                                                                           ACCEPTED
                                                                      03-14-00341-CV
                                                                             4318628
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 2/27/2015 3:39:00 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                No. 03-14-00341-CV

                                                      FILED IN
           In the Third Court of Appeals       3rd COURT OF APPEALS
                                                   AUSTIN, TEXAS
                                               2/27/2015 3:39:00 PM
                James Richardson                 JEFFREY D. KYLE
                     Appellant                         Clerk

                        v.
        Maria Torres, Individually and as
      Next Friend of John Marmolejo Torres,
           Daniela Tejeda, and Isabella
                Gonzales, Minors
                     Appellees

     Appeal from Cause No. C-1-CV-13-009448
     County Court No. 2, Travis County, Texas
                Hon. David Phillips


            APPELLANT’S REPLY BRIEF

             KING LAW GROUP, PLLC
                  Mary Ellen King
            Texas State Bar No. 24067219
          meking@kinglitigationgroup.com
                 Richard C. King Jr.
            Texas State Bar No. 24007491
           rking@kinglitigationgroup.com
               W. James Nabholz, III
            Texas State Bar No. 24042677
         jnabholz@kinglitigationgroup.com
                28515 Ranch Road 12
           Dripping Springs, Texas 78620
                512.263.8212 (phone)
                 512.900.2918 (fax)

    Counsel for Appellant James J. Richardson, IV

          ORAL ARGUMENT REQUESTED

 
 
                                              TABLE OF CONTENTS

                                                                                                                     Page

Index of Authorities ................................................................................................. iii

Introduction ................................................................................................................ 1

Argument.................................................................................................................... 3

I.       The Nabholz Affidavit Was Properly before the Court and Contained
         Admissible Evidence Sufficient to Warrant Setting Aside the Default
         Judgment .......................................................................................................... 3

         A.        The Nabholz Affidavit Was Filed as an Exhibit to the Motion to Set
                   Aside Default Judgment and for Sanctions ........................................... 3

         B.        The Nabholz Affidavit Was Discussed at Length at the March 21
                   Hearing .................................................................................................. 4

         C.        The Nabholz Affidavit Provided Abundant Evidence Questioning the
                   Validity of Torres’s Claim that Service Occurred and Demonstrated
                   that Richardson’s Failure to Answer was Unintentional ...................... 5

         D.        Torres Failed to Make Specific Objections to the Nabholz
                   Affidavit and Failed to Obtain a Ruling Striking Any Portions of the
                   Affidavit ................................................................................................ 8

II.      Richardson Satisfies Each of the Three Craddock Factors and Is Entitled to
         Have the Default Judgment Set Aside ............................................................. 9

Conclusion and Prayer ............................................................................................. 11

Certificate of Service ............................................................................................... 13

Certificate of Compliance ........................................................................................ 13




                                                              ii 
                                       INDEX OF AUTHORITIES

Cases                                                                                               Page(s)

Averitt v. Bruton Paint & Floor Co.,
      773 S.W.2d 574 (Tex. App.—Dallas 1989, no writ)....................................... 7

Bank One Tex., N.A. v. Moody,
     830 S.W.2d 81 (Tex. 1992) .......................................................................9, 11

Craddock v. Sunshine Bus Lines Inc.,
     133 S.W.2d 124 (Tex. 1939) .................................................................2, 9, 11

Smith v. Holmes,
      53 S.W.3d 815 (Tex. App.—Austin 2001, no writ) .................................... 7, 8

Rules

Texas Rules of Evidence 803(25) .............................................................................. 6




                                                      iii 
                                  INTRODUCTION

      Appellant James J. Richardson, IV, files this reply brief in support of his

appeal in order to clarify the record and rebut the erroneous statements set forth in

Appellee’s Brief concerning the underlying facts and the equities at issue in this

case. Torres’s main argument rests on her erroneous claim that Richardson had no

evidence at the March 21 hearing on Richardson’s Motion to Set Aside Default

Judgment and for Sanctions (the “Motion”). To the contrary, the Nabholz Affidavit

was properly before the trial court at the hearing, and Richardson has now, for a

second time, requested a supplement to the record to correct the Travis County

Clerk’s filing error so the record on appeal is accurate and complete. Despite the

(now-corrected) clerical error, Torres is well aware that the affidavit was adduced at

the hearing because it is mentioned no fewer than 18 times in the hearing transcript.

