No. 03-14-00341-CV 

In the Third Court of Appeals 

James Richardson 

Appellant 

v. 

Maria Torres, Individually and as 

Next Friend of John Marmolejo Torres, 

Daniela Tejeda, and Isabella 

Gonzales, Minors 

Appellees

Appeal from Cause No. C-1-CV-13-009448 

County Court No. 2, Travis County, Texas 

Hon. David Phillips 

APPELLANT’S REPLY BRIEF 

KING LAW GROUP, PLLC 

Mary Ellen King 

Texas State Bar No. 24067219 

meking@kinglitigationgroup.com 

Richard C. King Jr.

Texas State Bar No. 24007491 

rking@kinglitigationgroup.com 

W. James Nabholz, III

Texas State Bar No. 24042677 

jnabholz@kinglitigationgroup.com

28515 Ranch Road 12

Dripping Springs, Texas 78620

512.263.8212 (phone)

512.900.2918 (fax) 

Counsel for Appellant James J. Richardson, IV 

ORAL ARGUMENT REQUESTED

ACCEPTED

03-14-00341-CV

4318628

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/27/2015 3:39:00 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/27/2015 3:39:00 PM JEFFREY D. KYLE Clerk
ii

TABLE OF CONTENTS

 Page

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

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

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

I. The Nabholz Affidavit Was Properly before the Court and Contained 

Admissible Evidence Sufficient to Warrant Setting Aside the Default 

Judgment .......................................................................................................... 3 

A. The Nabholz Affidavit Was Filed as an Exhibit to the Motion to Set 

Aside Default Judgment and for Sanctions ........................................... 3 

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

Hearing .................................................................................................. 4 

C. The Nabholz Affidavit Provided Abundant Evidence Questioning the 

Validity of Torres’s Claim that Service Occurred and Demonstrated 

that Richardson’s Failure to Answer was Unintentional ...................... 5 

D. Torres Failed to Make Specific Objections to the Nabholz 

Affidavit and Failed to Obtain a Ruling Striking Any Portions of the 

Affidavit ................................................................................................ 8 

II. Richardson Satisfies Each of the Three Craddock Factors and Is Entitled to 

Have the Default Judgment Set Aside ............................................................. 9 

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

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

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

 
iii

INDEX OF AUTHORITIES

Cases Page(s) 

Averitt v. Bruton Paint & Floor Co.,

773 S.W.2d 574 (Tex. App.—Dallas 1989, no writ) ....................................... 7 

Bank One Tex., N.A. v. Moody, 

830 S.W.2d 81 (Tex. 1992) ....................................................................... 9, 11 

Craddock v. Sunshine Bus Lines Inc., 

133 S.W.2d 124 (Tex. 1939) ................................................................. 2, 9, 11 

Smith v. Holmes, 

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

Rules

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

 
1 

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

counsel that Richardson had not been served. The fact that the Travis County Clerk 
2

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

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

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

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

document personal service made two months earlier. 

Essentially conceding that this is an obvious case meriting equitable reversal 

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

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

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

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

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

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

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

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

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

law and equity demand reversal. 
3

ARGUMENT

I. The Nabholz Affidavit Was Properly before the Court and Contained 

Admissible Evidence Sufficient to Warrant Setting Aside the Default 

Judgment

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

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

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

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

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

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

specific testimony in the affidavit. 

A. The Nabholz Affidavit Was Filed as an Exhibit to the Motion to Set 

Aside Default Judgment and for Sanctions

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

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

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

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

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

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

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

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

Travis County Clerk’s processing of Richardson’s filing, the trial court docket 
4

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

the six supporting exhibits. 

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

File and ServeXpress has provided a business records affidavit providing sworn 

evidence that the affidavit and supporting exhibits accompanied the Motion and 

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

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

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

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

these materials to correct this error.1

 Richardson respectfully requests that the Court 

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

for affirming an improperly granted default judgment. 

