                   14
                               CERTIF1CATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing document has been
forwarded to the following counsel of record in accordance with the electronic seiVice rules on
this 26th day of August, 2015 as follows:




                                                 lsi Kevin D. Jewell
                                           Kevin D. Jewell


ScottSanes
Rice & Sanes, LLP
Pearland Town Center Offices East
11200 Broadway, Suite 2705
Pearland, Texas 77584
(713) 799-8400 (teL)
(888) 328-7060 (fax)
scottsanes@aol.com




                                              15
                                    CAUSE NO. 82302-CV

ASIILEYNICOLERAMSEY,                            §                IN THE DISTRICT COURT OF
                                                §
       Plaintiff                                §
                                                §
v.                                              §
                                                §
DUSTIN RAY CONDRY, JORO CONDRY,                 §               BRAZORIA COUNTY, TEXAS
ERIC RAYE RIEGER and IRON MAN                   §
EXPRESS, LLC.                                   §
                                                §
       Defendant                                §                   412Til JUDICIAL DISTRICT


                         AFFIDAV1T OF~ I I HEW GARRETI


       Before me, the undersigned authority, on this day personally appeared Matthew Garrett,
who, b~ing by me duly sworn, stated under oath the following:

       I.     My name is Matthew Garrett. I am over the age of 18 years. I have personal
              knowledge of the facts stated in this affidavit and I am in all respects qualified to
              make the same. I am of SOWld mind, and have never been convicted of a felony
              or misdemeanor involving moral twpitude. The statements contained herein are
              true and correct.

       2.     I am the registered agent of Defendant, Ironman Express, LLC ("Ironman") which
              was a domestic transportation company with its principal place of business at 50 I
              W. Mulberry in Angleton, Texas. Ironman Express ceased doing business on or
              about July 30, 2014. After this time I went to work for another company in New
              BraWlfels, Texas and mail addressed to myself and/or lronman was forwarded
              from 501 W. Mulberry, Angleton, TX to my address at 4975 IH 35 South, New
              Braunfels, Texas 78132.

       3.     On or about April 10, 2014 a vehicle performing work for Ironman was involved
              in a coll ision in Brazoria Cow1ty on SH 288 South with an automobile driven by
              Irsat Seyda ("the Seyda accident") which accident resulted in a suit being fi led in
              the United States District Court for the Southern District of Texas Houston
              Division. I submitted that lawsuit to lrooman's insurance agent and the insurance
              carrier ultimately defended lrorunan and Eric Reiger and later settled the case.

       4.     Unbeknownst to me at the time, the police investigation from the Scyda accident
              closod SH 288 for a period of time during which time somewhere quite a distance
              up SH 288 Plaintiff, Ramsey herein, claims that she suffered injuries when her
              automobi le was rear endod by a vehicle owned and operated by the Condry



                                                                                         EXHIBIT

                                                                                           I
      Defendants herein. 1 had no notice of the Ramsey-Condry accident which fonns
      the basis of this lawsuit until much later in 2014.

5.    In late January, 2015, as registered agent for Ironrnan, r was served with the
      Original Petition in this lawsuit by the process server who had previously
      attempted to serve roe with process at the 50! W. Mulberry address in Angleton
      which was ironrnan' s address when it W!!S doing business. I provided my new
      address in New Braunfels to the process server by telephone and T also agreed in
      advance to meet him on HWY 46 in New Braunfels at about 2 :00p.m. to accept
      service of process.

6.    On or about February 2, 2015 after accepting service of this lawsuit I submitted
      the lawsuit paperwork to Ironrnan's insurance agent just as I had done in the
      Seyda matter. Consistent with my practice I anticipated and intended that the
      insurance carrier would handle the suit in a similarly appropriate matter. Since I
      knew that the insurance carrier had defended Ironman and Eric Reiger and
      ultimately settled the Seyda claim, I believed that this matter was being defended.
      It was always my intention that Ironman and Eric Reiger defend any claims
      arising out of the April lO, 2014 incident.

