                                                                                                   ACCEPTED
                                                                                              03-14-00643-CV
                                                                                                     4149937
                                                                                    THIRD COURT OF APPEALS
                                                                                               AUSTIN, TEXAS
                                                                                         2/13/2015 3:25:01 PM
                                                                                            JEFFREY D. KYLE
                                                                                                       CLERK
                            NO. 03-14-00643-CV
     ________________________________________________________________
                                                                         FILED IN
                        IN THE COURT OF APPEALS         3rd COURT OF APPEALS
                                                            AUSTIN, TEXAS
                   FOR THE THIRD DISTRICT OF TEXAS
                                                        2/13/2015 3:25:01 PM
                              AUSTIN, TEXAS
                                                          JEFFREY D. KYLE
     _________________________________________________________________
                                                                Clerk

                                     MONTE MONTGOMERY,
                                          Appellant,

                                            v.

                         MONTY HITCHCOCK,
                                Appellee
  ____________________________________________________________________

       On Appeal from the 250th Judicial District Court of Travis County, Texas
                           Cause No. D-1-GN-14-000489
                      The Honorable Jon N. Wisser Presiding
       ______________________________________________________________

                               APPELLEE’S RESPONSE BRIEF

       ______________________________________________________________


                                                 Jon M. Smith
                                                 State Bar No. 18630750
                                                 3305 Northland Drive
                                                 Suite 500
                                                 Austin, Texas 78731
                                                 Telephone: (512) 371-1006
                                                 Facsimile: (512) 476-6685
                                                 jon@jonmichaelsmith.com

                                                 Attorney for Appellee




ORAL ARGUMENT REQUESTED

Appellee’s Response Brief – Page 1
                            REQUEST FOR ORAL ARGUMENT

            Appellee requests oral argument. Because of the unique nature of the issues

     presented in this case, oral argument will assist the court in reaching its decision.




Appellee’s Response Brief – Page 2
                         IDENTITY OF PARTIES AND COUNSEL


Appellant:                                Monte Montgomery

Appellant’s Counsel:                      Trial Counsel:

                                          Adam R. Hardison
                                          Hardison Law Firm
                                          5050 Quorum Drive
                                          Suite 700
                                          Dallas, Texas 75254

                                          Trial and Appellate Counsel:

                                          Steven R. Samples
                                          Samples Law Group
                                          2605 Airport Freeway
                                          Suite 100
                                          Fort Worth, Texas 76111
                                          srs@stevesamples.com


Appellee:                                 Monty Hitchcock

Appellees’ Counsel:                       Jon M. Smith
                                          State Bar No. 18630750
                                          3305 Northland Drive
                                          Suite 500
                                          Austin, Texas 78731
                                          Telephone: (512) 371-1006
                                          Facsimile: (512) 476-6685
                                          jon@jonmichaelsmith.com




Appellee’s Response Brief – Page 3
                               REFERENCE TO THE PARTIES

        Appellee will refer to Appellant, Monte Montgomery as “Montgomery” in his

brief. He will refer to Appellee as “Hitchcock.”



                               REFERENCE TO THE RECORD

Reference                            Meaning

C.R. ___                             Clerk’s Record at page ___




Appellee’s Response Brief – Page 4
                                     TABLE OF CONTENTS

                                           PAGE
REQUEST FOR ORAL ARGUMENT…………………………………………………...2

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

REFERENCE TO THE PARTIES ……………………………………………………….4

REFERENCE TO THE RECORD ……………………………………………………….4

TABLE OF CONTENTS……………………………………………………………..…...5

INDEX OF AUTHORITIES ……………………………………………………………...7

STATEMENT OF THE CASE ………………………………………………………….10

STATEMENT OF FACTS ……………………………………………………………...10

STANDARD OF REVIEW ……………………………………………………………..11

SUMMARY OF THE ARGUMENT …………………………………………………...12

ARGUMENT AND AUTHORITIES …………………………………………………...12

        A. The minor discrepancies in the citation complained about by Montgomery are
           not sufficient to render service invalid………………………………………..13

