                                                                                                      ACCEPTED
                                                                                                 13-14-00462-CV
                                                                                   THIRTEENTH COURT OF APPEALS
                                                                                         CORPUS CHRISTI, TEXAS
        FILED                                                                                3/9/2015 9:07:05 PM
                                                                                               DORIAN RAMIREZ
IN THE 13TH COURT OF APPEALS                                                                              CLERK
        CORPUS CHRISTI

         3/9/2015              CAUSE NO. 13-14-462-CV
DORIAN E. RAMIREZ, CLERK
BY JParedes                                                              RECEIVED IN
                                               In The              13th COURT OF APPEALS
                                                                CORPUS CHRISTI/EDINBURG, TEXAS
                                          Court of Appeals
                                                                    3/9/2015 9:07:05 PM
                                               For the               DORIAN E. RAMIREZ
                                                                            Clerk
                                     Thirteenth Appellate District
                                       Corpus Christi, Texas


          ALAMO HOME FINANCE and
          GONZALEZ FINACIAL HOLDINGS
                                                                          APPELLANTS

          V.

          MARIO DURAN and
          MARIA DURAN
                                                                          APPELLEES

                           APPELLEES' RESPONSIVE BRIEF
                                  TO APPELLANT
                              ALAMO HOME FINANCE
                                   Francisco J. Rodriguez
                           LAW OFFICE OF FRANCISCO J. RODRIGUEZ
                                     1111 W. Nolana Ave
                                    McAllen, Texas 78504
                                     Tel: (956) 687-4363
                                     Fax: (956) 687-6415

                                     KEITH C. LIVESAY
                                   LIVESAY LAW OFFICE
                                     BRAZOS SUITES NO. 9
                                      517 West Nolana
                                    McAllen, Texas 78504
                                       (956) 928-0149


                                                                                              i
                   TABLE OF CONTENTS
TABLE OF AUTHORITIES                                           iv

WAIVER OF ORAL ARGUMENT                                        xiv

STATEMENT OF NATURE OF CASE                                    2

ISSUES PRESENTED                                               2

STATEMENT OF FACTS                                             5

SUMMARY OF ARGUMENT                                            8

ARGUMENT                                                       9

APPELLANT HAS CLEARLY FAILED
TO PRESERVE ERROR                                              9

     [A] Tax Lender Cannot Switch Horses Misstream             9

     [B] Improper Service Complaints Unpreserved               11

     [C] Trial Court Never Given Opportunity                   17

TAX LENDER CLEARLY NOT ENTITLED
TO NEW TRIAL                                                   19

     [A] Alleged Defects in Service Do Not Warrant New Trial   19

     [B] Holding Service of Process Improper Unconstitutional 25

     [C] New Trials Not Granted Like Valentine Flowers         28

     [D] Tax Lender Acted With Conscious Indifference          35

     [E] Tax Lender Failed to Set Up Meritorious Defense       41

     [F] Tax Lender’s Offers of Equity Insufficient            44
                                                                     ii
CONCLUSION AND PRAYER       46

CERTIFICATE OF COMPLIANCE   47

CERTIFICATE OF SERVICE      48




                                 iii
                 TABLE OF AUTHORITIES
Adams v. H & H Meat Products, Inc., 41 S.W.3d 762, 769
    (Tex. App.--Corpus Christi 2000, no pet.)                  33

Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651,
     653 (Tex. App.--Beaumont 1990, no writ)                31

Berlanga v. Berlanga, 2012 WL 252497 at 1 (Tex. App.--
     Beaumont 2012, no pet.)                                   16

Boatner v. Providence-Washington Ins. Co., 241 S.W. 136,
    140 (Tex. Comm'n App. 1922, judgm't adopted)               10

Brock v. Sutker, 215 S.W.3d 927, 929 (Tex. App.--Dallas
    2007, no pet.)                                             35

Bubba's of San Antonio v. Leyendecker Const., Inc., 2010
    WL 2403717 (Tex. App.--San Antonio 2010, no pet.)          16

Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--Corpus
    Christi 1996, writ denied)                                 33

Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.--Dallas
    2006, no pet.)                                             11

Cardenas v. Continental Ins. Co., 960 S.W.2d 401, 404 (Tex.
    App.--Corpus Christi 1998, writ denied)                    36

Carey Crutcher, Inc. v. Mid Coast Diesel Services, Inc., 725
     S.W.2d 500 (Tex. App.--Corpus Christi 1987, no writ)      27

Cisneros v. Regalado Family Ltd. Partnership, 2011 WL
     3366345 (Tex. App.--Corpus Christi 2011, no pet.)         17

City of Port Isabel v. Shiba, 976 S.W.2d 856, 859 (Tex.
      App.--Corpus Christi 1998, writ denied)                  33

Cocke v. Saks, 776 S.W.2d 788, 790 (Tex. App.--Corpus

                                                                    iv
     Christi 1989, writ denied)                                29

Columbia Rio Grande Regional Hospital v. Stover, 17 S.W.3d
    387, 391 (Tex. App.--Corpus Christi 2000, no writ)         36

Continental Carbon Co. v. Sea-Land Service, Inc., 27 S.W.3d
     184, 190 (Tex. App.--Dallas 2000, pet. denied)            33

Cornerstone Alternatives, Inc. v. Patterson Oldsmobile-GMC-
    Toyota, Inc., 696 S.W.2d 702 (Tex. App.--Fort Worth 1985,
    no writ)                                                40

Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d
    124, 126 (1939)                                            28

Cross Marine, Inc. v. Lee, 905 S.W.2d 22, 25 (Tex. App.--
     Corpus Christi 1995, writ denied)                         12

Davis v. Campbell, 572 S.W.2d 660, 662 (Tex. 1978)             10

Dorchester Gas Producing Co. v. Harlow Corp., 743 S.W.2d
    243, 257 (Tex. App.--Amarillo 1987, writ denied)           21

Dreisbach v. Reed, 780 S.W.2d 901, 903 (Tex. App.--El Paso
     1989, no writ)                                            38

Dupnik v. Aransas County Navigation District No. 1, 732
    S.W.2d 780 (Tex. App.--Corpus Christi 1987, no writ)       28

E.C., Jr. ex rel. Gonzales v. Graydon, 28 S.W.3d 825, 829
     (Tex. App.--Corpus Christi 2000, no pet.)                 32

Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d
    343, 354 (Tex. App.--Corpus Christi 1997), writ denied
    per curiam, 989 S.W.2d 360 (Tex. 1998)                     31

Equinox Enterprises, Inc. v. Associated Media, Inc., 730
    S.W.2d 872, 876 (Tex. App.--Dallas 1987, no writ)          41


                                                                    v
Executive Tele-Communication Systems v. Buchbaum, 669
    S.W.2d 400, 403 (Tex. App.--Dallas 1984, no writ)            34

Faulkner v. Stark, 2004 WL 1698052 at 2 (Tex. App.--
     Texarkana 2004, no pet.)                                    41

First National Bank of Bryan v. Peterson, 709 S.W.2d 276
      (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e)   45

Fluty v. Simmons Co., 835 S.W.2d 664, 667 (Tex. App.--
     Dallas 1992, no writ)                                       17

Fonseca v. County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ.
    App.--Corpus Christi 1975, writ ref'd n.r.e.)            33

Genereux v. Raytheon Co., 754 F.3d 51, 53 (1st Cir. 2014)        10

Gillenwaters v. State, 205 S.W.3d 534 (Tex. Cr. App. 2006)       13

Glittenberg v. Hughes, 524 S.W.2d 954, 956 57 (Tex. Civ.
      App.--Fort Worth 1975, no writ)                            45

Haas v. George, 71 S.W.3d 904, 914 (Tex. App.--Texarkana
    2002, no pet.)                                               35

Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265
    (Tex. App.--Texarkana 1992, writ dism'd)                     29

Haskins v. Finks, 470 S.W.2d 717, 718 (Tex. Civ. App.--
    Eastland 1971, writ ref’d n.r.e.)                            43

Heath v. Herron, 732 S.W.2d 748, 752 (Tex. App.--Houston
    [14th Dist.] 1987, no writ)                                  35

Herbert v. Greater Gulf Coast Enterprises, Inc., 915 S.W.2d
    866, 871 (Tex. App.--Houston [1st Dist.] 1995, no writ)      19

Herring v. Childers, 2004 WL 1926795 at 8 n. 9 (Tex. App.--
     Corpus Christi 2004, pet. denied)                           17

                                                                      vi
Hester v. State, 497 S.W.2d 501, 503 (Tex. Civ. App.--El Paso
     1972, writ ref’d n.r.e.)                                 16

Hicks v. Flores, 900 S.W.2d 504, 506-07 (Tex. App.--Amarillo
     1995, no writ)                                          42

Hines v. Commission for Lawyer Discipline, 28 S.W.3d 697,
     701 (Tex. App.--Corpus Christi 2000, no pet.)               32

Hirczy v. Hirczy, 838 S.W.2d 783, 785 (Tex. App.--Corpus
     Christi 1992, writ denied)                                  14

HL Farm Corp. v. Self, 877 S.W.2d 288, 292 (Tex. 1994)           24

Home Owners Funding Corp. of America v. Scheppler, 815
    S.W.2d 884 (Tex. App.--Corpus Christi 1991, no writ)         31

Hughes v. Hughes, 407 S.W.2d 14, 16 (Tex. Civ. App.--Waco
    1966, no writ)                                               12

Ikon Office Solutions, Inc. v. Integrity Communications, Ltd.,
     2006 WL 1644670 (Tex. App.--Corpus Christi 2006,
     no pet.)                                                    23

In re D.M., 244 S.W.3d 397 (Tex. App.--Waco 2007, no pet.)       30

In re Frost Nat. Bank, 103 S.W.3d 647, 649 (Tex. App.--
      Corpus Christi 2003, mand. denied)                         31