7.    On or after July 28, 2015 I received Notice of JudgmeJJt from the Brazoria County
      District Clerk indicating that a Final judgment was rendered on July I, 2015. The
      notice was mailed to the 501 Mulberry St. address, although by that date the
      process server knew that I was no longer there. The notice of Final Judgment that
      I received from the District Clerk was forwarded to me by the post office from the
      50 I W. Mulberry St. address to my cum.'Ill address in New Braunfels. This was
      the first notice or knowledge that I had that a Default judgment had rendered.

8.    After receiving the Notice of Final Judgment I called Eric Reiger to determine if
      he knew of the Default judgment or had received notice of the Final Judgment and
      he had not yet received notice. A short time later Eric Reiger called and indicated
      that he had just -opened mail to find a Notice of Juqgment. I then sent the lawsuit
      papers by e-mail to Logan Batlle, Ironman's insurance agent Ultimately, I
      learned that the Logan Batlle agent had not forwarded the lawsuit papers or
      service documents related to the lawsuit to the insurance carrier in this case as it
      had done in the Sey\la matter. In turn, the insurance carrier did not hire a lawyer
      to represent Ironman or Eric Reiger and it did not file answers to the suit and
      ultimately a Final Judgment was rendered.

9.    Ironman's and Reiger's failure to answer and respond to the lawsuit was the result
      of a mistake and not because of conscious indifference.

10.   July 28, 2015 is more than 20 days, but less than 90 days, after the date of the
      j udgment, July I , 2015.

Further affiant sayeth naught."



                                       2
STATE OF TEXAS             §
                           §
COUNTY OF COMAL            §


       Before me the undersigned, Matthew Garrett personally appeared and after being duly
sworn did make the above affidavit.



      Sworn to and subscribed before me on the       .J. 5   day of August, 2015.


                                                         ~LU-~
                 e             PAIUr.tllolllZ
                         MY COMMISSION EXPIRES
                            o-tbw12,3117
                                                       N      Pubhc m and for
                                                       The State ofTexas




                                                 3
                                    CAUSE NO. 82302-CV

ASHLEY NICOLE RAMSEY,                           §                IN THE DISTRICT COURT OF
                                                §
       Plaintiff                                §
                                                §
v.                                              §
                                                §
DUSTIN RAY CONDRY, JORG CONDRY,                 §               BRAZORIA COUNTY, TEXAS
ERIC RAYE RIEGER and IRONMAN                    §
EXPRESS,LLC.                                    §
                                                §
       Defendant                                §                   4 12TH JUDICIALDISTRlCT


                          AFFIDAVIT OF ERIC RAYE RIEGER


       Before me, the undersigned authority, on this day personally appeared Eric Raye Rieger,
who, being by me duly sworn, stated under oath the following:

       1.     My name is Eric Raye Rieger. -I am over the age of 18 years. I have personal
              knowledge of the facts stated in this affidavit and I am in all respects qualified to
              make the same. I am of sound mind, and have never been convicted of a felony
              or misdemeanor involving moral turpitude. The statements contained herein are
              true and correct

       2.     On or about April I 0, 2014, a vehicle I was driving while performing work for
              Ironman Express, Inc. was involved in a collision in Brazoria County on SH 288
              South with an automobile driven by Irsat Seyda ("the Seyda accident"). The
              Seyda accident resulted in a suit being filed in the United States District Court for
              the Southern District of Texas Houston Division against myself and lronman.
              After I was served with citation and a eopy of the complaint, I provided the suit
              papers to Ironrnan, which then submitted the lawsuit paperS to its insurance agent.
              The insurance carrier ultimately defended the lawsuit, then settled the case.

       3.     Unbeknownst to me at the time, the police investigation from the Seyda accident
              closed SH 288 for a long period of time during which--and at a location quite a
              distance up SH 288 from where the Seyda accident occurred--Plaintiff, Ramsey
              herein, claims that she suffered injuries when her automobile was rear ended by a
              vehicle owned and operated by the Condry Defendants herein. l did not hit
              Ramsey's vehicle and I was not involved in the Ramsey-Condry accident. I h.ad
              no notice of the Ramsey-Condry accident which forms the basis of this lawsuit
              until much later in 2014.