        B. Montgomery’s affidavit is insufficient to overcome the prima facie evidence of
           the officer’s return…………………………………………………………….17

        C. Montgomery waived his appellate points by failing to secure a hearing on his
           motion for new trial…………………………………………………………...19

        D. There is ample evidence in the record to support the court’s damage award...20


CONCLUSION ………………………………………………………………………….22

PRAYER ………………………………………………………………………………...22




Appellee’s Response Brief – Page 5
CERTIFICATE OF COMPLIANCE…………………………………………………….23

CERTIFICATE OF SERVICE ……………………………………………………….....24




Appellee’s Response Brief – Page 6
                                           INDEX OF AUTHORITIES

CASES                                                                                                               PAGE

Abcon Paving, Inc. v. Crissup, 820 S.W.2d 951, 953 (Tex. App.—Fort Worth 1991, no
writ)………………………………………………………………………………............21

Blackburn v. Citibank, N.A., 2006 Tex. App. LEXIS 5062 (Tex. App.—Dallas 2006)…15

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002)………………………......11

Cervantes v. Cervantes, No. 03-07-00381-CV, 2009 Tex. App. LEXIS 8565 (Tex.
App.—Austin 2009, no writ)…………………………………………………….............18

Conner v. W.C. Bowman Lumber Co., 45 S.W.2d 237, 239 (Tex. Civ. App.—Austin
1931, no writ)………………………………………………………………….................14

Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978)………………………………….........11

Fluty v. Simmons, 835 S.W.2d 664, 666 (Tex. App.—Dallas 1992)………………….....19

Garza v. Phil Watkins, P.C., No. 04-07-00848-CV, 2009 Tex. App. LEXIS 1588 (Tex.
App.—San Antonio 2009, dismissed at 2010 Tex. App. LEXIS 9432)………………....16

Gatlin v. Dibrell, 74 Tex. 36 11 S.W. 908, 909 (1889)………………………….............18

Gruensteiner v. Cotulla I.S.D., No. 04-07-00847, 2008 WL 4595034 (Tex. App.—San
Antonio Oct. 15, 2008, no pet.)…………………………………………………….........18

Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.—Dallas 1994, no writ)……….......21

K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000)………………………......11

Limestone Constr. v. Summit Commer. Indus. Props., 143 S.W.3d 538 (Tex. App.—
Austin 2004)........…...........................................................................................................20

Mobilevision Imaging Servs., L.L.C. v. Lifecare Hosps. of N. Tex., L.P., 260 S.W.3d 561,
564 (Tex. App.—Dallas 2008, no pet.)………………………………..............................11

Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App.—Corpus
Christi, 1996, writ denied)…………………………………………….............................15


Appellee’s Response Brief – Page 7
Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [14th Dist.] 1987,
writ ref'd n.r.e.)……………………………………………………………………..........15

Popkowsi v. Gramza, 671 S.W.2d 915, 918 (Tex. App.--Houston [1st Dist.] 1984, no
writ)………………………………………………………………………........................16

Pratt v. Moore, 746 S.W.2d 486 (Tex. App.—Dallas 1988, no writ)………………...…14

Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)…………………........17

Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950)…………………….......18

Shamrock Roofing Supply, Inc. v. Mercantile National Bank, 703 S.W.2d 356 (Tex.
App.—Dallas 1985, no writ)……………………………………………..........................20

Simms v. Miears, 190 S.W. 544, 544 (Tex. Civ. App.—Austin 1916, no writ)………....14

Stovall v. Avalon Hair, No. 03-97-00259-CV, 1998 Tex. App. LEXIS 7591 (Tex. App.—
Austin 1998, no writ)…………………………………………………………….............19

Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972)…………………………………..........17

Williams v. Williams, 150 S.W.3d 436, 443 (Tex. App.—Austin 2004, pet. denied)...…13

Wilson v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60 (Tex. 1990)……………..13



TEXAS RULES OF CIVIL PROCEDURE

Tex. R. Civ. P. 99(b)(8).....................................................................................................13

Tex. R. Civ. P. 324(b)........................................................................................................19




Appellee’s Response Brief – Page 8
                            NO. 03-14-00643-CV
     ________________________________________________________________

                        IN THE COURT OF APPEALS
                   FOR THE THIRD DISTRICT OF TEXAS
                              AUSTIN, TEXAS
     _________________________________________________________________

                                     MONTE MONTGOMERY,
                                          Appellant,

                                            v.