In re J.I.Z., 170 S.W.3d 881, 883 (Tex. App.--Corpus Christi
      2005, no pet.)                                             32

James v. Comm'n for Lawyer Discipline, 310 S.W.3d 586,
    594–95 (Tex. App.--Dallas 2010, no pet.)                     18

Johnson v. Edmonds, 712 S.W.2d 651, 652-53 (Tex. App.--
    Fort Worth 1986, no writ)                                    38

K & M Tools, Inc. v. Bencon Management and General Contract-

                                                                      vii
     ing Corp., 1997 WL 605097 at 3 (Tex. App.--Houston
     [14th Dist.] 1997, writ denied)                           43

Kelly v. Brenham Floral Co., 2014 WL 4219448 at 4 (Tex.
      App.--Houston [1st Dist.] 2014, no pet.)                 29

Kershner v. State Bar of Texas, 879 S.W.2d 343, 347-48 (Tex.
     App.--Houston [14th Dist.] 1994, writ denied)           11

Konkel v. Otwell, 65 S.W.3d 183, 187 (Tex. App.--Eastland 2001,
    no writ)                                                 38

Kuehnhoefer v. Welch, 893 S.W.2d 689, 694 (Tex. App.--
    Texarkana 1995, writ denied)                               11

LEJ Development Corp. v. Southwest Bank, 407 S.W.3d 863,
    866 (Tex. App.--Fort Worth 2013, no pet.)            19

Liberty Mutual Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 618
     (Tex. App.--El Paso 1988, no writ)                        28

Lilly v. Tolar, 2002 WL 1926527 at 3 (Tex. App.--Texarkana
      2002, pet. denied)                                       18

Memorial Hospital System v. Fisher Ins. Agency, Inc., 835
   S.W.2d 645 (Tex. App.--Houston [14th Dist.] 1992,
   no writ)                                                    39

Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 444 (Tex.
     App.--Fort Worth 1997, writ denied)                       10

Moore v. State, 295 S.W.3d 329, 333 (Tex Cr. App. 2009)        12

Most Worshipful Prince Grand Hall v. Jackson, 732 S.W.2d
     407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.)      35

Myan Management Group, L.L.C. v. Adam Sparks Family
    Revocable Trust, 292 S.W.3d 750, 753 (Tex. App.--
    Dallas 2009, no pet.)                                      21

                                                                    viii
Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex.
    App.--Corpus Christi 1999, writ denied)                  14

Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex.
    App.--Waco 1988, no writ)                                    29

O'Connell v. O'Connell, 843 S.W.2d 212 (Tex. App.--
    Texarkana 1992, no writ)                                     45

Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608,
      613 (Tex. App.--Corpus Christi 1996, writ denied)          19

Ovalle v. Ovalle, 604 S.W.2d 526, 528 (Tex. Civ. App.--Waco
     1980, no writ)                                              21

P & H Transp., Inc. v. Robinson, 930 S.W.2d 857 (Tex.
     App.--Houston [1s Dist.] 1996, writ denied)                 22

Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--
    Houston [14th Dist.] 1987, writ ref'd n.r.e.)                20

Pena v. State, 285 S.W.3d 459, 464 (Tex. Cr. App. 2009)          14

Perez v. Cueto, 908 S.W.2d 29, 30 (Tex. App.--Houston [14th
     Dist. 1995, no writ)                                        11

Phifer v. Nacogdoches County Central Appraisal Dist., 45
     S.W.3d 159, 173 (Tex. App.--Tyler 2000, pet. denied)        33

Popkowsi v. Gramza, 671 S.W.2d 915 (Tex. App.--Houston
    [1st Dist.] 1984, no writ)                                   20

Portfolio Recovery Associates, LLC v. Talplacido, 2012 WL
     204541 at 2 (Tex. App.--Dallas 2012, no pet.)               16

Prasad v. Capital Farm Credit, FLCA, 2013 WL 3877666 at
     2 (Tex. App.--Houston [1st Dist.] 2013, no pet.)            15

Prime Prods., Inc. v. SSI Plastics, 97 S.W.3d 631, 637 (Tex.

                                                                      ix
     App.--Houston [1st Dist.] 2002, pet. denied)             42

Reading & Bates Const. Co. v. O'Donnell, 627 S.W.2d 239,
    244 (Tex. App.--Corpus Christi 1982, writ ref’d n.r.e.)   32

Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.--Corpus
     Christi 1996, no writ)                                   11

Roberts v. Burkett, 802 S.W.2d 42, 47 (Tex. App.--Corpus
    Christi 1990, no writ)                                    33

Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana
     2009, p.d.r. ref'd)                                      13

Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston
    [14th Dist.] 2008, p.d.r. ref'd)                       11

Salt Water Resources v. Kirkpatrick & O'Donnell Const. Equip-
     ment Co., 694 S.W.2d 122, 123 (Tex. App.--Dallas 1985,
     no writ)                                                 43

Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587,
     590-91 (Tex. App.--El Paso 2005, no pet.)              40

Siegler v. Williams, 658 S.W.2d 236, 239 (Tex. App.—Houston
     [1st Dist.] 1983, no writ)                             42

Shamrock Roofing Supply, Inc. v. Mercantile Nat. Bank at
    Dallas, 703 S.W.2d 356, 357-58 (Tex. App.--Dallas
    1985, no writ)                                            18

Sharm, Inc. v. Martinez, 900 S.W.2d 777, 782 (Tex. App.--
    Corpus Christi 1995, no writ)                             39

Southwest Plaza Apts. v. Corpus Christi Brick & Lumber
    Co., 528 S.W.2d 885, 887 (Tex. Civ. App.--Corpus
    Christi 1975, no writ)                                    30

State v. $30,660.00, 136 S.W.3d 392, 405 (Tex. App.--

                                                                   x
     Corpus Christi 2005, pet. denied)                         35

Stein v. Meachum, 748 S.W.2d 516, 517 (Tex. App.--Dallas
     1988, no writ)                                            29

Stock v. Stock, 702 S.W.2d 713, 715 (Tex. App.--San Antonio
     1985, no writ)                                         41

Stooksbury v. State, 2009 WL 2883518 at 5 (Tex. App.--Waco
     2009, p.d.r. ref'd)                                   30

Sullivan v. University Interscholastic League, 616 S.W.2d 170
      (Tex. 1981)                                             24

Tacon Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc.,
    889 S.W.2d 666, 671 (Tex. App.--Houston [14th Dist.]
    1994, writ denied)                                         35

Tallabas v. Wing Chong, 72 S.W.2d 636, 637 (Tex. Civ.
     App.--Eastland 1934, no writ)                             13

Tex-Hio Partnership v. Garner, 106 S.W.3d 886, 896 (Tex.
     App.--Dallas 2003, no pet.)                               10

Texas Dep't of Public Safety v. Struve, 79 S.W.3d 796, 801
     n. 6 (Tex. App.--Corpus Christi 2002, pet. denied)        35

Texas General Indem. Co. v. McKay, 595 S.W.2d 884, 887
     (Tex. Civ. App.--Waco 1980, writ ref’d n.r.e.)            46

Thomas v. Ginter, 2014 WL 3738054 at 4 (Tex. App.--Houston
    [1st Dist.] 2014, no pet.)                             15

Trinity Universal Ins. Co. v. Brainard, 153 S.W.3d 508, 513
      (Tex. App.--Amarillo 2004), modified on other grounds,
      216 S.W.3d 809 (Tex. 2006)                               11

United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958,
     959 (Tex. 1976)                                           44

                                                                    xi
Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex. App.--
    Houston [1st Dist.] 1993, writ denied)                     29

Vaughn Bldg. Corp. v. Austin Co., 620 S.W.2d 678, 683
    (Tex. Civ. App.--Dallas 1981), aff'd, 643 S.W.2d 113
    (Tex.1982)                                                 10

Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d 412, 420 (Tex.
    App.--Corpus Christi 1999, writ denied)                    31

Walder v. State, 85 S.W.3d 824, 827 (Tex. App.--Waco
    2002, no p.d.r.)                                           36

Warren v. Zamarron, 2005 WL 1038822 (Tex. App.--Austin
    2005, no pet.)                                             23

Wates v. Carlock, 1996 WL 603863 at 3-4 (Tex. App.--
    Amarillo 1996, writ denied)                                42

Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286,
    290 (Tex. App.--Dallas 2003, no pet.)                      21

White v. Douglas, 569 S.W.2d 635, 637 (Tex. Civ. App.--
     Texarkana 1978, no writ)                                  45

White v. State, 958 S.W.2d 460, 462 (Tex. App.--Waco 1997,
     no p.d.r.)                                                14

Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985)            26

Williams v. Bayview-Realty Associates, 420 S.W.3d 358,
      364-65 (Tex. App.--Houston [14th Dist.] 2014, no pet.)   17

Williams v. Khalaf, 802 S.W.2d 651 (Tex. 1990)                 43

Williams v. Williams, 150 S.W.3d 436, 443–44 (Tex. App.--
      Austin 2004, pet. denied)                                19


                                                                    xii
Wise v. Sands, 739 S.W.2d 731, 734 (Mo. App. 1987)               11

Zimmerman v. Board of Trustees of Ball State University,
    940 F.Supp.2d 875, 884 (S.D. Ind. 2013)                      10

              WAIVER OF ORAL AGUMENT
     Tables of authorities possess no value in assisting an appellate

court in deciding a case. The same is true of oral argument. Mosk,

In Defense of Oral Argument, 1 J. APP. PRAC. & PROCESS 25, 29-30

(1999); Aldisert, WINNING   ON   APPEAL: BETTER BRIEFS     AND   ORAL

ARGUMENT 294 (NITA rev. ed. 1996). This Court has already reached

this conclusion in this matter, and Appellees agree with this Court’s

conclusion.