                                                                                         EXHIBIT

                                                                                  j         2
4.   In late January2015, I wns served with process in this lawsuiL After being served
     in this lawsuit, I submitted the paperworic to Matthew Garren as I had in the
     Seyda matter and I assumed and expected that the insurance company bad hired,
     or would hire, a lawyer to defend me as it had in the Scyda case and that
     eventually this case also would be settled. It was always my intenti on to be
     defended in this lawsuit.

5.   On or after July 28, 2015, which was just subsequent to a railing trip that I had
     taken, Matthew Garrett telephoned me and indicated that he had received notice
     that a Final judgment had been signed in this case. He asked me if I had received
     such a notice, but I had not.

6.   After learning from Matthew Garrett that he had received Notice of a Final
     Judgment in this case I checked with the pawnshop next door to 501 W.
     Mulberry, at which location the postman leaves what little mail that is addressed
     to me at 501 W. Mulberry, Angleton, Texas. I then discovered that I, too, bad
     been sent letter from the Brazoria County District Clerk stating that a Final
     Judgment had been entered. The clerk's letter was dated July 10, 2015. A true
     and correct copy of the clerk's July 10, 2015 letter is attached hereto as Exhibit A
     I fust learned that a final judgment bad been entered in this case, at the earliest, on
     July 28, 2015, although it may have been a day or two later.

8.   I then informed Matthew Garrett that I, too, had now received a Notice of Final
     judgment and he indicated he would again notify the insUrance agent.

9.   July 28, 2015 is more than 20 days but less than 90 days after the date of the
     judgment, July I, 2015.
      Further affiant sayeth naught."




                                                  Eric Raye Rieger

STATEOFTEXAS                §
                   §
COUNTY OF BRAZORIA §


       Before me the undersigned, Eric Rayc Rieger personally appeared and after being duly
sworn did make the above affidavit.



       Sworn to and subscribed before.me on the Jtf'"lilday of August, 2015.



                                                  Notary Pliblic in and for
                                                  The State ofTexas
                                           CAUSE NO. 82302-CV

ASHLEY NICOLE RAMSEY,                                 §               IN THE DISTRICT COURT OF
                                                      §
            Plaintiff                                 §
                                                      §
v.                                                    §
                                                      §
DUSTIN RAY CONDRY, JORO CQNDRY,                       §               BRAZORIA COUNTY, TEXAS
ERIC RAYE RIEO.ER and IRONMAN                         §
EXPRESS,U£.                                           §
                                                      §
            Oefmdaot                                  §                  4121>1 JUDICIAL DISTRICT


                         AFJ1JDAvtT OF LOGAN CBRISfOPHER BATLLE


            l.lefore me, the undersigned authority, on this da:y personally appeared lAglln Christopbec
B.atll~:,    who, being.by me.duly sw0111, stated under oath the following:

            I.     ''My name is Logan Christopher Batlle. I am over the age of 18 year3. I have
                   personal knowled'gc of tho facts stated in this affidavit and I am in all respects
                   qualified to make tbe same. I am of sound mind and have never been convicted
                   of a felony or misdemeanor involving moral turpitude. Th.e statements contained
                   herein are true and correct.

            2.     I am a !icensed insurmce agent working for McKamie lnsutiiiiC<I Agency in
                   S.o uthlake, Texas. Maubew Oarrett and Defendant, lronman Express, ILC
                   MtoomanJ,,a domestic transportation company, are among my clients.

            3.     On or aboUt Ajlri,ll 0, 2014, while performing work for Ironman, a vehicle driven
                   by. J)ef~ Etic R.aye Reiger was involved in a collision in Brazoria Gou.nty
                   <in SH 288 'South with an automobile driven by Irsat Seyda (''the Seyda
                   ~ccidenf') whlcll aooident resulted in a sujt being filed againSJ Mr. Reiger and
                   Iromn~!:l In (be Uniled Slates. District Court for the Southern District Qf Texa$
                   .HOI.ISt~>n Division.


