                                                                                                     ACCEPTED
                                                                                                04-15-00036-CV
                                                                                     FOURTH COURT OF APPEALS
                                                                                          SAN ANTONIO, TEXAS
                                                                                           4/14/2015 8:31:54 AM
                                                                                                  KEITH HOTTLE
                                                                                                         CLERK


                                   No.04-15-00036-CV

      IN THE FOURTH COURT OF APPEALS       AT
                                        FILED  IN
                                 4th COURT OF APPEALS
                                  SAN ANTONIO, TEXAS
                 SAN ANTONIO     04/14/2015 8:31:54 AM
               ______________________________________________________________
                                                                          KEITH E. HOTTLE
                                                                               Clerk


                     DAVID WAYNE THOMPSON Appellant,

                                             vs.

                TRAVIS BAILEY AND LISA BAILEY, Appellees
____________________________________________

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

                     (Trial Court Cause No. 2013-07-29422-CV)

______________________________________________________________________________________


                           APPELLEES BRIEF
_______________________________________________________________________________________


                                               Paul J. Tarski
                                               State Bar No. 19652525
                                               Email: paul@tarskilaw.com
                                               205 North Getty Street
                                               Uvalde, TX 78801
                                               Tel:(830) 278 - 2544
                                               Tel:(830) 278 - 7316
                                               Counsel for Appellees



                ORAL ARGUMENT IS REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      In compliance with Tex. R. App. P. 38.1(a), Appellant provides the

following list of the parties to the trial court at issue, and the names and addresses

of the trial and appellate counsel for the parties:


      Appellees:          Travis Bailey and Lisa Bailey

      Represented by:      Paul J. Tarski (Trial and Appellate Counsel)
                           State Bar No. 19652525
                           Email: paul@tarskilaw.com
                           Alexandra T. Wegrzyn
                           State Bar No. 24076765
                           Email: alexandra@tarskilaw.com
                           Law Offices of Paul J. Tarski
                           205 N. Getty St.
                           Uvalde, TX 78801
                           Tel:(830) 278 - 2544
                           Tel:(830) 278 - 7316


      Appellant:          David Wayne Thompson

      Represented by: Rogelio M. Munoz (Trial and Appellate Counsel)
                      State Bar No. 24044409
                      Email: roy@swtexaslaw.com
                      The Munoz Law Firm
                      231 S. Getty St.
                      Uvalde, TX 78801
                      Tel:(830) 278 - 1150
                      Tel:(830) 278 - 1559




                                           ii
                                         TABLE OF CONTENTS

 IDENTITY OF PARTIES AND COUNSEL ........................................................ ii

TABLE OF CONTENTS........................................................................................ iii

INDEX OF AUTHORITIES................................................................................... iv

REFERENCE CITATION GUIDE ........................................................................ vi

STATEMENT OF THE CASE.................................................................................1

STATEMENT REGARDING ORAL ARGUMENT ..............................................2

ISSUES PRESENTED..............................................................................................2

  1. Did the trial court commit reversible error by reinstating the default judgment.

STATEMENT OF THE FACTS .............................................................................2

SUMMARY OF THE ARGUMENT .......................................................................6

ARGUMENT AND AUTHORITY ..........................................................................7

I. Standard of Review .............................................................................................7

II. Argument ............................................................................................................7

CONCLUSION AND PRAYER ............................................................................16

CERTIFICATE OF SERVICE ...............................................................................17

CERTIFICATE OF COMPLIANCE ......................................................................18




                                                            iii
                                INDEX OF AUTHORITIES
Strackbein v. Prewitt,
671 S.W.2d 37, 38 (Tex. 1984). .................................................................. 7

Equitable General Ins. Co. v. Yates,
684 S.W.2d 669, 670 (Tex. 1984). ........................................................ 7, 14

Johnson v. Fourth Ct. App.,
700 S.W.2d 916, 917 (Tex. 1985) ................................................................ 7