Importantly, even if certain statements in the Nabholz Affidavit were potentially

objectionable, they were not properly objected to nor ordered stricken from the

record by the trial court. Also, the lion share of the Nabholz Affidavit (and the

supporting exhibits) was never properly challenged by Torres.          Based on the

Nabholz Affidavit, the lower court was presented with, at minimum, a record

demonstrating that the service affidavit was of questionable veracity. The day before

the service affidavit was purportedly filed, Richardson’s counsel informed Torres’s

counsel that Richardson had not been served. The fact that the Travis County Clerk

 
                                          1
did not file Richardson’s complete submission on March 13 highlights the other

docketing issue in this case; namely, four days before the default judgment was

surreptitiously taken by Torres, the trial court docket reflected only that an alias

summons had been issued, not that a service affidavit had been filed purporting to

document personal service made two months earlier.

      Essentially conceding that this is an obvious case meriting equitable reversal

under the Craddock Doctrine, Torres is unable to make any meaningful or logical

argument that Richardson’s failure to answer was intentional or the product of

conscious indifference. With respect to the remaining two Craddock factors, Torres

is unable to make any argument at all, essentially conceding that Richardson had

meritorious potential defenses and that a new trial will cause Torres no injury. See

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

      Given that motions for new trial filed after default judgments should be

liberally granted, the trial court abused its discretion in not setting aside the default

judgment and affording Richardson the opportunity to a full trial on the merits; both

law and equity demand reversal.

 




                                           2 
                                       ARGUMENT

I.    The Nabholz Affidavit Was Properly before the Court and Contained
      Admissible Evidence Sufficient to Warrant Setting Aside the Default
      Judgment

      Torres’s arguments concerning the Nabholz Affidavit fail for several reasons:

First, the Nabholz Affidavit was attached to and timely filed with the Motion;

second, the Nabholz Affidavit contains ample evidence supporting the fact that

Richardson was not served and, at a minimum, his failure to answer was

unintentional; and third, any objection to the admissibility of the Nabholz Affidavit

was waived by Torres as she failed to obtain any ruling from the trial court striking

specific testimony in the affidavit.

      A.     The Nabholz Affidavit Was Filed as an Exhibit to the Motion to Set
             Aside Default Judgment and for Sanctions

      Richardson filed his Motion on March 13, 2014, with the Travis County

Clerk’s office through the electronic filing service company File and ServeXpress.

The Motion was accompanied by the following supporting exhibits: Exhibit A

(Default Judgment), Exhibit B (The Affidavit of W. James Nabholz III dated March

13, 2014), Exhibit B-1 (Citation), Exhibit B-2 (Alias Citation), Exhibit B-3

(Affidavit of Service), Exhibit B-4 (Letter to Jesus Tirrez dated February 12, 2014),

Exhibit B-5 (Letter to Jesus Tirrez dated March 12, 2014), and Exhibit B-6 (Letter

from Jesus Tirrez dated March 12, 2014). Nevertheless, through an error in the

Travis County Clerk’s processing of Richardson’s filing, the trial court docket


                                          3 
inexplicably reflects the Motion as having been filed without the affidavit or any of

the six supporting exhibits.

              In order to correct this error and give this Court a full and complete record,

File and ServeXpress has provided a business records affidavit providing sworn

evidence that the affidavit and supporting exhibits accompanied the Motion and

were submitted by File and ServeXpress as a single filing “Envelope” to the Travis

County Clerk for filing on March 13, 2014. However, for unknown reasons, the

County Clerk docketed only a portion of Richardson’s filing (aka the “Envelope”).

Appellant has now filed the necessary request for the record to be supplemented with

these materials to correct this error.1 Richardson respectfully requests that the Court

reject Torres’s arguments that this processing error by the Clerk constitutes grounds

for affirming an improperly granted default judgment.