            4.     .A fter the ·!'OA!Plilint and other lawsuit paperwork in the Seyda ~ccide!Jt wei:e
                    $11bmltted tO. me as the agent, l promptly forwarded them to the insur.mc» ,carrier
                    wbicl) js my stan~ and tustomaxy practice. The ln.surancc carrier, in tum,
                    hired. c.iiunsd to defend lronmaD an<! Reiger, which is ilB customary practice, anjl
                    the ~·"(aS·settl~

            5.     Unbeknownst to me at the time, the police inveStigation from the 'Seyda accident
                   closed SH 2'88 for a period of time during which time SOI!Iewhc:rc quit" a diitanoe




                                                                                                EXHIBIT

                                                                                         I        3
             up SH 2?8 from the Seyda accident. Plaintiff; Ramsey claims that she suffered
             injuries when her automobile WWI rear ended by a vehicle owned and operated by
             the Cclndry Defendants herein. I had no notice of the Ram'ey..COndry accident
             which forms the bo8is of this laWl!uit until much later in 2014.

      6.     On or ·about February 2, 2015, pursuant to an ongoing business relationship with
             Matthew Garrett, I received an e-mail with several atlachments. The content of
             tho email involved mainly business matters other than the Ramsey .lawsuit. I
             opened the ·fust two attachments to the email, which pertained to thQSe otb<lr
             business mailers. However, by oversigbl. I did not open the third attachment
             Included in the third attachment was a copy of the petition and CJCher lawsuit
             popers relating to the Ramsey lawsuit I <ti!l not realize that the third atbchment
             to the e-mail included a copy of the petition and other lawsuit papers showing that
             that this la.wsuit bad been servod upon Ironman and Mr. Rieger, Had I known that
             the.ailacbments oontaiued a service copy of the Ramsey lawsuit, I would have
             iinme<tiately forwarded the same to the insurance canier, consistent with my
             standard pnl(:ticc, and as I <tid in the Seyda matter. Als~ my usual practice is to
             routinely read all my emails and attachmems; however, on this occasion, I did not
             sec the third attachment.

    · 7.     As a result of ibis oversight, I did not follow standard practice by immediately
             forWarding the lawsuit to the insurnoce canier. The. inSII1'3nce ~rrier, in t.urn, did
             not hire a lawyer to file an answer and defend the Defl:s)dants, resulling in a
             Defauh Judgment 1hat appears to have be.en rendered on July 1, 2015. This
             o)llizsiQO was the result of an simple oversight and was not the result of conscious
             indifference. Had the oversight not occurred, I would have forwarded the lawsuit
             to the insurance carrier and I would have expected the insurance carrier to hire
             counsel to timely tile 3n answer and otherwise app~:Qpriately rospond to the
             lawsuit as it had for the Seyda ac:cideol


      FW1ber affiant sayctb naugtht.~




                                                   ~~i••-------
ST'ATE OF TEXAS             ·§
            ..r              §
COUNTY OF fe..t~M t--       §




                                               2
               Before me the undersigned, Logan Christopher BatUe pen;onaUy appeared and after being
        duly sworn did make the above affidaviL




                                                                                                       I
                                                                                                       I
                                                                                                       I
                                                                                                       I
                                                                                                       I·




i

~---------~------------------~~--~-----------------~
l
      Ill   E..._,   Sic. !00                                                                        919-164-1)"
                                                                                                     9'19.J#.I)I6
       """"""'TXnm                                                                                   211·l S6-Il16
    www.hrJadt :(Oia'Y..taat




                                                  RHONDA BARCHAK
                                           BRAWRIA COI/IITY DISTRICT CLI!RK

                                                                                             July 10, 20"
    Eric Rayo Rieger
    lronman Express
    '0 I W Mulbeny
   Angleton TX       ns 1s

   R£: C.ase Nil.! 82302-CV, In tile 41ltb District Court
       Sly~: .UMey Nicole Ramsey n. Iron man Espr. . LLC, et al




   To Whom h May Concern:

   Oo July I, 2015, the following order was entered: Final Judament.