                         MONTY HITCHCOCK,
                                Appellee
  ____________________________________________________________________

       On Appeal from the 250th Judicial District Court of Travis County, Texas
                           Cause No. D-1-GN-14-000489
                      The Honorable Jon N. Wisser Presiding

       ______________________________________________________________

                               APPELLEE’S RESPONSE BRIEF

       ______________________________________________________________




TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

        Appellee, Monty Hitchcock, files this response brief requesting that this Court

affirm the Final Judgment, and would show as follows:




Appellee’s Response Brief – Page 9
                                 STATEMENT OF THE CASE

        This is a simple suit on a promissory note. Montgomery seeks to have the default

judgment taken against him reversed based on two inconsequential and minor matters in

the citation and return.




                                      STATEMENT OF FACTS

        Montgomery entered into a promissory note in the amount of $50,000.00 with

Hitchcock on May 31, 2010. [CR 4] Montgomery made some payments on the note in

2010, but made no payments after December 2010. [CR 4] Hitchcock gave Montgomery

notice of default under the note on January 13, 2014. [CR 4] Montgomery made no

payment in response to that notice. [CR 4]

        Hitchcock filed suit against Montgomery in the 250th Judicial District of Travis

County, Texas on February 17, 2014. [CR 3-5] Jerry Melber, a Texas Supreme Court

certified private process server attempted to serve Montgomery on five occasions but was

unable to serve him personally. [CR 13] Hitchcock moved for substitute service on May

13, 2014 and Judge Lora Livingston granted the motion on May 14, 2014. [CR 11]

        The Order for Substituted Service Upon Defendant, Monte Montgomery stated

that service upon Montgomery could be effected by one of the following methods: “(1)

Leaving a copy of the citation, with a copy of the petition attached, with anyone over

sixteen years of age at 4415 Cisco Valley Drive, Round Rock, Texas 78664; or (2) By

affixing a copy of the citation, with a copy of the petition attached, to the door of 4415

Appellee’s Response Brief – Page 10
Cisco Valley Drive, Round Rock, Texas 78664.” [CR 11] Mr. Melber complied with the

order by posting a copy of the citation and petition attached to the door of 4415 Cisco

Valley Drive, Round Rock, Texas on May 5, 2014. [CR 13]

        Mr. Montgomery did not answer within the time required by law. Judge John

Wisser signed a final judgment in favor of Hitchcock and against Montgomery on July 9,

2014. [CR 17] Montgomery filed a motion for new trial on August 8, 2014. [CR 22]

There is no evidence in the record that he made any effort to set the motion for new trial

for hearing. Therefore, it was overruled by operation of law on September 22, 2014.

Montgomery filed his notice of appeal on October 7, 2014. [CR 60]




                                      STANDARD OF REVIEW
        A trial court’s denial of a motion for new trial after a no-answer default is

reviewed for an abuse of discretion. Mobilevision Imaging Servs., L.L.C. v. Lifecare

Hosps. of N. Tex., L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2008, no pet.). A trial

court abuses its discretion if it acts arbitrarily and unreasonably or without regard to

guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

An abuse of discretion does not occur with regard to factual matters as long as some

evidence reasonably supports the trial court’s decision. Butnaru v. Ford Motor Co., 84

S.W.3d 198, 211 (Tex. 2002). Nor does it occur when the trial court’s decision is based

on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).




Appellee’s Response Brief – Page 11
                              SUMMARY OF THE ARGUMENT
        As the following paragraphs establish, the trial court’s judgment should be

affirmed for the following reasons: (1) The minor discrepancies in the citation

complained about by Montgomery are not sufficient to render service invalid; (2)

Montgomery’s affidavit is insufficient to overcome the prima facie evidence of the

officer’s return; (3) Montgomery waived his appellate points by failing to secure a

hearing on his motion for new trial; and (4) There is ample evidence in the record to

support the court’s damage award.



