                                                                              ACCEPTED
                                                                         04-15-00036-CV
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                    4/17/2015 3:51:00 PM
                                                                           KEITH HOTTLE
                                                                                  CLERK

                       No.04-15-00036-CV

   IN THE FOURTH COURT OF APPEALS        FILED IN
                                  4th COURT OF APPEALS
            AT SAN ANTONIO 04/17/2015
                                   SAN ANTONIO, TEXAS
                                             3:51:00 PM
      _______________________________ ClerkHOTTLE
                                      KEITH E.



                 DAVID WAYNE THOMPSON
                        Appellant,

                               vs.

             TRAVIS BAILEY AND LISA BAILEY,
                        Appellees
 _________________________________________

On Appeal from the 38th Judicial District of Uvalde County, Texas

            (Trial Court Cause No. 2013-07-29422-CV)
________________________________________________
               APPELLANT’S REPLY BRIEF
________________________________________________
                                     Rogelio M. Muñoz
                                     State Bar No. 24044409
                                     Email: roy@swtexaslaw.com
                                     The Muñoz Law Firm
                                     231 S. Getty St.
                                     Uvalde, TX 78801
                                     Tel:(830) 278 – 1150
                                     Tel:(830) 278 – 1559
                                     Counsel for Appellant

           ORAL ARGUMENT IS REQUESTED
TO THE HONORABLE COURT OF APPEALS:

                         STATEMENT OF THE REPLY

      Appellant, David Thompson, (hereafter Mr. Thompson) files this reply to the

Appellee’s Brief.

                          REPLY ISSUES PRESENTED

      Reply Point Number 1: Service was defective.

      Reply Point Number 2: Trial court erred in conditionally granting the

      motion for new trial.

                       ARGUMENT AND AUTHORITIES

      Reply Point 1: Service was defective.

      The Appellees, Lisa and Travis Bailey, (hereafter the Baileys) make several

arguments in favor of valid service, but they are each without legal merit.

   I. First, the Baileys argue that service was valid because the process server,

Mr. Olivarez, was authorized to serve under Tex. R. Civ. P. 103 (hereafter rule

103) because he was a retired sheriff’s deputy. Essentially, they are asking the

Court to interpret rule 103 to mean that retired sheriff’s deputies are expressly

authorized to serve under rule 103. This argument is problematic for a very simply

reason; that is not what the express language of rule 103 says. Rule 103 provides

that, “service of process may be served by: (1) any sheriff of constable or other

person authorized by law…” Tex. R. Civ. P. 103. Nothing in the rule authorizes



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service by a retired sheriff’s deputy. The Baileys attached to their brief a standing

order that authorized Mr. Olivarez that was signed on July 17, 2014. (See Tab I to

Appellees Brief). That order took effect more than three months after Mr. Olivarez

served the return. Not surprisingly, Mr. Olivarez requested a standing order from

the trial court that gave him written authorization to serve after the motion for new

trial was filed and his ability to serve was challenged. If Mr. Olivarez had been

authorized to serve process under the express terms of rule 103 then there would

not have been a need to obtain written authorization from the trial court.

   II. Secondly, the Baileys argue that service was valid because the process

server, Mr. Olivarez, was authorized to server under written order of the court in

compliance with Tex. R. Civ. P. 103 (2). This argument fails because despite the

Bailey’s contentions to contrary, no written order existed at the time of service that

authorized Mr. Olivarez to serve process in this case. The Bailey’s claim that the

trial court’s order granting substituting service, which authorized service by

leaving a copy of the petition with anyone over 16 years of age, also authorized

Mr. Olivarez to serve process. The Baileys argue that because their motion for

substituted service was supported by an affidavit made by Mr. Olivarez, and

because the trial court granted the motion for substituted service, the order granting

substituted service should be read to give requisite written authorization to Mr.

Olivarez to serve process.



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   This argument fails for several reasons. First and most significantly, the order

granting substituted service did not either expressly or impliedly authorize Mr.

Olivarez to serve process. The order merely authorized an alternate method of

service; it did not give Mr. Olivarez authorization to serve process. (CR 29).

Another problem with this position is that the motion for substituted service did not

ask the trial court for written authorization for Mr. Olivarez to serve process.

Instead, the motion only asked for authorization to serve Mr. Thompson by leaving

a copy of the petition with someone over 16 years of age at his residence. (CR 26).

As a consequence, the order granting substituted service did only what the Baileys

requested in their motion, which was authorization for an alternate method of

service. Another problem with this argument is that, at the hearing on the motion

for new trial, counsel for the Baileys never raised this argument. It is only logical

that if the order authorizing substituted service was intended to give written

authorization to Mr. Olivarez, the issue would have been raised by counsel for the

Baileys.