Mercedes-Benz Credit Corp. v. Rhyne,
925 S.W.2d 664 (Tex. 1996). ...................................................................... 8

Regalado v. State,
934 S.W.2d 852, 854 (Tex. App.--Corpus Christi 1996, no writ) .......... 8, 9

HB & WM, Inc. v. Smith,
802 S.W.2d 279 (Tex.App. —San Antonio 1990)................................. 9, 10

Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc.,
186 S.W.3d 571, 573-74 (Tex.2006) .......................................................... 9

Higginbotham v. General Life and Acc. Ins. Co.,
796 S.W.2d 695, 696-697 (Tex. 1990). .............................................. 11, 12

Dawson v. Briggs,
107 S.W.3d 739 (Tex.App.—Fort Worth 2003). ..................................... 12

Garrels v. Wales Transp., Inc.,
706 S.W.2d 757 (Tex.App. —Dallas 1986). ....................................... 12, 14

St. Louis & S. F. R. Co. v. Hale,
109 Tex. 251, 206 S.W. 75 (1918). ........................................................... 14

Hale and Ana-Log, Inc. v. City of Tyler,
520 S.W.2d 819 (Tex.Civ.App. Tyler 1975, no writ). .............................. 14


                                                    iv
 In re Baylor Medical Center at Garland,
 28 S.W.3d 227 (Tex. 2008). ....................................................................... 14

 Allied Rent-All, Inc. v. International Rental Ins.,
 764 S.W.2d 11 (Tex.App. —Houston [14 Dist.] 1988). ...................... 14, 15

 Grissom v. Watson,
 704 S.W.2d 325, 326 (Tex.1986); ............................................................ 15

 United Beef Producers, Inc. v. Lookingbill,
 532 S.W.2d 958, 959 (Tex.1976). ............................................................. 15

Rules

 Tex. R. App. P. 38.1(a) ............................................................................... ii

 Tex. R. Civ. P. 103 ................................................................ 3, 4, 5, 8, 9, 11

 Tex. R. Civ. P. 106 ................................................................................ 3, 10

 Tex. R. Civ. P. 118 .................................................................................... 11

 Tex. R. Civ. P. 320 ……………………………………………………….15




                                                         v
                       REFERENCE CITATION GUIDE

The Record on Appeal

   This Brief will refer to the record as follows:

         Clerk's Record                                "CR [page]" Clerk's

         Supplemental Record                           "CSR [page]"

   The reporter's record will be referred to in this brief as follows:

         Reporter's Record                              "[volume] RR [page]"




                                          vi
TO THE HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE

      This is an appeal from the trial court’s order that vacated a prior order

granting a new trial and reinstated a default judgment. Travis and Lisa Bailey

(hereinafter “the Baileys”) filed suit against David Wayne Thompson (hereinafter

“Thompson) for breach of contract arising from construction work that the Baileys

had hired Thompson to perform that he failed to complete. (CR 4-13) A default

judgment was obtained against Thompson, and he timely filed a motion for new

trial (CR 33-34) After a hearing, the trial court granted the motion for new trial and

awarded the Bailey’s attorney’s fees. (CR 55) About two months later, when

Thompson had taken no action on the case or made any payment of attorney’s fees,

the Baileys filed a motion to vacate the prior order granting new trial and to

reinstate the prior judgment. (CR 58-60) In response to the motion, after

Thompson filed a response motion and there was a full hearing on the issue, the

trial court entered a new order making the grant of a new trial conditioned upon the

payment of the Bailey’s attorney’s fees. (2 RR 9; CR 83-85) After Thompson

failed to make any attempt to pay the attorney’s fees as ordered, the trial court

entered an order vacating the order granting the motion for new trial. (SCR 3-4)

Thompson now appeals.

                                          1
                  STATEMENT REGARDING ORAL ARGUMENT

       Appellant requests oral argument because appellant believes it will assist the

Court in clarifying the issues addressed in the brief.