                                ARGUMENTS AND AUTHORITIES
        Montgomery’s attempt to escape his failure to answer and the default judgment is

based on two minor discrepancies in the citation: (1) That the petition lists his address as

located in Travis County but the citation states that it is in Williamson County; and (2)

That the petition was filed on February 17, 2014 and the citation states it was filed on

February 18, 2014. These two minor discrepancies are not sufficient to render service

invalid and Montgomery waived his complaints by failing to attempt to obtain a hearing

on his motion for new trial.




Appellee’s Response Brief – Page 12
A.      The minor discrepancies in the citation complained about by Montgomery
         are not sufficient to render service invalid.


        As Montgomery argues, it is true that service of citation must be in strict

compliance with the rules of civil procedure to establish jurisdiction of a defendant and

support a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).

However, “strict compliance with the rules does not require obeisance to the minutest

detail.” Williams v. Williams, 150 S.W.3d 436, 443 (Tex. App.—Austin 2004, pet.

denied). As long as the record as a whole, including the petition, citation, and return,

shows that the citation was served on the defendant in the suit, service of process will not

be invalidated. Id.

        Montgomery’s complaint that the citation showed the county of his residence as

Williamson instead of Travis County ignores the fact that both documents accurately

stated his address as “4415 Cisco Valley Drive, Round Rock, Texas 78664.” [CR 3 and

14] It also ignores the fact that the order authorizing substitute service did not list the

county in the address. [CR 11]

        Round Rock is a city that is partially in Travis County and partially in Williamson

County. http://www.landsoftexas.com/county-data-for-williamson-county-texas. There is

no evidence in the record that there is a “4415 Cisco Valley Drive, Round Rock, Texas

78664” in both Williamson County and Travis County. Therefore, there is no question as

to whether the citation was served at the correct address. The Texas Rules of Civil

Procedure do not require that the county be included in an address, only that the “citation

shall be directed to the defendant.” Tex. R. Civ. P. 99(b)(8). Because the citation was

Appellee’s Response Brief – Page 13
directed to the defendant, Monte Montgomery, at his undisputedly correct address,

service was valid and any discrepancy in the name of the county is immaterial.

        This case is similar to Pratt v. Moore, 746 S.W.2d 486 (Tex. App.—Dallas 1988,

no writ). In Pratt, the defaulting appellant argument that service was invalid because the

return of citation stated that it was executed at 10001 Woodlake Drive, but neglected to

state the name of the city. Pratt, 746 S.W.2d at 487. The court held that there was no

requirement of an accurate address in the order for substitute service and that the absence

of the name of the city was not fatal to substitute service. Pratt, 746 S.W.2d at 488.

        Montgomery cites two very old cases for the proposition that the incorrect date of

filing in the citation mandates reversal of the default judgment. Simms v. Miears, 190

S.W. 544, 544 (Tex. Civ. App.—Austin 1916, no writ); and Conner v. W.C. Bowman

Lumber Co., 45 S.W.2d 237, 239 (Tex. Civ. App.—Austin 1931, no writ). These cases

are not applicable for the following reasons.

        The statement in the Conner case regarding the discrepancy between the date of

filing and the date set forth in the citation was dicta. Conner, 45 S.W.2d at 239. The

parties were in agreement that the appeal should be dismissed and the court obliged them.

Id.

        In the Simms case the petition was filed on October 6, 1915, but the citation stated

it was filed on October 5, 2015. Simms, 190 S.W. at 544. The plaintiff argued that the

defect was technical and could not affect the rights of the parties. Id. But the court held

that because the citation showed an earlier date than the petition was actually filed, it

could affect the defendants’ belief as to whether they could bring a statute of limitations

Appellee’s Response Brief – Page 14
defense. Id. In the instant case, the citation states a date one day later than the date the

petition was actually filed.          This minor discrepancy would not lead a party astray

regarding a potential statute of limitations defense and is thus truly a technical defect that

has no impact whatsoever on the rights of the parties.