   III. Third, the Baileys argue that the trial court’s order granting new trial

constituted an affirmative amendment to return, which thereby authorized Mr.

Olivarez to serve in this case. In support of this position, the Baileys cite

Higginbotham vs. General Life and Acc. Ins. Co., 796 S.W.2d 695 (Tex. 1990).

Higginbotham is inapposite the instant case because it dealt with a very different



                                           4
factual situation. In Higginbotham, the applicable law required service during

regular business hours and the return showed service at 12:01 p.m., but it did not

state that the businesses’ hours included that particular time. Id. After a default

judgment was obtained, the defendants filed a motion for new trial and the trial

court denied the motion. The Supreme Court found that the trial court, in finding

that service was proper under the quoted provision of the statute also found that

service was made “during business hours” and in so doing it implicitly amended

the citation without need for an amended citation. Id. Higginbotham is not

pertinent to instant case because there service was in fact properly perfected. The

only issue was an ambiguity as to whether the time of service “12:01p.m.” was

during regular business hours. The trial court found that the time of service

occurred during normal business hours which thereby validated service. Thus, in

Higginbotham the trial court only made an evidentiary determination that clarified

the facts stated in the return. By clarifying the language in the return the Supreme

Court found that the trial court implicitly amended it. Higginbotham is therefore

applicable on the issue of whether a trial court can implicitly amend a return of

service.

   By contrast, here the issue is not whether the return of citation itself is

sufficient, but whether the individual who served the citation was authorized by

statute. Here, the trial court could not have amended the return because the person



                                           5
who served citation was not authorized to serve under rule 103. Unlike in

Higginbotham, here service was completely defective because Mr. Olivarez was

not authorized to serve. Finally, unlike in Higginbotham, here the trial court made

no findings that Mr. Olivarez was authorized to serve process which could be

implied as amendment to the return.

   IV. In the Baileys final argument in favor of valid service they claim that

because Mr. Thompson appeared before the trial court after the motion for the new

trial was granted, he had acquiesced to the jurisdiction of the trial court which

thereby rendered any arguments regarding service moot. This argument also fails

because, even though Mr. Thompson entered a general appearance after the default

judgment was rendered, it does not negate the fact that when the default judgment

was obtained the trial court was without jurisdiction. The trial court did not have

jurisdiction to render the default judgment because there was improper service.

The fact that the trial court later acquired jurisdiction does not change the fact that

the default judgment was void. If the default judgment was void then the trial court

was without power to restore it.

   Reply Point Number 2: Trial court erred in conditionally granting the motion

for new trial.

   I. The Baileys contend that when the trial court modified its order granting

new trial, by making it conditionally granted upon the payment of fees, the trial



                                           6
court had personal jurisdiction because Mr. Thompson had made a general

appearance. Mr. Thompson does not dispute that, after he appeared in the case, he

submitted himself to the jurisdiction of the court. That does not change the fact

that the default judgment was entered without proper service. Without proper

service the trial court never acquired jurisdiction to enter the default judgment.

Thus, even if the trial court had jurisdiction after Mr. Thompson appeared it still

did not give it authority to reinstate a void judgment.

   II. The Baileys next contend that the trial court has authority to conditionally

grant a new trial upon specific terms. As stated in Mr. Thompson’s brief, he does

not dispute the general principle that a trial court can in some instances

conditionally grant a motion for new trial. But here the trial court was without

power to do so. This is because service was defective, and without valid service

the trial court never acquired personal jurisdiction to enter a default judgment. As

a consequence, the default judgment was void, and it logically follows that a trial

court cannot reinstate a void judgment.

                         CONCLUSION AND PRAYER

      For these reasons, Mr. Thompson requests that this court reverse the trial

court, vacate the default judgment, and order a new trial.

                                        Respectfully Submitted,




                                          7
                                       /s/ Rogelio M. Muñoz
                                       Rogelio M. Muñoz
                                       State Bar Number: 24044409
                                       The Muñoz Law Firm
                                       231 South Getty Street
                                       Uvalde, Texas 78801
                                       Telephone: (830) 278-1150
                                       Fax: (830) 278-1559

                                       Attorney for the Appellant,
                                       David Wayne Thompson

                          CERTIFICATE OF SERVICE

      I certify that I have served this reply brief by mailing a copy on the 17th day
of April, 2015, to the following counsel of record:


      Mr. Paul J. Tarski
      205 N. Getty St.
      Uvalde, TX 78801
      Tel: 830 278 2544
      Fax 830 278 7316
      email: paul@tarskilaw.com

                                       /s/ Rogelio M. Muñoz




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