                                  ISSUES PRESENTED

       ISSUE ONE: Did the trial court commit reversible error by reinstating the

default judgment.

                            STATEMENT OF THE FACTS

       On July 7, 2013 the Baileys filed suit against Thompson, alleging breach of

contract and damages totaling $17,158.87. The suit arose from work the Baileys

hired Thompson to perform on their home and on a cabin on their property. (CR

4-6)

       On March 21, 2014 the Baileys filed a motion seeking authorization for

service to be perfected by leaving a copy of the citation with the petition attached

with anyone over 16 years of age or by leaving a copy of the citation with the

petition attached to the door of Thompson's residence. Attached to the Baileys

motion was an affidavit by their chosen process server Hector Olivarez (hereinafter

"Mr. Olivarez"). Mr. Olivarez stated that he was a retired deputy sheriff, and that

he had twice attempted service on Thompson but was unsuccessful though
                                           2
Thompson’s wife was present at the address and in contact with Thompson. (CR

24-29)

      On March 21, 2014 the trial court granted the motion for substituted service,

and on March 25, 2014 Mr. Olivarez served the citation and petition on

Thompson's wife. (CR 29-30) Thompson was never personally served, but when

made aware that his wife had been served it was his belief that he was not required

to take action because he thought that a lawsuit could not proceed unless he was

personally served. It is undisputed that Thompson had personal knowledge of the

lawsuit and that the alternative service was successful in providing service to

Thompson. (CR 41-42)

      When Mr. Olivarez served Thompson's wife he was a retired sheriff’s

deputy, and authorized by written order of the court to serve Thompson under rule

106 of the Texas Rules of Civil Procedure. (CR 27-28; 1 RR 9) Mr. Olivares was

authorized by written order of the 38th Judicial District Court to serve under rule

103 of the Texas Rules of Civil Procedure on July 17, 2014. (Appendix 1)

      Thompson did not file a written answer, and on April 28, 2014 the Baileys

obtained a default judgment against him. The judgment awarded $17,158.87 in

damages; $711.54 as interest on damages due to the date of the judgment; $7,500

in attorney's fees; and $338.00 in court costs. (CR 33-34)

                                         3
       On May 15, 2014, Thompson timely filed a motion for new trial. (CR 35) In

his motion he argued that a new trial should be granted on two grounds. First, he

argued that service was defective. He argued that because the process server, Mr.

Olivarez, was not authorized to serve under the Texas Rules of Civil Procedure

section 103, the service was defective, and without valid service the trial court

lacked personal jurisdiction.1 In the alternative, he argued that his mistake should

be excused for cause. (1 RR 6) He argued that his failure to answer was due to

accident or mistake, that he had a meritorious defense, and that a new trial would

not injure or delay the Baileys because he offered to pay reasonable attorney’s fees

and costs. (CR 35-43)

       In reply, the Baileys argued that Mr. Olivarez was authorized to serve under

rule 103 of the Texas Rules of Civil Procedure and that service was properly

completed. Alternatively, The Baileys argued that Thompson was well aware of

the suit, knew that he had been served via his wife, and the fact he did not

understand the citation, and made no response or attempt to understand the

citation, did not constitute a mistake of law sufficient to sustain a new trial 2. (CR

44-54)


1
  Mr. Thompson also argued that service was defective because he was never personally served
and that substituted service order should not have been authorized. He has not renewed those
arguments in this appeal.
2
  Though the Baileys made other arguments in response to the motion for new trial none are
applicable here.
                                              4
      A hearing was held on the motion for new trial on June 24, 2014. (1 RR 1)

The Order granting defendant’s motion for new trial was granted solely on the

grounds that the Court excused Thompson’s failure to appear for cause. (CR 55)

At the conclusion of the hearing, the trial court asked counsel for both parties to

research their respective positions and to submit any evidence in support thereof

by June 27, 2014. (1 RR 3, 9) In response, the Baileys counsel submitted a letter

to the Court dated June 27, 2014. (CR 56-57) At no time did Mr. Thompson’s

counsel provide the trial court any authority that Mr. Olivarez was not authorized

to serve process under Texas Rules of Civil Procedure section 103 as a retired

sheriff’s deputy.