        The more modern approach is to analyze whether the alleged defect in the citation

has any bearing on the rights of the defendant and whether he was actually served. In the

Williams case, the citation did not include the name of the petitioner as required by Texas

Rule of Civil Procedure 99(b)(7). Williams v. Williams, 150 S.W.3d at 443. The court

stated that, “although our jurisprudence requires strict adherence to the rules regarding

service of citation, it does so to ensure that there is no questions about whether the proper

party has been served before a default judgment is rendered.” Williams, 150 S.W.3d at

444.

        In Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App.—

Corpus Christi, 1996, writ denied) the court of appeals refused to overturn a default

judgment despite discrepancies in the name of the defendant in the citation.            “The

omission of the accent mark and the substitution of the symbol “@” for the word “at” are

akin to the errors that do not invalidate service.” Ortiz, 926 S.W.2d at 613. In Blackburn

v. Citibank, N.A., 2006 Tex. App. LEXIS 5062 (Tex. App.—Dallas 2006) the court of

appeals refused to reverse a default judgment despite the defendant “David Brian

Blackburn” being listed as “David B. Blackburn” in the citation. See also Payne &

Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd

n.r.e.) (judgment upheld where petition and citation reflected registered agent "Philippe

Appellee’s Response Brief – Page 15
Petitfrere," the return reflected "Philipee Petitfreere"); Popkowsi v. Gramza, 671 S.W.2d

915, 918 (Tex. App.--Houston [1st Dist.] 1984, no writ) (judgment upheld where there

was dispute of fact whether handwritten return of service said "Michael Poprowski" or

"Michael Popkowski").

        In Garza v. Phil Watkins, P.C., No. 04-07-00848-CV, 2009 Tex. App. LEXIS

1588 (Tex. App.—San Antonio 2009, dismissed at 2010 Tex. App. LEXIS 9432),

Watkins took a default judgment against Garza. Garza complained that he was never

served and offered his own affidavit and that of his wife in support of that claim. Garza at

p. 6. Garza claimed that, “the officer’s return, which recites that Garza was served at 1-

Mile North of Hwy 186 on County Rd 45 Raymondville, TX while Garza averred in his

affidavit that he lives at 2 Miles North Highway 186 on County Road 45, Raymondville,

Texas.”     Id.   The court found that most of Garza’s evidence was self-serving and

uncorroborated, except by his wife. Garza at p. 8. As a result, the court of appeals

refused to overturn the default judgment.

        The discrepancies alleged by Montgomery are the type of “minute” detail that do

not require invalidation of the citation of service in this case. The record as a whole,

including the petition, citation, and return, shows that the citation was served on Mr.

Montgomery, so the service of process should not be invalidated and the judgment should

be affirmed.




Appellee’s Response Brief – Page 16
B.      Montgomery’s affidavit is insufficient to overcome the prima facie evidence of
        the officer’s return

        The order for substituted service stated, “The following methods will be

reasonably effective to give Defendant, Monte Montgomery, notice of the lawsuit. IT IS

ORDERED that service on Monte Montgomery be effected by one of the following

methods: (1) Leaving a copy of the citation, with a copy of the petition attached, with

anyone over sixteen years of age at 4415 Cisco Valley Drive, Round Rock, Texas 78664;

or (2) By affixing a copy of the citation, with a copy of the petition attached, to the door

of 4415 Cisco Valley Drive, Round Rock, Texas 78664.” [CR 11] The return of citation

evidences strict compliance with the court’s order. It states that the citation was executed

at 4415 Cisco Valley Drive, Round Rock, Texas 78664 “By delivering to Monte

Montgomery . . . by posting to the door.” CR 14.        The only evidence that service of

citation was not accomplished in strict compliance with the court’s order is Mr.

Montgomery’s uncorroborated statement in his declaration that, “I was never served with

the lawsuit. If a copy of the lawsuit was posted to the door of my home I did not received

it.” CR 50.