   In accordanco with:

                  Rules of Civil Procedure 306 (a) 3, the clerk of the court shall immediately give notice to the
                  parties or tlwir attorneys of recDrd by first-class mail advising that the jud8J11ent or order was
                  signed.


   A certifocd copy, with the cxcqllion of sealc:d doaJments, may be purc!wc:d for Sl per page plus $1 for certification
   by contaCting us a1 the above address, or ordering online alwww.bral!)[ia-eou!!l'f.eomldclenc.

   Please n01e we do mt accep1 personal cbccks. AU payments muSI be made by casl1, Cashier's Chec.k, Money Order
   or credit eard made payable to Rltonda Barcllok, Distri<t Clerk.
                                                                                                                           '·
   Sincerely,
   RHONDA BARCHAK, Dist rict Oerk




   Melinda Cloud, Deputy
                                FILE COPY
   CC: file




                                                                                                            EXHIBIT
---~==~--------------~·J
   Nodce of Jud~ment                                                                                   ~       ~~'._        :
                                                                                                                           I
                                                                                     Fi ed for Record
                                                                                     11/912015 1:43:45 PM
                                                                                     Rhonda Barchak, District Cieri<
                                                                                     Brazoria County. Texas
                                                                                     82302-CV
                                                                                     Kim Mire, Deputy

                                          NO. 82302-CV

ASHLEY NICOLE RAMSEY,                               §              IN THE DISTRICT COURT OF
                                                    §
       Plaintiff                                    §
                                                    §
v.                                                  §
                                                    §              BRAZORIA COUNTY, TEXAS
ERIC RAYE RIEGER, and                               §
IRONMAN EXPRESS, LLC                                §
                                                    §
       Defendants                                   §                 412th JUDICIAL DISTRICT


                           DEFENDANT'S NOTICE OF APPEAL

TO THE HONORABLE COURT:

       Defendant Eric Raye Rieger intends to appeal the trial court's Order signed on November

3, 2015, pursuant to Rules 25.1(d) and 26.1(c) of the Texas Rules of Appellate Procedme, as

well as from the trial court's judgment dated July 1, 2015. This appeal is taken to either the First

or Fourteenth Court of Appeals in Houston, Texas. Tills is a restricted appeal.

                                              Respectfully submitted,

                                              BURT, BARR & O' DEA, L.L.P

                                              By:       Is/ Jeffry P. 0 'Dea
                                                        Jeffry P. O'Dea
                                                        State Bar No. 15192400
                                                        3900 Essex Lane, Suite 330
                                                        Houston, Texas 77027
                                                        Telephone: (713) 650-8700
                                                        Facsimile: (713) 655-8383
                                          CHAMBERLAIN, HRDLICKA, WHITE
                                              WILLIAMS & AUGHTRY


                                          By:Is/ Kevin D. Jewell
                                              Kevin D. Jewell
                                              State Bar No. 00787769
                                              1200 Smith Street, Suite 1400
                                              Houston, Texas 77002
                                              (713) 658-1818
                                              (713) 658-2553 (fax)
                                         ATTORNEYS FOR DEFENDANT


                              CERTIF1CATE OF SERVICE

        I hereby certify that a true and correct copy of Defendants' Motion to Extend Post-
Judgment Deadlines has been forwarded to the following counsel of record in accordance with
the electronic service rules on this_ day of November, 2015 as follows:


Scott Sanes
Rice & Sanes, LLP
Pearland Town Center Offices East
11200 Broadway, Suite 2705
Pearland, Texas 77584
(713) 799-8400 (tel.)
(888) 328-7060 (fax)
scottsanes@aol.com



                                                Is/ Kevin D. Jewell
                                          Kevin D. Jewell


20208721
003925 ..000032




                                            2