              B.             The Nabholz Affidavit Was Discussed at Length at the March 21
                             Hearing
              Further, despite the Clerk’s error in failing to properly docket the supporting

affidavit and exhibits, those documents were before the Court at the March 21

hearing on Appellant’s Motion. In fact, the hearing transcript reveals that the

Nabholz Affidavit was mentioned no less than 18 separate times during the hearing.


                                                            
1
  Appellant previously asked the Travis County Clerk to supplement the record with
these materials but, instead, the clerk supplemented the record only with other case
materials. The record supplementation should be complete within seven days.


                                                               4 
SR at 4-5, 9-12. Consequently, Torres had ample opportunity to critique and

challenge the Nabholz Affidavit and obtain any court ruling necessary to, if

appropriate, strike statements from that affidavit.

              C.             The Nabholz Affidavit Provided Abundant Evidence Questioning the
                             Validity of Torres’s Claim that Service Occurred and Demonstrated
                             that Richardson’s Failure to Answer Was Unintentional

              At the hearing, Torres made only general objections to the testimony in the

Nabholz Affidavit, essentially implying that the affidavit was inadmissible in its

entirety. SR at 5, 12. Yet, Nabholz set forth a great deal of probative information

in his affidavit that is beyond challenge. In particular, the affidavit sets forth detailed

statements made by Nabholz concerning his weekly monitoring of the case during

the four-month period he was in close contact with Torres’s trial counsel working to

settle multiple claims arising from the same accident.2 In fact, Nabholz testified that

he checked the docket at least once a week, CR at 21, so that if Richardson was

served and failed to timely communicate that fact to counsel, a service affidavit

would be spotted before it was on file for more than ten days, allowing time to file

an answer. The affidavit is clear that Nabholz was taking a two-fold approach –

regularly contacting Appellant directly and, even more frequently, consistently

                                                            
2
      As
    explained above, the March 13, 2014 Nabholz Affidavit will be included in the
supplementation being prepared by the lower court clerk. The same language
appears in the later April 11, 2014 Nabholz Affidavit that is already in the record.
CR at 20-24. References herein will be to the later affidavit because the new
supplement has not been completed. 


                                                               5 
monitoring the trial court docket:

              5. “Beginning with my review of the Court’s electronic docket system
              on November 5, 2013, I began to review that docket system at least
              once per week to monitor the status of service on Richardson. I
              reviewed the docket system weekly from November 5, 2013 through
              March 4, 2014. Throughout this same time, I was in frequent contact
              with Richardson to determine whether he had received service of
              process. My calls and/or emails to Richardson occurred approximately
              every two (2) to three (3) weeks. At no time during the four (4) month
              period I was monitoring the service through the Court’s electronic
              docket system and checking with Richardson did I ever receive any
              information which indicated that Richardson had been served in this
              case.” CR at 21.

              Nabholz’s testimony that he repeatedly contacted Richardson should not be

dismissed as evidence. Nabholz was taking precautions to avoid an inadvertent

default. He would not have needed to continue his routine docket checks as late as

February 24 or March 3, 2014, had he had any information suggesting Richardson

had been served. Thus, his affidavit does not restate hearsay testimony from

Richardson; to the contrary, it merely states the obvious, Nabholz lacked any

knowledge or evidence of service and, therefore, did not know that Torres could or

would secretly obtain a default judgment.3 Even if Nabholz’s affidavit testimony

that he repeatedly contacted Richardson is disregarded, although it should not be, it

is clear that – based on his personal fact finding – there was no basis for filing an

                                                            
3
  At a minimum, Nabholz’s systematic and regular course of action over a four-
month period that Appellee failed to controvert before the lower court should be
sufficient to establish the necessary level of trustworthiness to satisfy the
requirements of Texas Rule of Evidence 803(25).