        An officer’s return “has long been considered prima facie evidence of the facts

recited therein.” Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). The

return imports absolute verity and its recitations “carry so much weight that they cannot

be rebutted by the uncorroborated proof of the moving party.” Id. (citing Ward v. Nava,




Appellee’s Response Brief – Page 17
488 S.W.2d 736, 738 (Tex. 1972); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206,

209 (1950); Gatlin v. Dibrell, 74 Tex. 36 11 S.W. 908, 909 (1889).

         In Cervantes v. Cervantes, No. 03-07-00381-CV, 2009 Tex. App. LEXIS 8565

(Tex. App.—Austin 2009, no writ), this court held that a trial court had not abused its

discretion in denying a motion for new trial despite the defendants’ affidavits stating that

they had not been served1. The two defendants each submitted affidavits attached to their

motion for new trial that they had not been served with the citation. Cervantes at p. 14.

This court held that, “Because appellants’ proof is uncorroborated, it is insufficient to

rebut the recitation in the return that the sheriff’s deputy delivered it to the “within

named.” Thus the trial court did not abuse its discretion in denying appellants’ motion

for new trial on this basis.” Cervantes at p. 16. See also Gruensteiner v. Cotulla I.S.D.,

No. 04-07-00847, 2008 WL 4595034 (Tex. App.—San Antonio Oct. 15, 2008, no

pet.)(uncorroborated statement that defendant was not served was insufficient to rebut

recitations of service in return).

         Because the record demonstrates strict compliance with the court’s order regarding

substitute service, and because the only evidence to the contrary is Mr. Montgomery’s

uncorroborated and conclusory statement, the trial court did not abuse its discretion in

denying the motion for new trial by operation of law.




1
 This court did reverse the default judgment and remand the case to the trial court, but on other grounds. Cervantes
at p. 30.

Appellee’s Response Brief – Page 18
C.      Montgomery waived his appellate points by failing to secure a hearing on his
        motion for new trial


        There is no evidence in the record that Montgomery attempted to secure a hearing

on his motion for new trial. A motion for new trial is addressed to the trial court’s

discretion. Fluty v. Simmons, 835 S.W.2d 664, 666 (Tex. App.—Dallas 1992). The

court’s ruling on the motion will not be disturbed on appeal in the absence of a showing

of an abuse of discretion. Id. A motion for new trial to set aside a default judgment is a

complaint on which evidence must be heard Tex. R. Civ. P. 324(b). Id. Additionally, the

mere filing and overruling by operation of law of a motion for new trial preserves for

appellate review a complaint properly made in the motion only if taking evidence is not

necessary to properly present the complaint in the trial court. Tex. R. App. P. 33.1(b);

Stovall v. Avalon Hair, No. 03-97-00259-CV, 1998 Tex. App. LEXIS 7591 (Tex. App.—

Austin 1998, no writ) at p. 8.

        Texas courts have held on multiple occasions that a defendant’s failure to attempt

to secure a hearing on a motion for new trial amounts to a waiver of the complaint. In

Fluty v. Simmons, Simmons Company took a default judgment against Fluty. Fluty

appealed and the court of appeals affirmed.       In holding that Fluty had waived his

argument by failing to obtain a hearing on his motion for new trial, the court of appeals

stated Appellant should have given the trial court the opportunity to exercise its

discretion by seeing that his motion for new trial was set for a hearing. By failing to

Appellee’s Response Brief – Page 19
bring his motion for new trial to the trial court’s attention and allowing the motion to be

overruled by operation of law, we cannot say that an abuse of discretion has occurred

which would warrant a reversal. Fluty, 835 S.W.2d at 668.                                 There is no abuse of

discretion in the overruling of a motion for new trial by operation of law where the record

fails to show any attempt to obtain a timely hearing. Id.

         The same result was reached in Shamrock Roofing Supply, Inc. v. Mercantile

National Bank, 703 S.W.2d 356 (Tex. App.—Dallas 1985, no writ).                                        The court in

Shamrock held that in applying the Craddock and Strackbein standard, when a motion for

new trial requires the exercise of discretion, the trial judge must have the opportunity to

exercise that discretion before the court of appeals can hold that there is an abuse of

discretion. No abuse of discretion occurs when the defaulting defendant fails to call his

motion to the judge’s attention and allows the motion to be overruled by operation of law.