                                                                      xiii
            CAUSE NO. 13-14-462-CV
                                  In The
                             Court of Appeals
                                  For the
                        Thirteenth Appellate District
                          Corpus Christi, Texas


ALAMO HOME FINANCE and
GONZALEZ FINACIAL HOLDINGS
                                                        APPELLANTS

V.

MARIO DURAN and
MARIA DURAN
                                                        APPELLEES

           APPELLEES' RESPONSIVE BRIEF
                  TO APPELLANT
              ALAMO HOME FINANCE
TO THE HONORABLE JUDGE OF SAID COURT:

     NOW COMES MARIO DURAN and MARIA DURAN, Appellees

in the above styled cause, and file their RESPONSIVE BRIEF TO

APPELLANT ALAMO HOME FINANCE, demonstrating that any

errors with regard to improper service of process have not been

preserved, and that even if the trial court had actually been called

upon to rule, it would correctly denied Appellant's new trial request.


                                                                     1
             STATEMENT OF NATURE OF CASE

     Because of the Rio Grande Valley's nose bleed property tax

rates, home owners often need assistance in paying their taxes. A

property tax lender agrees to loan the money, and to purchase

casualty insurance with a portion of loan proceeds. But instead of

purchasing the casualty insurance, the tax lender pocketed this

portion of the loan proceeds. When the home owners suffer a loss

because of Hurricane Dolly, the tax lender is sued, because such

losses should have been covered. The tax lender fails to answer,

and consequently the trial court, 92nd District Court of Hidalgo

County, Texas, Hon. Jaime Tijerina presiding, grants a default

judgment. While the tax lender did file a motion for new trial, its

motion failed to complain of improper service, and failed to provide

an explanation of what the registered agent did with the lawsuit

after its receipt. Furthermore, the trial court never expressly ruled

on the motion.      Consequently, the default judgment stands.

Nevertheless, this appeal followed.

                    ISSUES PRESENTED

     Can a litigant change horses midstream?


                                                                    2
     On appeal, is a party restricted to the theories he presented to

the trial court?

     On appeal, can a litigant assume an attitude contrary to the

position he assumed before the trial court?

     Is preservation of error required in every case?

     Is one of the purposes of preservation of error to allow the

opposing party an opportunity to respond or correct a problem?

     Can a trial court be held to have abused its discretion, based

on complaints never presented to it?

     In order to complain on appeal of the denial of a motion for

new trial, must an express ruling be obtained from the trial court?

     Can a trial court be held to have abused its discretion, when it

is never called upon to exercise such discretion?

     Does a second motion for new trial, filed more than thirty days

after the default judgment is signed, preserve error?

     Does a second motion for new trial, filed 87 days after the

judgment is signed, constitute a nullity?

     Does service of process require obeisance to the minutest

detail?

     Is a defendant entitled to a new trial based on its registered

                                                                      3
agent’s violation of federal law?

     Can a private process server utilize the United States mails for

service?

     Does automatic reversal for improper service of process violate

the United States Constitution?

     Does automatic reversal for improper service of process violate

the Texas Constitution?

     After default judgments, are new trial granted like flowers on

Valentine’s Day?

     Are motions for new trial reviewed for abuse of discretion?

     Under abuse of discretion review, does this Court act as the

fact finder and determine the applicable facts?

     Is an appellant required to properly brief its complaints when

presenting them to the Court of Appeals?

     Does a proper appellant’s brief discuss the standard of review?

     If a defaulting defendant blames its agent for his failure to

answer, must it explain why its agent did not act with conscious

indifference and present evidence in support thereof?

     In order to demonstrate a meritorious defense sufficient to

warrant a new trial, must the defaulting defendant address all

                                                                    4
causes of action alleged by the plaintiff?

     Can a default defendant establish a meritorious defense based

on conclusory evidence?

     In order to be entitled to a new trial, must a defaulting

defendant offer to do equity?

     In order to be entitled to a new trial, must a defaulting

defendant offer to reimburse the plaintiff?

     In order to be entitled to a new trial, must a defaulting

defendant offer to go to trial?

                   STATEMENT OF FACTS

     Mario and Maria Duran, Appellees in this matter, own four

properties in La Feria, Texas. Because of nose bleed assessments

and tax rates which are all too common in the Rio Grande Valley,

they encountered difficulty in paying their property taxes.     As a

result, they contacted Alamo Home Finance, Appellant herein, to

obtain financial assistance.      After some negotiations, a deal was

reached: Appellant (hereinafter referred to as “Tax Lender”) would

pay the alpine property taxes, in exchange from Appellees’ promise

to repay with interest and insurance charges.


                                                                    5
     One issue which often arises whenever money is borrowed is

insurance.   While it charged Appellees (hereinafter referred to as

“Home Owners”) for such insurance, Tax Lender failed to purchase

it but instead pocketed the money.        While this would not have

caused a loss if the Rio Grande Valley skies remained sunny, living

here during the summer for any period of time proves the opposite:

Hurricane    Dolly   ripped    through   South   Texas,   substantially

damaging the homes in question. C.R. 16; Ex. 3; Ex. 4; Ex. 5; Ex.

6.

     Seeking to      repair   their properties, Home      Owners   filed

insurance claims under the insurance policies Tax Lender had

allegedly purchased. However, it was only then that Tax Lender’s

misconduct became apparent: the insurance company refused to

pay, because Tax Lender had pocketed the money instead of

purchasing the policies it promised.      C.R. 18.   Obviously, Home

Owners suffered economic losses; their homes required substantial

repairs, Ex. 3; Ex. 4; Ex. 5; Ex. 6, and bills have gone unpaid (and

raising the ugly specter of foreclosure).    C.R. 22, 23.    But more

importantly, Home Owners suffered substantial mental distress,

causing Mr. Duran to walk at night and become physically

                                                                       6
aggressive with his family. C.R. 18, 19.

        Initially, Home Owners only filed suit against Gonzalez

Financial Holdings.1         Cl.R. 22-29; 1 Supp. Cl.R. 38-47.       Sub-

sequently, Home Owners added this Tax Lender as a defendant,

asserting causes of action for violations of the Texas Deceptive

Trade     Practices   Act,    breach   of   fiduciary   duty,   fraudulent

misrepresentation, negligence and conspiracy.             2 Cl.R. 52-58.

Citation was issued, Cl.R. 30-31, and Home Owner's retained a

private process server to serve Tax Lender. As she was authorized

to do, the process served Tax Lender's registered agent by certified

mail.    Cl.R. 32-34.   As Tax Lender later admitted, its registered

agent was properly served. Cl.R. 41.

        What exactly Tax Lender's registered agent did with the

petition and citation remains a mystery to this day. This mystery

aside, Tax Lender claims that its registered agent never forwarded

the citation to it.   Cl.R. 47.    Consequently, the time for filing an

answer passed.

        Home Owners did not immediately sprint to the courthouse



1Gonzalez Financial Holdings is a co-appellant in this matter. Home Owners
have previously filed a brief with this Court, addressing its complaints.
                                                                         7
and seek a default judgment. Instead, it waited until the day of the

case was set for trial; and when Tax Lender failed to appear, Home

Owners requested entry of a default judgment. C.R. 7-11.         After

determining that Tax Lender had been properly served, the trial

court heard sometimes gripping evidence concerning Home Owners’

damages. C.R. 13-23. Based on the foregoing, a default judgment

was entered. Cl.R. 35-38.

     After entry of the default judgment, Tax Lender filed a motion

for new trial.    Such motion was solely premised on traditional

Craddock grounds; it failed to mention improper service of process.

Cl.R. 39-48.     However, Tax Lender failed to press for a hearing

timely, and the trial court refused to make an express ruling on the

motion. Cl.R. 5. Thus, the trial court was denied any opportunity

to exercise its discretion. Despite this, Tax Lender appeal followed.

Cl.R. 61-66.

                 SUMMARY OF ARGUMENT

     One of the bedrock principles of appellate jurisprudence is

that a trial court must be given an opportunity to correct any

alleged error, before a litigant can complain to a reviewing court. In


                                                                     8
the case at bar, neither the trial court nor Home Owners were ever

given any opportunity to correct any alleged errors. While a motion

for new trial was filed, neither the trial court nor Home Owners

were informed of any defects in service of process (which could have

been corrected under Tex. R. Civ. P. 118). Furthermore, the trial

court never expressly requested ruled on Tax Lender's motion, or to

pass upon the sufficiency of Tax Lender's evidence in support

thereof. Accordingly, Tax Lender should not be able to obtain a new

trial this Court.

     A party cannot merely claim “I did not receive the citation from

my agent”, and consequently expect a new trial to be granted after a

default judgment. Instead, the defaulting defendant must explain

what he and his agent did and did not do, and why these acts and

omissions do not constitute conscious indifference. In the case at

bar, such evidence is conspicuously absent, and therefore the trial

court did not err in denying a motion for new trial.

                           ARGUMENT

                    APPELLANT HAS CLEARLY FAILED
                         TO PRESERVE ERROR

[A] Tax Lender Cannot Switch Horses Misstream

                                                                    9
      Before the trial court, Tax Lender took the position that its

registered agent was properly served:            "Movant admits that its

registered agent, Corporation Service Company d/b/a CSA-Lawyers

Incorporated    Service    Company,      was     properly     served     with

citation."     Cl.R. 41 (emphasis added).          Before this Court, Tax

Lender now asserts that it was not properly served. Regardless of

the merits, one problem exists with Tax Lender’s current lack of

service arguments: in law, just as in life, a litigant cannot switch

horses in mid stream.        Zimmerman v. Board of Trustees of Ball

State University, 940 F.Supp.2d 875, 884 (S.D. Ind. 2013); Wise v.