      On July 2, 2014 the trial court granted the motion for new trial, but did not

grant the motion based upon defective service. The trial court ordered Thompson

to pay the Baileys $4,806.90 in costs associated with the motion for new trial

within 30 days from the signing of the order. (CR 33-34). Thompson wholly and

completely failed to comply with the court’s valid order by not tendering so much

as a dime. (2 RR 4)

      On August 28, 2014 the Baileys filed a motion to vacate the order granting

new trial and a motion to reinstate the prior judgment. The Baileys argued that,

because Thompson had failed to pay the attorney's fees, the default judgment

should be reinstated. (CR 58-60) On September 10, 2014 a hearing was held on
                                         5
the motion, and the court found that in its initial order granting new trial it did not

clearly provide that the motion for new trial was conditionally granted. The court

ordered counsel for the Baileys to provide Thompson with their billing statements

and ruled that if Thompson objected to the amount of the fees then the court would

hold a separate hearing to determine the appropriate amount of attorney's fees. The

court also ruled that once the appropriate amount of attorney's fees were

determined by the court, the motion for new trial would be conditionally granted.

(2 RR 9-11)

      On December 8, 2014 the hearing was held to determine the appropriate

amount of attorney's fees. The court ordered $2,677.50 in attorney's fees and

ordered Thompson to pay those fees on or before January 7, 2015. (3 RR 12)

      Thompson failed to pay the attorney's fees, and on February 5, 2015 the trial

court entered its order reinstating the prior judgment and vacating the order

granting new trial. (CSR 3-4).




                       SUMMARY OF THE ARGUMENT

      The trial court committed no error granting the motion for new trial, granting

a second motion for new trial conditioned upon the payment of fees and costs by

Appellant, and then whence Appellant made no effort in any manner to follow the


                                           6
order of the court, vacating the motion for new trial and reinstating the default

judgment. The court originally had personal jurisdiction over Appellant as

Appellant was properly served, or in the alternative gained personal jurisdiction

prior to the entry of the final judgment. The trial court committed no error.



                        ARGUMENT AND AUTHORITY

I. Standard of Review

      A trial court’s decision on a motion for new trial is reviewed under an abuse

of discretion standard. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). Trial

courts have been vested with broad discretion in ruling upon a motion for new trial

and “absent manifest abuse of discretion” the trial court’s actions should not be

disturbed on appeal. Equitable General Ins. Co. v. Yates, 684 S.W.2d 669, 670

(Tex. 1984).

      An abuse of discretion occurs only when the trial court’s decision is "so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law."

Johnson v. Fourth Ct. App., 700 S.W.2d 916, 917 (Tex. 1985), overruled on other

grounds by In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290

S.W.3d 204, 52 Tex. S.Ct. J. 1016 (Tex. 2009). The test for an abuse of discretion

is whether the trial court’s decision is arbitrary, unreasonable, and without



                                          7
reference to any guiding rules and principles. Mercedes-Benz Credit Corp. v.

Rhyne, 925 S.W.2d 664 (Tex. 1996).



II. Argument

A. Service was proper.

      1. Appellant can cite no case law determining that a retired sheriff’s deputy

is not covered under Rule 103 of the Texas Rules of Civil Procedure. Rule 103 lists

sheriffs or constables, however in practice the rule allows both actual sheriffs and

their deputies to serve citations. Here, the officer, Hector Olivarez, was a known,

retired sheriff’s deputy who routinely served citations in the county. (CR 50) The

trial court was itself unaware that Hector Olivarez’s ability to be a process server

in Uvalde County was questionable. (1 RR 3) Directly after the motion for new

trial was granted, and while the court retained plenary power, the trial court also

signed an order authorizing Mr. Olivarez as a process server for Uvalde County,

Texas.