                                                               6 
answer as of Monday, February 24, 2014, just four days before Torres secretly

obtained her default judgment:

              6. “When I checked the Court’s electronic docket system on or about
              February 24, 2014, the system revealed that an Alias Citation had been
              issued for James Richardson on February 13, 2014.” CR at 21.

              This important point goes unaddressed by Torres. Specifically, she fails to

address the fact that on February 24, 2014, the trial court docket did not reflect that

a service affidavit had been filed on February 13 and, instead, reflected only that an

alias citation had been issued for Richardson on that date.4 Thus, at a minimum, the

trial court was presented with a conflicted service record at the time of the March 21

hearing.

              Under well-established case law, a trial court faced with a motion to set aside

a default judgment is bound to accept as true the affidavits of the movant, unless the

opponent requests an evidentiary hearing and introduces controverting evidence.

See Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.—Austin 2001, no writ) (citing

Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574, 576 (Tex. App.—Dallas 1989,

no writ)). Here, Torres, in opposing the Motion, chose not to present additional

credible evidence to rebut the evidence – such as the process server providing live

testimony that he actually did travel to the Dallas-Fort Worth area that day in

                                                            
4
  Again, while Appellee may attempt to turn a blind eye to the docketing issues
caused by the clerk in this case, the Nabholz Affidavit clearly raised the issue of a
second docketing error.


                                                               7 
December 2013 and that the person he claims to have served was actually James J.

Richardson, IV – offered by the moving party; thus, the motion should have been

granted. See Smith, 53 S.W.3d at 818. Faced with such a record, it was an abuse of

discretion to not set aside the default judgment.

      D.     Torres Failed to Make Specific Objections to the Nabholz Affidavit
             and Failed to Obtain a Ruling Striking Any Portions of the Affidavit
      Importantly, despite raising generalized hearsay objections to the Nabholz

Affidavit, Torres failed to file any objections to the Nabholz Affidavit or make any

objections to specific statements in the affidavit during the hearing. Torres made

only two generalized objections. SR at 5 (“And I’m going to object to his affidavit

based on hearsay.”), 12 (“Again, Your Honor, I’m going to object to hearsay.”). But,

more is required to strike sworn affidavit testimony; however, Torres failed to go

through the well-established, state-court procedure of identifying which statements

in the affidavit Torres deemed objectionable, arguing their alleged inadmissibility,

affording Richardson an opportunity to rebut and argue their admissibility, and then

obtaining a ruling from the court specifying which statements are inadmissible.

While the trial court and Torres make generalized statements about hearsay, Torres

failed to carry her burden of obtaining a ruling on her verbal objections at the

hearing.

      More importantly, the Order Denying the Motion is entirely devoid of any

evidentiary ruling striking any portions of the Nabholz Affidavit. CR at 91. Instead,


                                          8 
Torres seeks to now – for the first time on appeal – have this Court line-out certain

sections of the Nabholz Affidavit, if not the entire affidavit, in order to maintain her

ex parte default judgment against a defendant who was never served. There is

simply no reason to penalize Richardson by denying his right to a trial on the merits

in order to now grant Torres an evidentiary ruling that she failed to properly obtain

at the lower court.

II.   Richardson Satisfies Each of the Three Craddock Factors and Is Entitled
      to Have the Default Judgment Set Aside

      Torres only briefly attempts to rebut Richardson’s manifest entitlement to

equitable relief. In fact, Torres does not deny that (i) Richardson has meritorious

defenses he could have asserted had he been afforded the opportunity, and (ii)

granting Richardson equitable relief will occasion no injury to Torres.             See

Craddock, 133 S.W.2d at 126; see also Bank One Tex., N.A. v. Moody, 830 S.W.2d

81 at 83. Thus, Torres concedes that Richardson can satisfy two of the three

Craddock factors. Brief of Appellees at 19-22.

      As to the remaining factor, Torres does attempt to argue that Richardson’s

failure to answer was intentional or the result of conscious indifference, but she does

so by resorting to a fundamental mischaracterization of Richardson’s position.