Sands, 739 S.W.2d 731, 734 (Mo. App. 1987).2

      It is well-settled that parties are restricted on appeal to the

theory upon which the case was tried in the lower court. Davis v.

Campbell, 572 S.W.2d 660, 662 (Tex. 1978); Mitchell Energy Corp.

v. Bartlett, 958 S.W.2d 430, 444 (Tex. App.--Fort Worth 1997, writ

denied). Thus, "It is well settled that a case will not be reviewed by

the appellate court on a different theory from that on which it was

2"A  familiar bit of homespun philosophy warns of the perils of attempting to
change horses in midstream. This admonition applies in litigation as well as in
life. Thus, when a litigant commits to a theory of the case and sticks to that
theory past the point of no return, he cannot thereafter switch to a different
theory simply because it seems more attractive at the time." Genereux v.
Raytheon Co., 754 F.3d 51, 53 (1st Cir. 2014).
                                                                             10
tried." Tex-Hio Partnership v. Garner, 106 S.W.3d 886, 896 (Tex.

App.--Dallas 2003, no pet.).   Furthermore, as a corollary to this

principle, a litigant cannot assume an attitude on appeal contrary

to that taken at the trial. Boatner v. Providence-Washington Ins.

Co., 241 S.W. 136, 140 (Tex. Comm'n App. 1922, judgm't adopted);

Vaughn Bldg. Corp. v. Austin Co., 620 S.W.2d 678, 683 (Tex. Civ.

App.--Dallas 1981), aff'd, 643 S.W.2d 113 (Tex.1982).

     In the case at bar, in its motion for new trial, Tax Lender took

the position that its registered agent had been properly served.

Cl.R. 41.   Now, before this Court, Tax Lender claims that its

registered agent was not properly served. However, having initially

claimed that service of process was proper, Cl.R. 41, Tax Lender

cannot now claim that service was improper. Trinity Universal Ins.

Co. v. Brainard, 153 S.W.3d 508, 513 (Tex. App.--Amarillo 2004),

modified on other grounds, 216 S.W.3d 809 (Tex. 2006).

[B] Improper Service Complaints Unpreserved

     A party cannot complain of errors before the appellate court,

without first having complained before the trial court. Kershner v.

State Bar of Texas, 879 S.W.2d 343, 347-48 (Tex. App.--Houston

[14th Dist.] 1994, writ denied). If an appellant complains of trial

                                                                   11
court errors for the first time on appeal, such complaints are not

present before the reviewing court.           Kuehnhoefer v. Welch, 893

S.W.2d 689, 694 (Tex. App.--Texarkana 1995, writ denied).                 This

remains true, regardless of how meritorious the objections may

appear to the reviewing judges. Cantu v. Horany, 195 S.W.3d 867,

871 (Tex. App.--Dallas 2006, no pet.).3 The reason is simple:

preservation of error is a systemic requirement of every appeal,

Moore v. State, 295 S.W.3d 329, 333 (Tex Cr. App. 2009), and thus

is "mandatory and essential, and does not involve discretion of the

appellate court." Hughes v. Hughes, 407 S.W.2d 14, 16 (Tex. Civ.

App.--Waco 1966, no writ)(emphasis added).

        Contrary to what some litigants believe, preservation of error

requirements are not imposed to lessen an appellate court's

workload. Instead, this Court has explained why a timely request

or objection must be made before the trial court before the alleged

error can be asserted before on appeal. First, "fairness to all parties

requires a litigant to advance complaints at a time when there is an



3This  principal even applies to alleged errors of constitutional magnitude.
Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.--Houston [14th Dist.] 2008,
p.d.r. ref'd); Perez v. Cueto, 908 S.W.2d 29, 30 (Tex. App.--Houston [14th Dist.
1995, no writ).
                                                                              12
opportunity to respond or cure them".4 Second, "reversing a case

for error not raised in a timely fashion permits the losing party to

second guess its tactical decisions after they do not produce the

desired result". And finally, "judicial economy requires that issues

be raised first in the trial court in order to spare the parties and the

public the expense of a potentially unnecessary appeal."               Cross

Marine, Inc. v. Lee, 905 S.W.2d 22, 25 (Tex. App.--Corpus Christi

1995, writ denied); see also, Gillenwaters v. State, 205 S.W.3d 534,

537 (Tex. Cr. App. 2006)("The requirement that complaints be

raised in the trial court (1) ensures that the trial court will have an

opportunity to prevent or correct errors, thereby eliminating the

need for a costly and time-consuming appeal and retrial; (2)

guarantees that opposing counsel will have a fair opportunity to

respond to complaints; and (3) promotes the orderly and effective

presentation of the case to the trier of fact."); Tallabas v. Wing

Chong, 72 S.W.2d 636, 637 (Tex. Civ. App.--Eastland 1934, no

writ).

         To preserve an alleged error for appellate review, the



4Forexample, if Tax Lender complained about improper service of process,
Home Owners could have modified the citation, pursuant to Tex. R. Civ. P. 118.
                                                                            13
complaining party must:

             1) make a timely objection specifying the
                grounds for the objection;

             2) make the object at the earliest possible
                opportunity; and

             3) obtain an adverse ruling from the trial
                court.

Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.--Texarkana 2009,

p.d.r. ref'd). In other words, all a litigant must do to preserve error

for appeal is to let trial judge know what he wants, why he thinks

himself entitled to it clearly enough for the trial judge to understand

him, at a time when trial court is in position to do something about

it. White v. State, 958 S.W.2d 460, 462 (Tex. App.--Waco 1997, no

p.d.r.). Error preservation does not mandate use of hyper-technical

or formalistic words or phrases; instead, plain English can (and will)

adequately inform the trial court. Pena v. State, 285 S.W.3d 459,

464 (Tex. Cr. App. 2009).

     In the case at bar, Tax Lender did not complain of any

improper service in its motion for new trial, Cl.R. 39-48, but instead

admitted that service of process was proper. Cl.R. 41. Instead, Tax

Lender complained that its registered agent for service of process


                                                                     14
failed to forward citation to it. Cl.R. 47. As a result, Tax Lender's

current complaints concerning lack of service of process are not

properly before this Court. Norwest Mortgage, Inc. v. Salinas, 999

S.W.2d 846, 865 (Tex. App.--Corpus Christi 1999, writ denied);

Hirczy v. Hirczy, 838 S.W.2d 783, 785 (Tex. App.--Corpus Christi

1992, writ denied).5

      Such omission is not cured by Tax Lender's first amended

motion for new trial. Cl.R. 49-60. The trial court granted Home

Owners a default judgment on May 16, 2014, Cl.R. 38, and Tax

Lender filed its initial motion for new trial on June 16, 2014. Cl.R.

39. Subsequently, on August 11, 2014, some 87 days after the trial

court signed the default judgment, Tax Lender filed a second motion

for new trial, for the first time complaining of improper service of

process. Cl.R. 49, 51-52.

      The rule establishing deadlines for motions for new trial

states, “One or more amended motions for new trial may be filed . .

. within 30 days after the judgment or other order complained of is

signed.” Tex. R. Civ. P. 329b(b). Consequently, an amended motion


5FaultingHome Owners for failing to correct the citation when Tax Lender has
admitted that its agent received the citation and failed to assert that service
was improper reeks of hypocrisy.
                                                                             15
for new trial filed more than thirty days after the trial court signed

its judgment is untimely. Prasad v. Capital Farm Credit, FLCA,

2013 WL 3877666 at 2 (Tex. App.--Houston [1st Dist.] 2013, no

pet.).6 “Thus, an untimely amended motion for new trial does not

preserve issues for appellate review, even if the trial court considers

and denies the untimely motion within its plenary power period.”

Thomas v. Ginter, 2014 WL 3738054 at 4 (Tex. App.--Houston [1st

Dist.] 2014, no pet.). In other words, the second motion for new

trial constitutes a nullity, and does not preserve error.7 Portfolio

Recovery Associates, LLC v. Talplacido, 2012 WL 204541 at 2 (Tex.

App.--Dallas 2012, no pet.).           Accordingly, only the complaints

contained in Tax Lender's initial motion for new trial are properly

before this Court, Hester v. State, 497 S.W.2d 501, 503 (Tex. Civ.

App.--El Paso 1972, writ ref’d n.r.e.)8; thus, its service of process

complaints are not before this Court. Berlanga v. Berlanga, 2012



6Tax  Lender has blithely ignored this Rule herein, claiming that if the second or
amended motion for new trial was filed while the trial court possessed plenary
power, the complaints therein were properly preserved. Appellant’s Brief, p. 6.
7Thus, contrary to Tax Lender, Appellant’s Brief, p. 2, such motion was not

overruled by operation of law.
8"The amended motion for new trial being a nullity, it cannot form the basis for

points of error on appeal. However, the appeal to this Court is timely . . .
Appellants are before this Court, but they are here only as to such assignments
of error as were made in their original motion for new trial."
                                                                                16
WL 252497 at 1 (Tex. App.--Beaumont 2012, no pet.); Bubba's of

San Antonio v. Leyendecker Const., Inc., 2010 WL 2403717 at 2

(Tex. App.--San Antonio 2010, no pet.).

[C] Trial Court Never Given Opportunity to Exercise Discretion

     On the morning of the hearing on Tax Lender’s Motion for New

Trial, Home Owners objected to proceeding, and the trial court

sustained the objection. Cl.R. 5. Tax Lender failed to obtain a new

setting, and failed to file its promised motion for reconsideration.

Cl.R. 5.   Thus, the trial court was deprived of an opportunity of

reviewing and ruling on Tax Lender’s motion, and no express ruling

was ever obtained.     Cl.R. 5.    Instead, its initial motion was

overruled by operation of law. Thus, Tax Lender’s complaints are

not predicated upon any actual exercise of discretion by the trial

court.

