ACCEPTED 03-14-00643-CV 4149937 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/13/2015 3:25:01 PM JEFFREY D. KYLE CLERK NO. 03-14-00643-CV ________________________________________________________________ FILED IN IN THE COURT OF APPEALS 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 2/13/2015 3:25:01 PM AUSTIN, TEXAS JEFFREY D. KYLE _________________________________________________________________ Clerk
MONTE MONTGOMERY, Appellant,
v.
MONTY HITCHCOCK, Appellee ____________________________________________________________________
On Appeal from the 250th Judicial District Court of Travis County, Texas Cause No. D-1-GN-14-000489 The Honorable Jon N. Wisser Presiding ______________________________________________________________
APPELLEE’S RESPONSE BRIEF
______________________________________________________________
Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
Attorney for Appellee
ORAL ARGUMENT REQUESTED
Appellee’s Response Brief – Page 1 REQUEST FOR ORAL ARGUMENT
Appellee requests oral argument. Because of the unique nature of the issues
presented in this case, oral argument will assist the court in reaching its decision.
Appellee’s Response Brief – Page 2 IDENTITY OF PARTIES AND COUNSEL
Appellant: Monte Montgomery
Appellant’s Counsel: Trial Counsel:
Adam R. Hardison Hardison Law Firm 5050 Quorum Drive Suite 700 Dallas, Texas 75254
Trial and Appellate Counsel:
Steven R. Samples Samples Law Group 2605 Airport Freeway Suite 100 Fort Worth, Texas 76111 srs@stevesamples.com
Appellee: Monty Hitchcock
Appellees’ Counsel: Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
Appellee’s Response Brief – Page 3 REFERENCE TO THE PARTIES
Appellee will refer to Appellant, Monte Montgomery as “Montgomery” in his
brief. He will refer to Appellee as “Hitchcock.”
REFERENCE TO THE RECORD
Reference Meaning
C.R. ___ Clerk’s Record at page ___
Appellee’s Response Brief – Page 4 TABLE OF CONTENTS
PAGE REQUEST FOR ORAL ARGUMENT…………………………………………………...2
IDENTITY OF PARTIES AND COUNSEL…………………………………….……….3
REFERENCE TO THE PARTIES ……………………………………………………….4
REFERENCE TO THE RECORD ……………………………………………………….4
TABLE OF CONTENTS……………………………………………………………..…...5
INDEX OF AUTHORITIES ……………………………………………………………...7
STATEMENT OF THE CASE ………………………………………………………….10
STATEMENT OF FACTS ……………………………………………………………...10
STANDARD OF REVIEW ……………………………………………………………..11
SUMMARY OF THE ARGUMENT …………………………………………………...12
ARGUMENT AND AUTHORITIES …………………………………………………...12
A. The minor discrepancies in the citation complained about by Montgomery are not sufficient to render service invalid………………………………………..13
B. Montgomery’s affidavit is insufficient to overcome the prima facie evidence of the officer’s return…………………………………………………………….17
C. Montgomery waived his appellate points by failing to secure a hearing on his motion for new trial…………………………………………………………...19
D. There is ample evidence in the record to support the court’s damage award...20
CONCLUSION ………………………………………………………………………….22
PRAYER ………………………………………………………………………………...22
Appellee’s Response Brief – Page 5 CERTIFICATE OF COMPLIANCE…………………………………………………….23
CERTIFICATE OF SERVICE ……………………………………………………….....24
Appellee’s Response Brief – Page 6 INDEX OF AUTHORITIES
CASES PAGE
Abcon Paving, Inc. v. Crissup, 820 S.W.2d 951, 953 (Tex. App.—Fort Worth 1991, no writ)………………………………………………………………………………............21
Blackburn v. Citibank, N.A., 2006 Tex. App. LEXIS 5062 (Tex. App.—Dallas 2006)…15
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002)………………………......11
Cervantes v. Cervantes, No. 03-07-00381-CV, 2009 Tex. App. LEXIS 8565 (Tex. App.—Austin 2009, no writ)…………………………………………………….............18
Conner v. W.C. Bowman Lumber Co., 45 S.W.2d 237, 239 (Tex. Civ. App.—Austin 1931, no writ)………………………………………………………………….................14
Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978)………………………………….........11
Fluty v. Simmons, 835 S.W.2d 664, 666 (Tex. App.—Dallas 1992)………………….....19
Garza v. Phil Watkins, P.C., No. 04-07-00848-CV, 2009 Tex. App. LEXIS 1588 (Tex. App.—San Antonio 2009, dismissed at 2010 Tex. App. LEXIS 9432)………………....16
Gatlin v. Dibrell, 74 Tex. 36 11 S.W. 908, 909 (1889)………………………….............18
Gruensteiner v. Cotulla I.S.D., No. 04-07-00847, 2008 WL 4595034 (Tex. App.—San Antonio Oct. 15, 2008, no pet.)…………………………………………………….........18
Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.—Dallas 1994, no writ)……….......21
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000)………………………......11
Limestone Constr. v. Summit Commer. Indus. Props., 143 S.W.3d 538 (Tex. App.— Austin 2004)........…...........................................................................................................20