Shamrock, 703 S.W.2d at 357-358.2



D.       There is ample evidence in the record to support the court’s damage award3

         Montgomery argues that the amount of damages set forth in the judgment is not

supported by evidence. To the contrary, Monty Hitchcock’s affidavit, filed in support of

his default judgment on July 9, 2014, the same day as the judgment was signed, sets forth


2
  But See Limestone Constr. v. Summit Commer. Indus. Props., 143 S.W.3d 538 (Tex. App.—Austin 2004). In
Limestone, this court of appeals held that a trial court did abuse its discretion in allowing a motion for new trial to be
overruled by operation of law. However, the Limestone case was in the context of a defendant’s failure to receive
notice of a hearing on motion for summary judgment not in the context of a no answer default judgment in which the
recitations of the citation are not overcome by mere uncorroborated statements of the defendant. Therefore,
Montgomery’s failure to obtain a hearing on his motion for new trial is fatal to his Craddock assertions.
3
  It is Hitchcock’s position that Montgomery has waived this argument as well by failing to set his motion for new
trial for hearing.

Appellee’s Response Brief – Page 20
in detail the existence of the promissory note, the amount of payments and dates of

payments made by Mr. Montgomery, the interest rate and the calculation of the amount

due under the note by the date of the default judgment.

         Montgomery cites Abcon Paving, Inc. v. Crissup, 820 S.W.2d 951, 953 (Tex.

App.—Fort Worth 1991, no writ) for the proposition that the written instrument upon

which a case is based must be attached to the petition in a case of liquidated damages.

But the Abcon Paving case is not applicable, because Mr. Hitchcock’s claim is for

unliquidated damages because Mr. Montgomery did make payments on the note. The

affidavit of Mr. Montgomery sets out the amount of the note, the payments made and

total due in great detail and is sufficient evidence of the damages awarded by the trial

court.

         Montgomery also cites Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.—

Dallas 1994, no writ) for the proposition that there was no evidence before the trial court

regarding Mr. Hitchcock’s damages. But the plaintiff in Jones was claiming liquidated

damages, which the court of appeals disagreed with. There is also no indication that the

affidavit referred to by the plaintiff’s counsel in Jones bore any relation to the amount of

damages awarded by the trial court. Conversely, in the instant case, the affidavit filed by

Hitchcock on the day of the default judgment recites the exact amount of damages

awarded by the trial court, $59,357.63.




Appellee’s Response Brief – Page 21
                                       CONCLUSION

        Because the minor discrepancies complained about by Montgomery do not require

invalidation of the service of citation in this case, and for the other reasons set forth in

this brief, the default judgment entered by the trial court should be affirmed.




                                          PRAYER

        FOR THE FOREGOING REASONS, Appellee prays that this Court affirm the

trial court’s judgment.

                                            Respectfully submitted,



                                            __/s/ Jon Smith________________
                                            Jon M. Smith
                                            State Bar No. 18630750
                                            3305 Northland Drive
                                            Suite 500
                                            Austin, Texas 78731
                                            Telephone: (512) 371-1006
                                            Facsimile: (512) 476-6685
                                            jon@jonmichaelsmith.com


                                            ATTORNEY FOR APPELLEE




Appellee’s Response Brief – Page 22
                             CERTIFICATE OF COMPLIANCE

        Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), to the extent applicable, I
certify that this brief contains 3,239 words.



                                          __/s/ Jon Smith________________
                                          Jon Michael Smith




Appellee’s Response Brief – Page 23
                                 CERTIFICATE OF SERVICE

       I, Jon Michael Smith, do hereby certify that a true and correct copy of the
foregoing document was delivered to all attorneys of record as listed below via fax on
February 13, 2015.

Steven R. Samples               Via Fax: 855-605-1505
2605 Airport Freeway, Suite 100
Fort Worth, Texas 76111



                                         __/s/ Jon Smith________________
                                         Jon Michael Smith




Appellee’s Response Brief – Page 24