     A trial court cannot abuse its discretion, unless it is actually

called upon to exercise such discretion. This principle applies to

motions for new trial to set aside default judgments.      See, e.g.,

Williams v. Bayview-Realty Associates, 420 S.W.3d 358, 364-65

(Tex. App.--Houston [14th Dist.] 2014, no pet.). As this Court has

indicated generally, "the proponent of a motion for new trial has the

                                                                   17
burden of presenting it to the trial court, obtaining a hearing on it,

and presenting evidence to substantiate any factual matters

necessary to show entitlement to the requested relief." Herring v.

Childers, 2004 WL 1926795 at 8 n. 9 (Tex. App.--Corpus Christi

2004, pet. denied). Naturally, this applies to motions for new trial

seeking to set aside a default judgment; because the motion

requires both the consideration of evidence and the exercise of

discretion, the trial court must be given the opportunity to exercise

such discretion. Fluty v. Simmons Co., 835 S.W.2d 664, 667 (Tex.

App.--Dallas 1992, no writ).    If the defaulting defendant fails to

obtain a hearing and an express ruling on its motion for new trial,

then it cannot claim error on appeal. Cisneros v. Regalado Family

Ltd. Partnership, 2011 WL 3366345 at 2-3 (Tex. App.--Corpus

Christi 2011, no pet.); James v. Comm'n for Lawyer Discipline, 310

S.W.3d 586, 594–95 (Tex. App.--Dallas 2010, no pet.); Lilly v. Tolar,

2002 WL 1926527 at 3 (Tex. App.--Texarkana 2002, pet. denied);

Shamrock Roofing Supply, Inc. v. Mercantile Nat. Bank at Dallas,

703 S.W.2d 356, 357-58 (Tex. App.--Dallas 1985, no writ).

     In the case at bar, such principles preclude granting a new

trial by this Court. Tax Lender admits in its brief that it failed to

                                                                    18
obtain an express ruling on its motion for new trial.9          Thus, Tax

Lender cannot now complain of the trial court’s failure to grant

relief. Cisneros v. Regalado Family Ltd. Partnership, supra; James

v. Comm'n for Lawyer Discipline, supra; Lilly v. Tolar, supra;

Shamrock Roofing Supply, Inc. v. Mercantile Nat. Bank at Dallas,

supra.

               TAX LENDER CLEARLY NOT ENTITLED
                        TO NEW TRIAL

       Home Owners believe that in light of the foregoing, this Court

can summarily affirm the trial court's judgment. However, even if

this Court ignores the mandatory requirement of preservation of

error, the trial court's judgment must still be affirmed.

[A] Alleged Defects in Service Do Not Warrant New Trial

       Admittedly, service of process requires strict compliance.

However (and contrary to Tax Lender), strict compliance does not

require obeisance to the minutest detail. Herbert v. Greater Gulf

Coast Enterprises, Inc., 915 S.W.2d 866, 871 (Tex. App.--Houston

[1st Dist.] 1995, no writ). Accordingly, as long as the record shows,

with reasonable certainty, that the citation was served on the

9TaxLender does not assert a point of error with regard to the trial court’s
conduct.
                                                                          19
defendant in the suit, service of process will not be invalidated. LEJ

Development Corp. v. Southwest Bank, 407 S.W.3d 863, 866 (Tex.

App.--Fort Worth 2013, no pet.).     Accordingly, the type of errors

cited by Tax Lender in its brief do not invalidate service. See, e.g.,

Williams v. Williams, 150 S.W.3d 436, 443–44 (Tex. App.--Austin

2004, pet. denied)(omission of petitioner's name from citation not

fatal where no confusion about whether the correct party was

actually served); Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.-

-Corpus Christi 1996, no writ)(hand-written notation “c/o Maria

Regalado” on the return of the citation did not invalidate service

where record showed, with reasonable certainty, that the citation

was served on the defendant in the suit); Ortiz v. Avante Villa at

Corpus Christi, Inc., 926 S.W.2d 608, 613 (Tex. App.--Corpus

Christi 1996, writ denied)(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); 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 Petitfrere,” the return reflected “Philipee

Petitfreere”); Popkowsi v. Gramza, 671 S.W.2d 915, 918 (Tex. App.--

                                                                    20
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 the case at bar, no dispute exists that Tax Lender was

properly served with process; it expressly acknowledged as much in

its motion for new trial.     Cl.R. 41.   Tax Lender admits that

Corporation Service Company d/b/a CSA-Lawyers Incorporated

Service Company is its registered agent for service, and the second

amended petition delivered by certified mail restricted delivery to

Corporation Service Company d/b/a CSA-Lawyers Incorporated

Service Company. Cl.R. 32-34, 41. Despite the typographical error

in the return, the petition and citation clearly show that the second

amended petition was served, especially in light of Tax Lender's

admission. Cl.R. 32-34, 41. Thus, service of process was proper.

Williams v. Williams, supra; Regalado v. State, supra; Ortiz v.

Avante Villa at Corpus Christi, Inc., supra; Payne & Keller Co. v.

Word, supra.

     Additionally, Tax Lender claims that service on it was

improper because the magic word “agent” was not contained on the

green card. Again, Tax Lender does not dispute that Corporation

                                                                   21
Service   Company     d/b/a    CSA-Lawyers     Incorporated     Service

Company is the registered agent for service of process for Tax

Lender, and its agent signed for the certified mail. Cl.R. 41. As

long as the citation was received by the agent, service is proper.

Myan Management Group, L.L.C. v. Adam Sparks Family Revocable

Trust, 292 S.W.3d 750, 753 (Tex. App.--Dallas 2009, no pet.);

Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 290

(Tex. App.--Dallas 2003, no pet.). In the case at bar, Tax Lender’s

agent scribbled her name on the green card containing the second

amended petition, but failed to include the word agent on the green

card for Tax Lender. Cl.R. 33. It should not be able to claim service

is improper because its agent neglects to reflect her status.

     More fundamentally, a wrongdoer is not allowed to profit from

his own wrong. Dorchester Gas Producing Co. v. Harlow Corp., 743

S.W.2d 243, 257 (Tex. App.--Amarillo 1987, writ denied).        "There

are fundamental maxims of the common law which say: No one

shall be permitted to profit by his own fraud, or to take advantage

of his own wrong, or to found any claim upon his own iniquity, or to

acquire property by his own crime. These maxims are adopted by

public policy, and have their foundation in universal law admin-

                                                                     22
istered in all civilized countries”. Ovalle v. Ovalle, 604 S.W.2d 526,

528 (Tex. Civ. App.--Waco 1980, no writ). If Tax Lender is correct,

then both it violated federal law by having someone other than its

agent sign for the citations. Tax Agent is now attempting to parley

its and its agent violation of federal law into claiming service of

process was improper, and therefore having the default judgment

set aside. However, because Tax Lender violated federal law, Tax

Lender cannot benefit from such violation.

     Tax Lender also complains that the manner of service of

process was improper, because a private process server utilized the

United States post office, just as the clerk’s office can.       This

contention was expressly rejected by the Houston Court of Appeals

in P & H Transp., Inc. v. Robinson, 930 S.W.2d 857 (Tex. App.--

Houston [1s Dist.] 1996, writ denied). In this case, the defaulting

defendant was served by private process server, using the United

States postal service. The defaulting defendant (just as Tax Lender

herein) claimed that such process was improper.         However, on

appeal, the reviewing court disagreed:

          In point of error one, appellants contend
          service on P & H was not valid because it
          violated rule 103, which provides service by

                                                                    23
         certified mail shall, if requested, be made by
         the clerk of the court. See Tex. R. Civ. P. 103.
         The record shows P & H was served by certified
         mail sent by Cathy Romack, an authorized
         private process server. Appellants urge us to
         interpret the rule to mean service by mail may
         be made only by the clerk. We decline to do
         so. Rule 103 simply addresses who may serve;
         rule 106 addresses the method of service, and
         provides in pertinent part:

              (a) Unless the citation or an order of
                  the court otherwise directs,
                  citation shall be served by any
                  person authorized by rule 103 by

              . . . . .

              (2) mailing to the defendant by
              registered or certified mail, return
              receipt requested, a true copy of the
              citation with a copy of the petition
              attached thereto.

         Tex. R. Civ. P. 106(a)(2). “Service of citation
         may be made by mail, either by an officer or
         authorized person. Service by registered or
         certified mail and citation by publication may
         also be made by the clerk of the court where
         the case is pending.” 2 Roy W. McDonald,
         Texas Civil Practice in District and County
         Courts § 9.11 (Supp.1991). We hold service by
         mail may be made not only by the clerk but
         also by other authorized persons.

Id at 859; accord, Warren v. Zamarron, 2005 WL 1038822 (Tex.




                                                            24
App.--Austin 2005, no pet.).10             Accordingly, service of process

cannot be set aside on this ground.