      There is no requirement in Rule 103 that the sheriff or constable be an active

sheriff or constable in order to effectively service citation. The requirement of

strict compliance with the rules relating to the issuance of citation, the manner and

mode of service, and the return of process does not mandate "obeisance to the

minutest detail." Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.--Corpus

                                         8
Christi 1996, no writ) (citing Herbert v. Greater Gulf Coast Enter., 915 S.W.2d

866, 871 (Tex. App.--Houston [1 st Dist.] 1995, no writ)). As long as the citation

and return show, with reasonable certainty, that the citation was served on the

defendant in the suit, service of process will not be invalidated. Regalado v. State,

934 S.W.2d at 854.

       Appellant cites HB & WM, Inc. v. Smith putting forth that the basis for the

court’s reversal of a default judgment was that the record failed to show

affirmative compliance with Rule 103 when the private process server was not

authorized. Tex. R. Civ. P. 103. 802 S.W.2d 279 (Tex.App. —San Antonio 1990).

(Appellant’s Brief, Pg. 10) However, the case at bar is distinguishable and requires

a different result.

       HB & WM, Inc. regards a writ of error, now referred to as a restrictive

appeal. Id. In a restrictive appeal, defective service of process constitutes error

apparent on the face of the record, however the record is not so limited when a

default judgement is attacked by a motion for new trial in the trial court. Fid. &

Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573-74 (Tex.2006)

(discussing differences between restricted appeals and appeals from motions for

new trial or bills of review). On an appeal from a motion for new trial the parties

may introduce affidavits, depositions, testimony, and exhibits to explain what

happened. Id. at 574.


                                         9
      It is also important to note that this court in HB & WM, Inc. mentions the

lack of any evidence regarding the private process server authorization and the

limited evidence on the process server actual identity, and then goes on to discuss a

number of other issues with the return of service, including the fact that the time on

the return was an impossibility. HB & WM, Inc. at 281. Additionally, the party at

issue in HB & WM, Inc. filed an affidavit stating that not only had he never been

served, but that at the date and time on the return he was not physically present in

the city on the day the citation was allegedly served upon him. Id.

      The facts in the case at bar can be differentiated as the party testified he had

actual knowledge of the suit, was effectively served under rule 106 of the Texas

Rules of Civil Procedure, the private process server was a known, retired sheriff’s

deputy, and Appellant makes no objection to the rest of the return in this appeal.

(CR 41-42) (CR 30-32) (CR 55) (CR 29) This is in addition to the fact that the

manner of appeal is so different as to require a completely different analysis.

      2. The trial court’s Order granting the motion for substituted service

authorized Hector Olivarez to serve Appellant. The trial court’s order granting

substituted service allowed for “the officer” who was executing the citation to state

on the return the manner in which citation was executed. (CR 29) The Order

granting substituted service was based upon the affidavit of Mr. Olivarez and the

officer as stated in the Order clearly referred to Mr. Olivarez and allowed for Mr.

                                         10
Olivarez to effectively serve the citation by alternate means. Id. (CR 27-28) The

return of the citation was properly completed and verified by Mr. Olivarez. (CR

30-32) Rule 103 of the Texas Rules of Civil Procedure allows for service by

anyone authorized by written order of the court. The Order Granting Substituted

Service granted Mr. Olivarez the ability to properly serve Appellant. (CR 29)

      3. The trial court’s Order Granting New Trial was an affirmative

amendment of the return allowing Hector Olivarez to serve Appellant. In

Higginbothem v. General Life, the Supreme Court held that the trial court has

express authority under rule 118 of the Texas Rules of Civil Procedure to allow

amendment of the return to reflect the service that was actually had. Tex. R. Civ. P.

