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