Mobilevision Imaging Servs., L.L.C. v. Lifecare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2008, no pet.)………………………………..............................11
Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App.—Corpus Christi, 1996, writ denied)…………………………………………….............................15
Appellee’s Response Brief – Page 7 Payne & Keller Co. v. Word, 732 S.W.2d 38, 41 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.)……………………………………………………………………..........15
Popkowsi v. Gramza, 671 S.W.2d 915, 918 (Tex. App.--Houston [1st Dist.] 1984, no writ)………………………………………………………………………........................16
Pratt v. Moore, 746 S.W.2d 486 (Tex. App.—Dallas 1988, no writ)………………...…14
Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)…………………........17
Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (1950)…………………….......18
Shamrock Roofing Supply, Inc. v. Mercantile National Bank, 703 S.W.2d 356 (Tex. App.—Dallas 1985, no writ)……………………………………………..........................20
Simms v. Miears, 190 S.W. 544, 544 (Tex. Civ. App.—Austin 1916, no writ)………....14
Stovall v. Avalon Hair, No. 03-97-00259-CV, 1998 Tex. App. LEXIS 7591 (Tex. App.— Austin 1998, no writ)…………………………………………………………….............19
Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972)…………………………………..........17
Williams v. Williams, 150 S.W.3d 436, 443 (Tex. App.—Austin 2004, pet. denied)...…13
Wilson v. Dunn, 800 S.W.2d 833, 836, 34 Tex. Sup. Ct. J. 60 (Tex. 1990)……………..13
TEXAS RULES OF CIVIL PROCEDURE
Tex. R. Civ. P. 99(b)(8).....................................................................................................13
Tex. R. Civ. P. 324(b)........................................................................................................19
Appellee’s Response Brief – Page 8 NO. 03-14-00643-CV ________________________________________________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS _________________________________________________________________
MONTY HITCHCOCK, Appellee ____________________________________________________________________
On Appeal from the 250th Judicial District Court of Travis County, Texas Cause No. D-1-GN-14-000489 The Honorable Jon N. Wisser Presiding
______________________________________________________________
______________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellee, Monty Hitchcock, files this response brief requesting that this Court
affirm the Final Judgment, and would show as follows:
Appellee’s Response Brief – Page 9 STATEMENT OF THE CASE
This is a simple suit on a promissory note. Montgomery seeks to have the default
judgment taken against him reversed based on two inconsequential and minor matters in
the citation and return.
STATEMENT OF FACTS
Montgomery entered into a promissory note in the amount of $50,000.00 with
Hitchcock on May 31, 2010. [CR 4] Montgomery made some payments on the note in
2010, but made no payments after December 2010. [CR 4] Hitchcock gave Montgomery
notice of default under the note on January 13, 2014. [CR 4] Montgomery made no
payment in response to that notice. [CR 4]
Hitchcock filed suit against Montgomery in the 250th Judicial District of Travis
County, Texas on February 17, 2014. [CR 3-5] Jerry Melber, a Texas Supreme Court
certified private process server attempted to serve Montgomery on five occasions but was
unable to serve him personally. [CR 13] Hitchcock moved for substitute service on May
13, 2014 and Judge Lora Livingston granted the motion on May 14, 2014. [CR 11]
The Order for Substituted Service Upon Defendant, Monte Montgomery stated
that service upon Montgomery could be effected by one of the following methods: “(1)
Leaving a copy of the citation, with a copy of the petition attached, with anyone over
sixteen years of age at 4415 Cisco Valley Drive, Round Rock, Texas 78664; or (2) By
affixing a copy of the citation, with a copy of the petition attached, to the door of 4415
Appellee’s Response Brief – Page 10 Cisco Valley Drive, Round Rock, Texas 78664.” [CR 11] Mr. Melber complied with the
order by posting a copy of the citation and petition attached to the door of 4415 Cisco
Valley Drive, Round Rock, Texas on May 5, 2014. [CR 13]
Mr. Montgomery did not answer within the time required by law. Judge John
Wisser signed a final judgment in favor of Hitchcock and against Montgomery on July 9,
2014. [CR 17] Montgomery filed a motion for new trial on August 8, 2014. [CR 22]
There is no evidence in the record that he made any effort to set the motion for new trial
for hearing. Therefore, it was overruled by operation of law on September 22, 2014.