118. Higginbotham v. General Life and Acc. Ins. Co., 796 S.W.2d 695, 696-697

(Tex. 1990). In the case at bar, the trial court’s grant of a new trial to appellant was

granted on the sole basis of excusing defendant’s failure to appear for cause. (CR

55) The affidavit of Hector Olivarez supporting the motion for substituted service,

the return of the substituted service, and Appellant’s own admission establish that

Appellant had actual notice of the suit and that the citation by substituted service

was effective. (CR 27-28; 41-42) The Supreme Court in Higginbothem stated that

there was no reason to require the trial judge to sign a separate order labeled

“Order Granting Amendment of Return” when the record affirmatively shows

service of citation, and the trial court in a formal order found the service valid, as

                                          11
the order signed by the trial court was tantamount to an order amending the return.

Higginbothem at 697. See Dawson v. Briggs, 107 S.W.3d 739 (Tex.App.—Fort

Worth 2003).

      4. No Service was required after Appellant’s appearance to fight the Default

Judgment. Texas case law is well settled that after a defendant appears to attack the

default judgment he has “submitted himself to the jurisdiction of the district court

and no new service is necessary.” Garrels v. Wales Transp., Inc., 706 S.W.2d 757

(Tex.App. —Dallas 1986). Here, Appellant appeared and attacked the default

judgment and won the motion for new trial. At that point Appellant had acquiesced

to the jurisdiction of the trial court and any further argument regarding service was

moot. The trial court granted Appellant’s motion for new trial. (CR 55) Appellant

is only appealing the later judgment made by the court, not the original default

judgment.

      At the time the court entered the final appealable order Appellant had

entered his appearance. (SCR 3-4) There was never a special appearance filed,

Appellant was represented at each of the subsequent hearings held on the case,

Appellant filed multiple motions regarding the case and none were subject to any

special appearance or plea, and Appellant appeals from the final judgment in the

case made months after Appellant’s original appearance and the granting of a



                                         12
motion for new trial all establish the fact that the trial court had gained personal

jurisdiction over Appellant.

      Appellees believes it is important to note that after the grant of the original

motion for new trial Appellant made no effort to do anything in regard to the suit.

In fact, at no time did Appellant ever file an answer, even though no additional

service was necessary and the court had gained personal jurisdiction over him at

the time the motion for new trial was granted. When the motion to vacate and

reinstate was filed Appellant still had not filed an answer and fifty-six days had

passed since the motion for new trial was granted. At that time Appellee would

have been allowed to in essence take (another) default judgment against Appellant

based upon the court having gained personal jurisdiction over Appellant and no

answer being on file with the court.



B. The trial court was allowed to make the grant of the Motion for New Trial

conditional upon the payment of fees and costs.

      1. The trial court had personal jurisdiction over Appellant at the time the

motion for new trial was conditionally granted. The trial court first determined that

Appellant was entitled to a new trial and granted Appellant that second bite at the

apple. The trial court, after hearing and briefing by counsel for both parties,

ordered Appellant to pay fees and costs to Appellee within thirty days. (CR 55)

                                         13
However after more than fifty-six days Appellant had made no attempt to even

contact counsel for Appellee much less pay any sum of the ordered fees and costs.

(2 RR 4)

      At that time the court gave Appellant a third bite at the apple, by revising her

prior order and making the grant of new trial explicitly conditional upon payment

of fees and costs within an additional thirty days from the date the amount of fees

was determined by the court. (CR 83-85) Appellee’s counsel submitted all invoices

and billing to Appellant’s counsel, Appellant’s counsel objected and a hearing was

held to determine the final number. (CR 69-82; 68) (3 RR 1-13)

       During the hearing Appellant’s counsel stipulated to Appellee’s counsel’s

billing rate and experience, the court then made a final determination regarding the

amount of fees and costs ordered. (3 RR 6-12) Thereinafter, no attempt by

Appellant was ever made to pay any sum to Appellee. (SCR 3-4)

      As argued above, once a defendant has appeared to attack a default

judgment, service is no longer required and the court has obtained personal

jurisdiction over the defendant and it is not necessary to serve defendant. Garrels

706 S.W.2d 757. See also St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S.W.

75 (1918); Hale and Ana-Log, Inc. v. City of Tyler, 520 S.W.2d 819 (Tex.Civ.App.