[B] Holding Service of Process Improper Herein Unconstitutional

      Statutes and rules are designed to remedy an evil. However,

merely claiming that an evil exists does not render the statute or

rule proper. If the statute or rule does not address the very evil it

seeks to eliminate, it is unconstitutional. HL Farm Corp. v. Self,

877 S.W.2d 288, 292 (Tex. 1994).

      But not only are statutes and rules which fail to serve their

purpose unconstitutional; statutes and rules which seek to remedy

an actual wrong but are overinclusive or which otherwise create

conclusive     presumptions       are    likewise   unconstitutional.         For

example, in Sullivan v. University Interscholastic League, 616

S.W.2d 170 (Tex. 1981), the UIL had enacted a rule forbidding

transfer students from engaging in extracurricular activities (with

an exception for seniors).              The rule was designed to forbid

recruitment of athletes, a worthy goal.                 However, the Texas

Supreme Court held U.I.L.'s no transfer rule unconstitutional,

10Contrary  to Tax Lender herein, the defect in service in Ikon Office Solutions,
Inc. v. Integrity Communications, Ltd., 2006 WL 1644670 (Tex. App.--Corpus
Christi 2006, no pet.) was that the plaintiff’s attorney, not a disinterested third
person, served the petition, not that it was served by mail.
                                                                                 25
because it was overinclusive, i.e. it swept too broadly:

          In practical effect, the challenged classification
          simply does not operate rationally to deter
          recruitment. The U.I.L. rule is overbroad and
          over-inclusive. The rule burdens many high
          school athletes who were not recruited and
          were forced to move when their family moved
          for employment or other reasons. The fact that
          there is no means of rebutting the
          presumption that all transferring athletes have
          been recruited illustrates the capriciousness of
          the rule. The inclusion of athletes who have
          legitimately transferred with recruited athletes
          does not further the purpose of the transfer
          rule. Under strict equal protection analysis the
          classification must include all those similarly
          situated with respect to purpose. It is clear
          that the transfer rule broadly affects athletes
          who are not similarly situated.

          The U.I.L. has a rule which specifically
          prohibits recruitment of high school athletes.
          The transfer rule was enacted in addition to
          this specific rule. The over-inclusiveness and
          the harshness of the transfer rule is not
          rationally related to the purpose of preventing
          recruitment. An exception exists to the
          transfer rule in regard to seniors. There is no
          rational reason why the exception given
          seniors cannot be extended to others. In
          practical operation the transfer rule excludes
          from participation in varsity athletics the
          majority of students who transfer for reasons
          unrelated to recruitment. The legitimate goal of
          the transfer rule does not justify the harsh
          means of accomplishing this goal utilized by
          the U.I.L.


                                                               26
Id. at 173.

     Likewise, the Texas Guest Statute forbade passengers who

were victims in an automobile accident from suing the driver, if the

driver was a family member. The statute was designed to prevent

collusive lawsuits, again another worthy goal. However, this statute

likewise swept too broadly, creating conclusive presumptions that

family members were liars, and consequently was unconstitutional:

              The     Texas    Guest     Statute    creates   a
              presumption that all automobile passengers
              suing a driver who is within the second degree
              of affinity or consanguinity do so collusively.
              We refuse to indulge in the assumption that
              close relatives will prevaricate so as to promote
              a spurious lawsuit. No better example exists
              than in this case. Had collusion existed,
              Bynum could have acknowledged Whitworth
              as a paying passenger or admitted to acts of
              gross negligence. Dishonest individuals will
              always attempt to circumvent the intent of the
              statute by lying, while honest citizens are
              penalized when the truth brings them within
              the statutory scope denying them a negligence
              cause of action.

              Additionally, the statute affords no opportunity
              for proof that a suit was filed because a
              plaintiff conscientiously believed that his
              injury was caused by the negligence of a
              person within the proscribed degree of
              relationship. In this respect, the Guest Statute
              is not unlike the University Interscholastic
              League rule that presumed all students who

                                                                  27
           transferred schools did so because they were
           recruited to participate in athletics. It was this
           irrebuttable presumption that we condemned
           as being violative of equal protection
           guarantees in Sullivan.

Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985).

     In the case at bar, the rule asserted by Tax Lender, i.e. any

error invalidates service (especially after proper service was

admitted, Cl.R. 41), runs afoul of the United States and Texas

constitutions. The purpose of citation and service is to notify the

defendant of the pendency of the lawsuit. Tax Lender’s rule creates

an impermissible conclusive presumption that if perfection is not

followed, the default judgment is improper. This is clearly false, as

the facts of this case demonstrate. Likewise, Tax Lender’s rule is

overinclusive, i.e. it remedies both cases in which the defendant

does not receive notice and those cases in which he actually does.

Therefore, the default judgment cannot be invalidated on such

grounds.

[C] New Trials Not Granted Like Flowers on Valentine's Day

     Contrary to Tax Lender, new trials are not given out to

defaulting defendants like flowers on valentine's day. Instead, "It is

within the discretion of the trial court to decide whether the facts of

                                                                     28
the case warrant vacation of the default judgment and the granting

of a new trial." Carey Crutcher, Inc. v. Mid Coast Diesel Services,

Inc., 725 S.W.2d 500, 501 (Tex. App.--Corpus Christi 1987, no

writ). “Trial courts should set aside defaults only if convinced that

defendant acted in good faith and that the accident or mistake by

which he seeks to excuse himself was the cause of his default, and

that he could not have protected himself by the exercise of

reasonable diligence.”. Liberty Mutual Fire Ins. Co. v. Ybarra, 751

S.W.2d 615, 618 (Tex. App.--El Paso 1988, no writ). In its brief, Tax

Lender merely pounds its chest, now claiming it is the victim; but

such chest pounding cannot drown out its failure to satisfy its

burden.

     In order to have a default judgment set aside and a new trial

granted, a defendant must demonstrate each of the following:

             1. his failure to appear was not intentional
                or the result of conscious indifference,
                but rather was due to accident or
                mistake;

             2. the motion for new trial sets up a
                meritorious defense; and

             3. the granting of a new trial will occasion
                no delay or otherwise work an injury to
                the plaintiff.

                                                                   29
Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124,

126 (1939); Dupnik v. Aransas County Navigation District No. 1,

732 S.W.2d 780, 781 (Tex. App.--Corpus Christi 1987, no writ).

The burden of proof for establishing these elements falls squarely

upon the shoulders of the defaulting defendant. Cocke v. Saks, 776

S.W.2d 788, 790 (Tex. App.--Corpus Christi 1989, writ denied).

     Furthermore, in deciding whether these elements have been

satisfied, the trial court is not required to accept the defaulting

defendant's evidence at face value, but rather determines the

credibility of the witnesses and the weight their testimony should be

given. Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265

(Tex. App.--Texarkana 1992, writ dism'd). Thus, "In exercising its

fact finding power, the trial court is not bound to accept conclusive

statements of a witness."    Vannerson v. Vannerson, 857 S.W.2d

659, 666 (Tex. App.--Houston [1st Dist.] 1993, writ denied); see

also, Kelly v. Brenham Floral Co., 2014 WL 4219448 at 4 (Tex.

App.--Houston [1st Dist.] 2014, no pet.)("As factfinder, the trial

court is given great latitude to believe or disbelieve a witness's

testimony, particularly if the witness is interested in the outcome.").


                                                                     30
Rather, the trial court may choose to believe all, none or part of a

witness's testimony. Stein v. Meachum, 748 S.W.2d 516, 517 (Tex.

App.--Dallas 1988, no writ).        This remains true, even if only

affidavits are presented.     Oak Creek Homes, Inc. v. Jones, 758

S.W.2d 288, 290 (Tex. App.--Waco 1988, no writ)("As the trier of

fact, it was the trial judge's prerogative and duty to weigh all the

evidence, pick out what he believed to be its most credible parts,

and make his determinations accordingly.").

     On appeal, a trial court's decision in granting or denying a

motion for new trial is reviewed for abuse of discretion. Southwest

Plaza Apts. v. Corpus Christi Brick & Lumber Co., 528 S.W.2d 885,

887 (Tex. Civ. App.--Corpus Christi 1975, no writ). In its brief, Tax

Lender has completely failed to address this standard of review;

from reviewing it, this Court would not know the principles involved

in such review of how it should be applied here. Appellant's Brief,

pp. 1-18.11   Such omission constitutes a clear briefing deficiency

which can mandate rebriefing or even summary affirmance of the

trial court's decision. See, Stooksbury v. State, 2009 WL 2883518

11Home   Owners would also point out that an appellant is also expected to
inform the reviewing court how and where the alleged error was preserved
before the trial court. In re D.M., 244 S.W.3d 397, 403-04 (Tex. App.--Waco
2007, no pet.)(Reyna, J., con.).
                                                                         31
at 5 (Tex. App.--Waco 2009, p.d.r. ref'd).       Tax Lender's silence

herein derives from a simple source: the trial court did not abuse its

discretion (assuming that it was called upon to exercise it).

     "A reviewing court cannot conclude that a trial court abused

its discretion if, in the same circumstances, it would have ruled

differently or if the trial court committed a mere error in judgment."

Engelman Irrigation Dist. v. Shields Bros., Inc., 960 S.W.2d 343,

354 (Tex. App.--Corpus Christi 1997), writ denied per curiam, 989

S.W.2d 360 (Tex. 1998); accord, Wal-Mart Stores, Inc. v. Sholl, 990

S.W.2d 412, 420 (Tex. App.--Corpus Christi 1999, writ denied);

Home Owners Funding Corp. of America v. Scheppler, 815 S.W.2d

884, 889 (Tex. App.--Corpus Christi 1991, no writ). Rather, "A trial

court abuses its discretion when it does not follow guiding rules

and principles and [thus] reaches an arbitrary and unreasonable

decision." In re Frost Nat. Bank, 103 S.W.3d 647, 649 (Tex. App.--

Corpus Christi 2003, mand. denied). As one reviewing court has

explained:

             The question is not whether the trial judge
             might have exercised better judgment, or made
             a mere error in judgment which are no doubt,
             common in many courts. In order for the trial
             court's actions to have been abusive, the order

                                                                    32
           must have been so unreasonable, so arbitrary,
           or based upon so gross and prejudicial an
           error of law as to have no basis in reason or in
           law.

Air Products & Chemicals, Inc. v Sanderson, 789 S.W.2d 651, 653

(Tex. App.--Beaumont 1990, no writ).