Montgomery filed his notice of appeal on October 7, 2014. [CR 60]
STANDARD OF REVIEW A trial court’s denial of a motion for new trial after a no-answer default is
reviewed for an abuse of discretion. Mobilevision Imaging Servs., L.L.C. v. Lifecare
Hosps. of N. Tex., L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2008, no pet.). A trial
court abuses its discretion if it acts arbitrarily and unreasonably or without regard to
guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).
An abuse of discretion does not occur with regard to factual matters as long as some
evidence reasonably supports the trial court’s decision. Butnaru v. Ford Motor Co., 84
S.W.3d 198, 211 (Tex. 2002). Nor does it occur when the trial court’s decision is based
on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).
Appellee’s Response Brief – Page 11 SUMMARY OF THE ARGUMENT As the following paragraphs establish, the trial court’s judgment should be
affirmed for the following reasons: (1) The minor discrepancies in the citation
complained about by Montgomery are not sufficient to render service invalid; (2)
Montgomery’s affidavit is insufficient to overcome the prima facie evidence of the
officer’s return; (3) Montgomery waived his appellate points by failing to secure a
hearing on his motion for new trial; and (4) There is ample evidence in the record to
support the court’s damage award.
ARGUMENTS AND AUTHORITIES Montgomery’s attempt to escape his failure to answer and the default judgment is
based on two minor discrepancies in the citation: (1) That the petition lists his address as
located in Travis County but the citation states that it is in Williamson County; and (2)
That the petition was filed on February 17, 2014 and the citation states it was filed on
February 18, 2014. These two minor discrepancies are not sufficient to render service
invalid and Montgomery waived his complaints by failing to attempt to obtain a hearing
on his motion for new trial.
Appellee’s Response Brief – Page 12 A. The minor discrepancies in the citation complained about by Montgomery are not sufficient to render service invalid.
As Montgomery argues, it is true that service of citation must be in strict
compliance with the rules of civil procedure to establish jurisdiction of a defendant and
support a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
However, “strict compliance with the rules does not require obeisance to the minutest
detail.” Williams v. Williams, 150 S.W.3d 436, 443 (Tex. App.—Austin 2004, pet.
denied). As long as the record as a whole, including the petition, citation, and return,
shows that the citation was served on the defendant in the suit, service of process will not
be invalidated. Id.
Montgomery’s complaint that the citation showed the county of his residence as
Williamson instead of Travis County ignores the fact that both documents accurately
stated his address as “4415 Cisco Valley Drive, Round Rock, Texas 78664.” [CR 3 and
14] It also ignores the fact that the order authorizing substitute service did not list the
county in the address. [CR 11]
Round Rock is a city that is partially in Travis County and partially in Williamson
County. http://www.landsoftexas.com/county-data-for-williamson-county-texas. There is
no evidence in the record that there is a “4415 Cisco Valley Drive, Round Rock, Texas
78664” in both Williamson County and Travis County. Therefore, there is no question as
to whether the citation was served at the correct address. The Texas Rules of Civil
Procedure do not require that the county be included in an address, only that the “citation
shall be directed to the defendant.” Tex. R. Civ. P. 99(b)(8). Because the citation was
Appellee’s Response Brief – Page 13 directed to the defendant, Monte Montgomery, at his undisputedly correct address,
service was valid and any discrepancy in the name of the county is immaterial.