Tyler 1975, no writ). A trial court maintains jurisdiction to reconsider a new trial

order as long as the case is still pending. In re Baylor Medical Center at Garland,


                                         14
28 S.W.3d 227 (Tex. 2008). Here, Appellant repeatedly appeared and subjected

himself to the trial court’s jurisdiction, additionally no special appearance was ever

filed. Thus the trial court had personal jurisdiction over the defendant when the

motion for new trial was conditionally granted upon the payment of Appellee’s

costs.

         2. A trial court may grant a motion for new trial conditionally upon specific

terms. Trial courts have great discretion in granting a motion for new trial. Specific

terms provided by the court will only be reviewed on an abuse of discretion

standard. Allied Rent-All, Inc. v. International Rental Ins., 764 S.W.2d 11

(Tex.App. —Houston [14 Dist.] 1988). See also TEX.R.CIV.P. 320; Grissom v.

Watson, 704 S.W.2d 325, 326 (Tex.1986); Equitable General Texas v Ins. Co. of.

Yates, 684 S.W.2d at 670; United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d

958, 959 (Tex.1976). Trial courts may condition a grant of new trial upon the

payment of attorney's fees, expenses for witnesses, travel and other costs incurred

in obtaining the default judgment. Allied Rent-All, Inc. v. International Rental, Ins.,

764 S.W.2d at 13. Equitable General Ins. Co. of Texas v. Yates, 684 S.W.2d at

671; United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d at 959. The case law

is definitive in its grant of broad authority to the district courts to make equitable

determinations regarding new trials. Appellant misconstrues case law as limiting

conditional grants of new trial to causes determined under the Craddock factors,

                                           15
but he provides no case law to support this contention. None of the case law

provided regarding equitable determinations on conditional grants of new trial

limits the court’s discretion to specific fact situations.

      In the case at bar, the trial court placed reasonable conditions on Appellant’s

new trial based upon the facts of the case as established through a number of

hearings. The trial court exercised its discretion in a limited function to provide an

equitable solution to the case, giving Appellant repeated options to have his case

re-started from its inception, none of which Appellant utilized.



                          CONCLUSION AND PRAYER

      For these reasons, Travis Bailey and Lisa Bailey, Appellees, requests that

this court affirm he trial court judgment.

                                                  Respectfully Submitted,


                                                  ___________________________
                                                  PAUL J. TARSKI
                                                  Attorney for Appellees
                                                  State Bar No. 19652525
                                                  205 N. Getty Street
                                                  Uvalde, Texas 78801
                                                  Ph: (830) 278-2544
                                                  Fax: (830) 278-7316




                                             16
                         CERTIFICATE OF SERVICE

      I certify that a true copy of this brief was served by electronic mail on April
14, 2015 on the following counsel of record:

      Mr. Rogelio M. Munoz
      231 South Getty Street
      Uvalde, Texas 78801
      roy@swtexaslaw.com
                                              ___________________________
                                              PAUL J. TARSKI




                                         17
                      CERTIFICATE OF COMPLIANCE

       I certify that, per Tex. R. App. 9.4, this brief: (1) contains 3,451 words
except for the exempted portions of Tex. R. App. 9.4(i)(1); and (2) has been
prepared in conventional typeface no smaller than 14-point for text and 12-point
for footnotes.

                                _________________________________
                                PAUL J. TARSKI




                                         18
                        APPENDIX

TAB 1   Standing Order Granting Hector P. Olivarez to Serve Process




                              19
TAB 1




  20