      In determining whether an abuse of discretion occurred, the

reviewing court must view the evidence in the light most favorable

to the trial court's action, and indulge every legal presumption in

favor of the judgment or order. In re J.I.Z., 170 S.W.3d 881, 883

(Tex. App.--Corpus Christi 2005, no pet.).         If some evidence

supports its decision, then the trial court acted within its

discretion. In re L.G.G., 398 S.W.3d 852, 855 (Tex. App.--Corpus

Christi 2012, no pet.); Reading & Bates Const. Co. v. O'Donnell,

627 S.W.2d 239, 244 (Tex. App.--Corpus Christi 1982, writ ref’d

n.r.e.).

      Furthermore, in reviewing an appellant’s abuse of discretion

complaints, the appellate court must keep in mind the role of the

trial judge. As this Court has explained, "[T]he trial court is in the

best position to observe the demeanor and personalities of the

witnesses and can feel forces, powers, and influences that cannot


                                                                    33
be discerned by merely reading the record."         E.C., Jr. ex rel.

Gonzales v. Graydon, 28 S.W.3d 825, 829 (Tex. App.--Corpus

Christi 2000, no pet.).     Based on such influences, forces, and

powers, the trial court determines the credibility of the witnesses,

assigns the weight to be given their testimony, Hines v. Commission

for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.--Corpus

Christi 2000, no pet.), and resolves and reconciles any conflicts

therein, accepting or rejecting such portions thereof as it sees fit.

City of Port Isabel v. Shiba, 976 S.W.2d 856, 859 (Tex. App.--

Corpus Christi 1998, writ denied). Thus, the trial court "is free to

reach its findings by believing or rejecting some or all of the contra-

dictory testimony when assessing the comparative truthfulness of

the witnesses." Cantu v. Butron, 921 S.W.2d 344, 349 (Tex. App.--

Corpus Christi 1996, writ denied); see also, Roberts v. Burkett, 802

S.W.2d 42, 47 (Tex. App.--Corpus Christi 1990, no writ); Fonseca v.

County of Hidalgo, 527 S.W.2d 474, 481 (Tex. Civ. App.--Corpus

Christi 1975, writ ref'd n.r.e.).   Regardless of Tax Lender's desire

herein, this Court cannot substitute its findings for the trial court's

concerning the credibility of the witnesses. Adams v. H & H Meat

Products, Inc., 41 S.W.3d 762, 769 (Tex. App.--Corpus Christi

                                                                     34
2000, no pet.).

     As applied to a motion for new trial after a default judgment, a

trial court does not abuse its discretion in denying such motion if

the defaulting defendant has failed to satisfy its burden under

Craddock. Liberty Mutual Fire Ins. Co. v. Ybarra, supra; see, Phifer

v. Nacogdoches County Central Appraisal Dist., 45 S.W.3d 159, 173

(Tex. App.--Tyler 2000, pet. denied); Continental Carbon Co. v. Sea-

Land Service, Inc., 27 S.W.3d 184, 190 (Tex. App.--Dallas 2000,

pet. denied). Likewise, a trial court does not abuse its discretion in

denying the motion or request if conflicting evidence is presented,

and the evidence reasonably supports its decision. Executive Tele-

Communication Systems v. Buchbaum, 669 S.W.2d 400, 403 (Tex.

App.--Dallas 1984, no writ).

[D] Tax Lender Acted With Conscious Indifference

     Pursuant to Craddock, Tax Lender was initially required to

demonstrate that it did not act with conscious indifference. While

Tax Lender claims it did not act with conscious indifference, Home

Owner initially questions whether it has properly briefed this issue.

It has completely failed to discuss or otherwise explain what legally

constitutes conscious indifference, sufficient to warrant a new trial.

                                                                    35
It failed to cite any legal authority discussing lack of conscious

indifference. And it failed to cite to the record when discussing lack

of conscious indifference.12 Appellant's Brief, p. 16.

      A party's briefing obligations do not cease by formulating the

issues presented. Instead, in order to comply with the Texas Rules

of Appellate Procedure, an appellant must perform three tasks.

See, Haas v. George, 71 S.W.3d 904, 914 (Tex. App.--Texarkana

2002, no pet.). First, the appellant must set forth the applicable

legal principles, with specific references to the legal authority which

supports this position. State v. $30,660.00, 136 S.W.3d 392, 405

(Tex. App.--Corpus Christi 2005, pet. denied); Texas Dep't of Public

Safety v. Struve, 79 S.W.3d 796, 801 n. 6 (Tex. App.--Corpus

Christi 2002, pet. denied). Second, the appellant must discuss the

facts of the case, designating the specific portions of the record

which support the alleged version of the facts.           Heath v. Herron,

732 S.W.2d 748, 752 (Tex. App.--Houston [14th Dist.] 1987, no

writ).13   Third, the appellant must apply the applicable law to the


12Such  omissions are also repeated with Tax Lender’s analysis of a meritorious
defense. Appellant's Brief, p. 17.
13An appellate court has no duty to independently search the record. Henry S.

Miller Management Corp. v. Houston State Bank Associates, 792 S.W.2d 128,
134 (Tex. App.--Houston [1st Dist.] 1990, no writ).
                                                                             36
applicable facts of the case. Brock v. Sutker, 215 S.W.3d 927, 929

(Tex. App.--Dallas 2007, no pet.). Mere conclusory application or

explanation fails to satisfy such fundamental requirements. Tacon

Mechanical Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d

666, 671 (Tex. App.--Houston [14th Dist.] 1994, writ denied).

Failure to comply with any of these requirements pounds a stake

into the heart of an appellant's complaint.

     In the case at bar, Tax Lender has failed to comply with any of

these requirements. It has failed to explain what constitutes lack of

conscious indifference. It has failed to explain to this Court how

the facts presented by this case demonstrate lack of conscious

indifference. And it has failed to cite this Court to the location in

the record where such facts can be found. Appellant's Brief, p. 16.

Instead, after reading Tax Lender’s brief, the prophetic words of the

Waco Court of Appeals immediately come to mind: "With disturbing

frequency, this Court receives briefs which are inadequate. It is a

waste and improper use of judicial resources to brief an appellant's

case for him.”   Walder v. State, 85 S.W.3d 824, 827 (Tex. App.--

Waco 2002, no p.d.r.).    Accordingly, any error has been waived.

Columbia Rio Grande Regional Hospital v. Stover, 17 S.W.3d 387,

                                                                   37
391 (Tex. App.--Corpus Christi 2000, no writ); Cardenas v.

Continental Ins. Co., 960 S.W.2d 401, 404 (Tex. App.--Corpus

Christi 1998, writ denied).

     Even if Tax Lender had not waived this complaint, such error

nevertheless remains completely devoid of any merit.      Conscious

indifference in this context means failure to take action that would

seem indicated to a person of reasonable sensibilities under the

same or similar circumstances.     Dreisbach v. Reed, 780 S.W.2d

901, 903 (Tex. App.--El Paso 1989, no writ); Johnson v. Edmonds,

712 S.W.2d 651, 652-53 (Tex. App.--Fort Worth 1986, no writ).

Whether such conscious indifference exists presents a question of

fact. P & H Transportation, Inc. v. Robinson, 930 S.W.2d 857, 861

(Tex. App.--Houston [1st Dist.] 1996, no writ).   If a party fails to

explain why he failed to take action, he consequently fails to prove

lack of conscious indifference.   Konkel v. Otwell, 65 S.W.3d 183,

187 (Tex. App.--Eastland 2001, no writ).

     Apparently completely unknown to Tax Lender, when a

defaulting defendant's excuse is his reliance on an agent, he must

demonstrate that both he and his agent were free of conscious

indifference.   See, Sharm, Inc. v. Martinez, 900 S.W.2d 777, 782

                                                                   38
(Tex. App.--Corpus Christi 1995, no writ); Dreisbach v. Reed, supra.

For example, in Memorial Hospital System v. Fisher Ins. Agency,

Inc., 835 S.W.2d 645 (Tex. App.--Houston [14th Dist.] 1992, no

writ), the defendant, Fisher, was served and forwarded the petition

and citation to its insurance company. When a default judgment

was granted, the defendant was granted a motion for new trial

because it had forwarded the petition and citation to the insurance

company. However, on appeal, the order granting the new trial was

set aside and the default judgment reinstated, because Fisher failed

to explain what the insurance company did after receiving the

petition:

            When a party relies on an agent or
            representative to file an answer, the party
            must establish that the failure to answer was
            not intentional or the result of conscious
            indifference of either the party or the agent.
            Thus, the movant cannot be relieved from a
            default judgment on the ground that it turned
            the petition over to its insurer and relied upon
            the insurer to file an answer, in the absence of
            showing why the insurer failed to answer.
            Fisher offers no reasonable explanation of why
            its insurance carrier failed to represent its
            interest in the present case. Furthermore,
            conscious indifference can be defined as the
            failure to take some action which would seem
            indicated     to   a   person    of   reasonable
            sensibilities under the same circumstances. It

                                                                  39
          is reasonable to assume that when a prudent
          person is served with a petition concerning a
          lawsuit and is relying on his agent to represent
          his interest, he is going to make sure that his
          agent is using due diligence in handling the
          lawsuit. Fisher has not shown that its failure
          to file an answer was not intentional or the
          result of conscious indifference.

Id. at 652; accord, Cornerstone Alternatives, Inc. v. Patterson

Oldsmobile-GMC-Toyota, Inc., 696 S.W.2d 702 (Tex. App.--Fort

Worth 1985, no writ).

     The same principle applies to the case at bar, and precludes a

new trial. Admittedly, Tax Lender claims never received the citation

and petition from its registered agent. Cl.R. 47-48. However, Tax

Lender has completely failed to explain what his registered agent

did after receiving the citation and petition. Moreover, Tax Lender

failed to present any evidence from his registered agent to support

such lack of explanation.   Cl.R. 39-48.   As a result, Tax Lender

completely failed to demonstrate lack of conscious indifference, and

therefore the trial court did not abuse its discretion in failing to

grant a new trial. Scenic Mountain Medical Center v. Castillo, 162

S.W.3d 587, 590-91 (Tex. App.--El Paso 2005, no pet.); Faulkner v.