Torres claims that Richardson’s failure to answer was based, not on the fact that he

was not served, but solely on the fact that he did not know Torres had informed the

trial court of service. Brief of Appellees at 20 (mischaracterizing Richardson’s

                                           9 
position as – “I didn’t answer because I didn’t know plaintiff told the court I had

been served.”). To the contrary, Richardson was both unaware that Torres claimed

he had been served and did not realize that a service affidavit had been filed.

              Of course, Torres knew full well that Richardson and his counsel were

unaware that the process server claimed to have served Richardson two months

earlier. Torres knew because Richardson’s counsel wrote to Torres’s counsel on

February 12, 2014 – the day before the service affidavit was supposedly filed – and

stated that the proposed Amended Petition Torres was intending to file should be

revised to “recognize that James Richardson has not been served.” R 28.5 Torres

was even informed in that same letter of the steps that Nabholz had taken to ensure

that he was up to-date on the ongoing status of service. Thus, Torres was well aware

that there was a glaring factual disconnect at play – a process server claiming to have

served Richardson two months earlier and Richardson and his counsel stating

unequivocally that service had not occurred – and, thus, the service affidavit’s

validity was at issue.6

              The absence of a purposeful or bad faith failure to answer is the controlling




                                                            
5
      This
       letter was attached as Exhibit B-4 to the March 13 Nabholz Affidavit, which
is being supplemented.
6
     Torres raised no objection to the February correspondence at the March 21 hearing.


                                                               10 
fact under this analysis and in this case. See Craddock, 133 S.W.2d at 125.7 Here,

it was an abuse of discretion for the trial court to refuse to grant a new trial when all

three Craddock elements are satisfied. See Bank One, 830 S.W.2d at 85. This matter

can and should be remanded so the parties can fairly, but expeditiously, move to a

trial on the merits.

                                                               CONCLUSION AND PRAYER

              For the foregoing reasons, Richardson respectfully requests that this Court

reverse the trial court’s denial of his Motion to Set Aside Default Judgment, and

remand this case to the trial court for further proceedings. Setting aside the legal

arguments and obvious material questions of fact at issue, equity, not to mention

basic concepts of fair play and professionalism, clearly demands that this case be

returned to the lower court for resolution on the merits.

 




                                                            
7
   Here, the only party acting in bad faith was Torres. Interestingly, she does not,
because she cannot, explain why she concealed her efforts to obtain a default
judgment despite knowing that Richardson was represented by counsel, was actively
interacting with Richardson’s counsel for months to settle other claims related to the
accident at issue in this case. She should not be rewarded for her duplicity.


                                                                        11 
          Respectfully submitted,

          KING LAW GROUP, PLLC

           /s/ Mary Ellen King
          Mary Ellen King
          Texas Bar No. 24067219
          meking@kinglitigationgroup.com
          Richard C. King Jr.
          Texas State Bar No. 24007491
          rking@kinglitigationgroup.com
          W. James Nabholz, III
          Texas State Bar No. 24042677
          jnabholz@kinglitigationgroup.com
          28515 Ranch Road 12
          Dripping Springs, Texas 78620
          512.263.8212 (phone)
          512.900.2918 (fax)

          Attorneys for Appellant James J.
          Richardson, IV




    12 
                           CERTIFICATE OF SERVICE

      On February 27, 2014, in compliance with Texas Rule of Appellate Procedure

9.5, I served this document on the following counsel of record by e-service, e-mail,

facsimile, or mail to:

Jesus Tirrez
JESUS TIRREZ & ASSOCIATES
1301 South IH-35, Suite 307
Austin, Texas 78741
(512) 326-1330 Telephone
(512) 275-0075 Fax

Beth Watkins
Shannon K. Dunn
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666 Telephone
(210) 225-2300 Fax

                                           /s/ Mary Ellen King
                                              Mary Ellen King

                          CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Texas Rule of

Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface

no smaller that 14-point for text and 12-point for footnotes. This document also

complies with the word-count limitations of Rule 9.4(i), if applicable, because it

contains 2,699 words, excluding any parts exempted by Rule 9.4(i)(1).

                                         /s/ Mary Ellen King
                                            Mary Ellen King

                                        13 