This case is similar to Pratt v. Moore, 746 S.W.2d 486 (Tex. App.—Dallas 1988,
no writ). In Pratt, the defaulting appellant argument that service was invalid because the
return of citation stated that it was executed at 10001 Woodlake Drive, but neglected to
state the name of the city. Pratt, 746 S.W.2d at 487. The court held that there was no
requirement of an accurate address in the order for substitute service and that the absence
of the name of the city was not fatal to substitute service. Pratt, 746 S.W.2d at 488.
Montgomery cites two very old cases for the proposition that the incorrect date of
filing in the citation mandates reversal of the default judgment. Simms v. Miears, 190
S.W. 544, 544 (Tex. Civ. App.—Austin 1916, no writ); and Conner v. W.C. Bowman
Lumber Co., 45 S.W.2d 237, 239 (Tex. Civ. App.—Austin 1931, no writ). These cases
are not applicable for the following reasons.
The statement in the Conner case regarding the discrepancy between the date of
filing and the date set forth in the citation was dicta. Conner, 45 S.W.2d at 239. The
parties were in agreement that the appeal should be dismissed and the court obliged them.
Id.
In the Simms case the petition was filed on October 6, 1915, but the citation stated
it was filed on October 5, 2015. Simms, 190 S.W. at 544. The plaintiff argued that the
defect was technical and could not affect the rights of the parties. Id. But the court held
that because the citation showed an earlier date than the petition was actually filed, it
could affect the defendants’ belief as to whether they could bring a statute of limitations
Appellee’s Response Brief – Page 14 defense. Id. In the instant case, the citation states a date one day later than the date the
petition was actually filed. This minor discrepancy would not lead a party astray
regarding a potential statute of limitations defense and is thus truly a technical defect that
has no impact whatsoever on the rights of the parties.
The more modern approach is to analyze whether the alleged defect in the citation
has any bearing on the rights of the defendant and whether he was actually served. In the
Williams case, the citation did not include the name of the petitioner as required by Texas
Rule of Civil Procedure 99(b)(7). Williams v. Williams, 150 S.W.3d at 443. The court
stated that, “although our jurisprudence requires strict adherence to the rules regarding
service of citation, it does so to ensure that there is no questions about whether the proper
party has been served before a default judgment is rendered.” Williams, 150 S.W.3d at
444.
In Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608 (Tex. App.—
Corpus Christi, 1996, writ denied) the court of appeals refused to overturn a default
judgment despite discrepancies in the name of the defendant in the citation. “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.” Ortiz, 926 S.W.2d at 613. In Blackburn
v. Citibank, N.A., 2006 Tex. App. LEXIS 5062 (Tex. App.—Dallas 2006) the court of
appeals refused to reverse a default judgment despite the defendant “David Brian
Blackburn” being listed as “David B. Blackburn” in the citation. See also 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
Appellee’s Response Brief – Page 15 Petitfrere," the return reflected "Philipee Petitfreere"); Popkowsi v. Gramza, 671 S.W.2d
915, 918 (Tex. App.--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 Garza v. Phil Watkins, P.C., No. 04-07-00848-CV, 2009 Tex. App. LEXIS
1588 (Tex. App.—San Antonio 2009, dismissed at 2010 Tex. App. LEXIS 9432),
Watkins took a default judgment against Garza. Garza complained that he was never
served and offered his own affidavit and that of his wife in support of that claim. Garza at
p. 6. Garza claimed that, “the officer’s return, which recites that Garza was served at 1-
Mile North of Hwy 186 on County Rd 45 Raymondville, TX while Garza averred in his
affidavit that he lives at 2 Miles North Highway 186 on County Road 45, Raymondville,
Texas.” Id. The court found that most of Garza’s evidence was self-serving and
uncorroborated, except by his wife. Garza at p. 8. As a result, the court of appeals
refused to overturn the default judgment.
The discrepancies alleged by Montgomery are the type of “minute” detail that do
not require invalidation of the citation of service in this case. The record as a whole,
including the petition, citation, and return, shows that the citation was served on Mr.
Montgomery, so the service of process should not be invalidated and the judgment should
be affirmed.