Stark, 2004 WL 1698052 at 2 (Tex. App.--Texarkana 2004, no pet.).


                                                                  40
[E] Tax Lender Failed to Set Up Meritorious Defense

     As the second element to obtain a new trial, Tax Lender was

required to establish a meritorious defense.      "To establish a

meritorious defense, the movant must basically prove the same

defense which must be established if he is later to have a judgment

in his favor.   A meritorious defense is one going to the merits,

substance or essentials of the case." Stock v. Stock, 702 S.W.2d

713, 715 (Tex. App.--San Antonio 1985, no writ). The meritorious

defense must address or defeat all causes of action pled.      See,

Equinox Enterprises, Inc. v. Associated Media, Inc., 730 S.W.2d

872, 876 (Tex. App.--Dallas 1987, no writ).       Furthermore, all

elements of the defense must be established.      As one appellate

court has explained:

          In "setting up" a meritorious defense, the
          movant must allege facts, not conclusions.
          Moreover, those facts must constitute "prima
          facie" evidence of the defense. In other words,
          they must touch upon each element
          comprising the defense. For instance, if a
          defense were composed of elements "X," "Y,"
          and "Z" but the evidence propounded
          addressed nothing other than component "X,"
          then the movant would not have met his
          burden. Nothing less can be required if the
          courts are to adhere to the directive that the
          motion must be supported by affidavits or

                                                                 41
             other evidence proving prima facie that the
             defendant has such meritorious defense.
             Nothing less can be accepted as the courts
             strive to avoid reopening cases simply to try
             out fictitious or unmeritorious defenses.

Hicks v. Flores, 900 S.W.2d 504, 506-07 (Tex. App.--Amarillo 1995,

no writ).

     "To meet the requirement that the motion set up a meritorious

defense, the defendant must alleged facts which in law would

constitute a defense to the cause of action asserted by the plaintiff.

Those facts must be supported by affidavits or other evidence

proving, prima facie, that the defendant has a meritorious defense."

Siegler v. Williams, 658 S.W.2d 236, 239 (Tex. App.--Houston [1st

Dist.] 1983, no writ).          Affidavits containing conclusions and

conclusory evidence are devoid of probative value.          Prime Prods.,

Inc. v. SSI Plastics, 97 S.W.3d 631, 637 (Tex. App.--Houston [1st

Dist.] 2002, pet. denied).         As applied to affidavits supporting

motions for new trial, conclusions and conclusory evidence fails to

satisfy     the   defaulting   defendant's   burden   of   establishing   a

meritorious defense.       Wates v. Carlock, 1996 WL 603863 at 3-4

(Tex. App.--Amarillo 1996, writ denied); Salt Water Resources v.

Kirkpatrick & O'Donnell Const. Equipment Co., 694 S.W.2d 122,

                                                                          42
123 (Tex. App.--Dallas 1985, no writ).

     In the case at bar, Tax Lender's president testified as follows:

           The Plaintiffs allege that the failure to provide
           insurance on their properties was somehow
           the fault of Alamo Home Finance, Inc.
           However, when the Duran's closed their loan
           with Alamo, they specifically stated they did
           not want insurance on the property because
           the properties were already insured. At the
           Plaintiffs' request, Alamo never contracted to
           purchase insurance on the Plaintiffs' behalf
           and never otherwise had a responsibility to do
           so.

Cl.R. 48. Such statements are conclusory, because the who, what,

why, when and where remain completely unmentioned. Likewise,

no documentation or other evidence was presented in support

thereof. Cl.R. 39-48. Thus, such statements fail to warrant a new

trial. See, K & M Tools, Inc. v. Bencon Management and General

Contracting Corp., 1997 WL 605097 at 3 (Tex. App.--Houston [14th

Dist.] 1997, writ denied); Haskins v. Finks, 470 S.W.2d 717, 718

(Tex. Civ. App.--Eastland 1971, writ ref’d n.r.e.).

     Ignoring the conclusory nature of such evidence, Tax Lender's

statement further fails to establish a meritorious because it fails to

address all the causes of action listed. In their second amended

petition, Home Owners sued Tax Lender for unconscionable course

                                                                        43
of conduct, omission of facts and information, breach of fiduciary

duty, fraud, and negligence. 1 Supp.Cl.R. 52-57. In order to obtain

a new trial, Tax Lender was required to address all asserted causes

of action.     Hicks v. Flores, supra.14           Tax Lender's conclusory

statement, even if assumed true, does not explain why Home

Owner's were charged for insurance when they did not receive it.

Accordingly, Tax Lender was not entitled to a new trial.

[F] Tax Lender’s Offers of Equity Insufficient

        Finally, to obtain a new trial, a defendant must demonstrate

that the granting thereof will occasion no delay or otherwise work

an injury to the plaintiff. Concededly, no hard and fast rule exists

for satisfying this element; rather, whether its satisfaction lies

within the discretion of the trial court. United Beef Producers, Inc.

v. Lookingbill, 532 S.W.2d 958, 959 (Tex. 1976). While often getting

the short shrift, this element is just as important as the other

elements contained in the Craddock formulation.                      Should a

defendant fail to satisfy this element, the trial court properly denies


14Tax Lender's assertion that Home Owners' claims are barred by limitations,
Appellant's Brief, p. 17, are not properly before this Court. First, they were not
contained in Tax Lender's initial motion for new trial. Cl.R. 39-44. Second, the
statute of limitations for fraud is four years. Williams v. Khalaf, 802 S.W.2d
651 (Tex. 1990).
                                                                                44
a motion for new trial. Glittenberg v. Hughes, 524 S.W.2d 954, 956

57 (Tex. Civ. App.--Fort Worth 1975, no writ).

     Absent unusual circumstances, to satisfy this element, the

defaulting defendant must offer to reimburse the plaintiff, White v.

Douglas, 569 S.W.2d 635, 637 (Tex. Civ. App.--Texarkana 1978, no

writ), and must offer to go to trial immediately. First National Bank

of Bryan v. Peterson, 709 S.W.2d 276, 279 (Tex. App.--Houston

[14th Dist.] 1986, writ ref'd n.r.e).   For example, in O'Connell v.

O'Connell, 843 S.W.2d 212 (Tex. App.--Texarkana 1992, no writ),

the defaulting defendant requested that the trial court set the case

for retrial "at any time after the expiration of 30 days". Thus, the

defaulting party was not "ready, willing and able" to "proceed with

trial immediately as required by the third prong of Craddock. This

is true despite almost five months having passed since the case was

first set for trial and forty five days having passed since the trial

court entered the default judgment against her."     Thus, the trial

court did not abuse its discretion in denying the motion for new

trial. Id. at 220.

     In the case at bar, Tax Lender failed to satisfy this require-

ment.   It failed to offer to proceed to trial immediately, Cl.R. 44,

                                                                   45
especially in light of the prior delay already encountered in the

prosecution of this matter. 1 Supp.Cl.R. 32. As a result, the trial

court did not abuse its discretion in refusing to grant a new trial.

Texas General Indem. Co. v. McKay, 595 S.W.2d 884, 887 (Tex. Civ.

App.--Waco 1980, writ ref’d n.r.e.).

               CONCLUSION AND PRAYER

     Tax Lender’s conduct herein reeks of unfairness. Regardless

of who said what about insurance herein, it is fundamentally unfair

to take a portion the loan proceeds for insurance, and then fail to

purchase it.   It is fundamentally unfair to admit before the trial

court that service was proper, and then claim before the appellate

court that it was not.   It is fundamentally unfair to not appraise

both the trial court and the plaintiff of service complaints, in order

to permit the actual facts to be developed and any typographical

errors to be corrected. And it is fundamentally unfair to hold that a

trial court abused its discretion, when it is not ever called upon to

exercise such discretion. Unless the legal system and its rules are

to be replaced with the law of the jungle, such fundamental

unfairness must possess consequences.        And as applied to Tax


                                                                    46
Lender herein, such consequences mean that its efforts to set aside

the default judgment must be denied.

     WHEREFORE, PREMISES CONSIDERED, MARIO DURAN and

MARIA DURAN, Appellees, respectfully pray that the judgment of

the trial court be AFFIRMED, and for all other and further relief,

either at law or in equity, to which Appellees show themselves justly

entitled.

                          Respectfully submitted,

                          LIVESAY LAW OFFICE
                          BRAZOS SUITES NO. 9
                          517 West Nolana
                          McAllen, Texas 78504
                          (956) 928-0149

                          By: __Keith C. Livesay___________
                               KEITH C. LIVESAY
                               State Bar. No. 12437100

                          Francisco J. Rodriguez
                          State Bar No. 17145800
                          LAW OFFICE OF FRANCISCO J. RODRIGUEZ
                          1111 W. Nolana Ave.
                          McAllen, Texas 78504
                          Tel: (956) 687-4363
                          Fax: (956) 687-6415

              CERTIFICATE OF COMPLIANCE

     I, KEITH C. LIVESAY, do hereby certify that the above and


                                                                   47
foregoing brief was generated using Word 2007 using 14 point font

and contains 9661 words.

                              By: ____Keith C. Livesay__________
                                   KEITH C. LIVESAY


                CERTIFICATE OF SERVICE

     I, KEITH C. LIVESAY, do hereby certify that I have caused to

be delivered a true and correct copy of the above and foregoing

document to Opposing Counsel on this the 9th day of March, 2015.

                              By: ____Keith C. Livesay_________
                                   KEITH C. LIVESAY




                                                                   48