Appellee’s Response Brief – Page 16 B. Montgomery’s affidavit is insufficient to overcome the prima facie evidence of the officer’s return
The order for substituted service stated, “The following methods will be
reasonably effective to give Defendant, Monte Montgomery, notice of the lawsuit. IT IS
ORDERED that service on Monte Montgomery be effected by one of the following
methods: (1) Leaving a copy of the citation, with a copy of the petition attached, with
anyone over sixteen years of age at 4415 Cisco Valley Drive, Round Rock, Texas 78664;
or (2) By affixing a copy of the citation, with a copy of the petition attached, to the door
of 4415 Cisco Valley Drive, Round Rock, Texas 78664.” [CR 11] The return of citation
evidences strict compliance with the court’s order. It states that the citation was executed
at 4415 Cisco Valley Drive, Round Rock, Texas 78664 “By delivering to Monte
Montgomery . . . by posting to the door.” CR 14. The only evidence that service of
citation was not accomplished in strict compliance with the court’s order is Mr.
Montgomery’s uncorroborated statement in his declaration that, “I was never served with
the lawsuit. If a copy of the lawsuit was posted to the door of my home I did not received
it.” CR 50.
An officer’s return “has long been considered prima facie evidence of the facts
recited therein.” Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). The
return imports absolute verity and its recitations “carry so much weight that they cannot
be rebutted by the uncorroborated proof of the moving party.” Id. (citing Ward v. Nava,
Appellee’s Response Brief – Page 17 488 S.W.2d 736, 738 (Tex. 1972); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206,
209 (1950); Gatlin v. Dibrell, 74 Tex. 36 11 S.W. 908, 909 (1889).
In Cervantes v. Cervantes, No. 03-07-00381-CV, 2009 Tex. App. LEXIS 8565
(Tex. App.—Austin 2009, no writ), this court held that a trial court had not abused its
discretion in denying a motion for new trial despite the defendants’ affidavits stating that
they had not been served1. The two defendants each submitted affidavits attached to their
motion for new trial that they had not been served with the citation. Cervantes at p. 14.
This court held that, “Because appellants’ proof is uncorroborated, it is insufficient to
rebut the recitation in the return that the sheriff’s deputy delivered it to the “within
named.” Thus the trial court did not abuse its discretion in denying appellants’ motion
for new trial on this basis.” Cervantes at p. 16. See also Gruensteiner v. Cotulla I.S.D.,
No. 04-07-00847, 2008 WL 4595034 (Tex. App.—San Antonio Oct. 15, 2008, no
pet.)(uncorroborated statement that defendant was not served was insufficient to rebut
recitations of service in return).
Because the record demonstrates strict compliance with the court’s order regarding
substitute service, and because the only evidence to the contrary is Mr. Montgomery’s
uncorroborated and conclusory statement, the trial court did not abuse its discretion in
denying the motion for new trial by operation of law.
1 This court did reverse the default judgment and remand the case to the trial court, but on other grounds. Cervantes at p. 30.
Appellee’s Response Brief – Page 18 C. Montgomery waived his appellate points by failing to secure a hearing on his motion for new trial
There is no evidence in the record that Montgomery attempted to secure a hearing
on his motion for new trial. A motion for new trial is addressed to the trial court’s
discretion. Fluty v. Simmons, 835 S.W.2d 664, 666 (Tex. App.—Dallas 1992). The
court’s ruling on the motion will not be disturbed on appeal in the absence of a showing
of an abuse of discretion. Id. A motion for new trial to set aside a default judgment is a
complaint on which evidence must be heard Tex. R. Civ. P. 324(b). Id. Additionally, the
mere filing and overruling by operation of law of a motion for new trial preserves for
appellate review a complaint properly made in the motion only if taking evidence is not
necessary to properly present the complaint in the trial court. Tex. R. App. P. 33.1(b);
Stovall v. Avalon Hair, No. 03-97-00259-CV, 1998 Tex. App. LEXIS 7591 (Tex. App.—
Austin 1998, no writ) at p. 8.
Texas courts have held on multiple occasions that a defendant’s failure to attempt
to secure a hearing on a motion for new trial amounts to a waiver of the complaint. In
Fluty v. Simmons, Simmons Company took a default judgment against Fluty. Fluty
appealed and the court of appeals affirmed. In holding that Fluty had waived his
argument by failing to obtain a hearing on his motion for new trial, the court of appeals
stated Appellant should have given the trial court the opportunity to exercise its
discretion by seeing that his motion for new trial was set for a hearing. By failing to
Appellee’s Response Brief – Page 19 bring his motion for new trial to the trial court’s attention and allowing the motion to be
overruled by operation of law, we cannot say that an abuse of discretion has occurred
which would warrant a reversal. Fluty, 835 S.W.2d at 668. There is no abuse of
discretion in the overruling of a motion for new trial by operation of law where the record
fails to show any attempt to obtain a timely hearing. Id.
The same result was reached in Shamrock Roofing Supply, Inc. v. Mercantile
National Bank, 703 S.W.2d 356 (Tex. App.—Dallas 1985, no writ). The court in
Shamrock held that in applying the Craddock and Strackbein standard, when a motion for
new trial requires the exercise of discretion, the trial judge must have the opportunity to
exercise that discretion before the court of appeals can hold that there is an abuse of
discretion. No abuse of discretion occurs when the defaulting defendant fails to call his
motion to the judge’s attention and allows the motion to be overruled by operation of law.
Shamrock, 703 S.W.2d at 357-358.2
D. There is ample evidence in the record to support the court’s damage award3
Montgomery argues that the amount of damages set forth in the judgment is not
supported by evidence. To the contrary, Monty Hitchcock’s affidavit, filed in support of
his default judgment on July 9, 2014, the same day as the judgment was signed, sets forth
2 But See Limestone Constr. v. Summit Commer. Indus. Props., 143 S.W.3d 538 (Tex. App.—Austin 2004). In Limestone, this court of appeals held that a trial court did abuse its discretion in allowing a motion for new trial to be overruled by operation of law. However, the Limestone case was in the context of a defendant’s failure to receive notice of a hearing on motion for summary judgment not in the context of a no answer default judgment in which the recitations of the citation are not overcome by mere uncorroborated statements of the defendant. Therefore, Montgomery’s failure to obtain a hearing on his motion for new trial is fatal to his Craddock assertions. 3 It is Hitchcock’s position that Montgomery has waived this argument as well by failing to set his motion for new trial for hearing.
Appellee’s Response Brief – Page 20 in detail the existence of the promissory note, the amount of payments and dates of
payments made by Mr. Montgomery, the interest rate and the calculation of the amount
due under the note by the date of the default judgment.
Montgomery cites Abcon Paving, Inc. v. Crissup, 820 S.W.2d 951, 953 (Tex.
App.—Fort Worth 1991, no writ) for the proposition that the written instrument upon
which a case is based must be attached to the petition in a case of liquidated damages.
But the Abcon Paving case is not applicable, because Mr. Hitchcock’s claim is for
unliquidated damages because Mr. Montgomery did make payments on the note. The
affidavit of Mr. Montgomery sets out the amount of the note, the payments made and
total due in great detail and is sufficient evidence of the damages awarded by the trial
court.
Montgomery also cites Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.—
Dallas 1994, no writ) for the proposition that there was no evidence before the trial court
regarding Mr. Hitchcock’s damages. But the plaintiff in Jones was claiming liquidated
damages, which the court of appeals disagreed with. There is also no indication that the
affidavit referred to by the plaintiff’s counsel in Jones bore any relation to the amount of
damages awarded by the trial court. Conversely, in the instant case, the affidavit filed by
Hitchcock on the day of the default judgment recites the exact amount of damages
awarded by the trial court, $59,357.63.
Appellee’s Response Brief – Page 21 CONCLUSION
Because the minor discrepancies complained about by Montgomery do not require
invalidation of the service of citation in this case, and for the other reasons set forth in
this brief, the default judgment entered by the trial court should be affirmed.
PRAYER
FOR THE FOREGOING REASONS, Appellee prays that this Court affirm the
trial court’s judgment.
Respectfully submitted,
__/s/ Jon Smith________________ Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
Appellee’s Response Brief – Page 22 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), to the extent applicable, I certify that this brief contains 3,239 words.
__/s/ Jon Smith________________ Jon Michael Smith
Appellee’s Response Brief – Page 23 CERTIFICATE OF SERVICE
I, Jon Michael Smith, do hereby certify that a true and correct copy of the foregoing document was delivered to all attorneys of record as listed below via fax on February 13, 2015.
Steven R. Samples Via Fax: 855-605-1505 2605 Airport Freeway, Suite 100 Fort Worth, Texas 76111
Appellee’s Response Brief – Page 24