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

Hearing

Further, despite the Clerk’s error in failing to properly docket the supporting 

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

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

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

                                                            

1

 Appellant previously asked the Travis County Clerk to supplement the record with 

these materials but, instead, the clerk supplemented the record only with other case 

materials. The record supplementation should be complete within seven days. 
5

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

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

appropriate, strike statements from that affidavit.

C. The Nabholz Affidavit Provided Abundant Evidence Questioning the 

Validity of Torres’s Claim that Service Occurred and Demonstrated 

that Richardson’s Failure to Answer Was Unintentional

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

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

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

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

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

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

settle multiple claims arising from the same accident.2

 In fact, Nabholz testified that 

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

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

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

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

regularly contacting Appellant directly and, even more frequently, consistently 

                                                            

2

  As explained above, the March 13, 2014 Nabholz Affidavit will be included in the 

supplementation being prepared by the lower court clerk. The same language 

appears in the later April 11, 2014 Nabholz Affidavit that is already in the record. 

CR at 20-24. References herein will be to the later affidavit because the new 

supplement has not been completed.
6

monitoring the trial court docket: 

5. “Beginning with my review of the Court’s electronic docket system 

on November 5, 2013, I began to review that docket system at least 

once per week to monitor the status of service on Richardson. I 

reviewed the docket system weekly from November 5, 2013 through

March 4, 2014. Throughout this same time, I was in frequent contact 

with Richardson to determine whether he had received service of

process. My calls and/or emails to Richardson occurred approximately 

every two (2) to three (3) weeks. At no time during the four (4) month 

period I was monitoring the service through the Court’s electronic 

docket system and checking with Richardson did I ever receive any 

information which indicated that Richardson had been served in this 

case.” CR at 21. 

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

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

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

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

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

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

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

would secretly obtain a default judgment.3

 Even if Nabholz’s affidavit testimony 

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

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

                                                            

3

 At a minimum, Nabholz’s systematic and regular course of action over a fourmonth period that Appellee failed to controvert before the lower court should be 

sufficient to establish the necessary level of trustworthiness to satisfy the 

requirements of Texas Rule of Evidence 803(25).
7

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

obtained her default judgment: 

6. “When I checked the Court’s electronic docket system on or about 

February 24, 2014, the system revealed that an Alias Citation had been 

issued for James Richardson on February 13, 2014.” CR at 21. 

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

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

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

alias citation had been issued for Richardson on that date.4

 Thus, at a minimum, the 

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

hearing. 

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

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

opponent requests an evidentiary hearing and introduces controverting evidence. 

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

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

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

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

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

                                                            

4

 Again, while Appellee may attempt to turn a blind eye to the docketing issues 

caused by the clerk in this case, the Nabholz Affidavit clearly raised the issue of a 

second docketing error. 
8

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

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

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

discretion to not set aside the default judgment. 

D. Torres Failed to Make Specific Objections to the Nabholz Affidavit 

and Failed to Obtain a Ruling Striking Any Portions of the Affidavit

Importantly, despite raising generalized hearsay objections to the Nabholz 

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

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

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

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

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

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

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

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

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

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

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

hearing. 

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

evidentiary ruling striking any portions of the Nabholz Affidavit. CR at 91. Instead, 
9

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

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

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

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

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

at the lower court.

II. Richardson Satisfies Each of the Three Craddock Factors and Is Entitled 

to Have the Default Judgment Set Aside

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

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

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

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

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

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

Craddock factors. Brief of Appellees at 19-22. 

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

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

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

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

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

trial court of service. Brief of Appellees at 20 (mischaracterizing Richardson’s 
10

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

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

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

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

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

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

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

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

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

 Torres 

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

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

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

served Richardson two months earlier and Richardson and his counsel stating 

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

validity was at issue.6

 

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

                                                            

5

  This letter was attached as Exhibit B-4 to the March 13 Nabholz Affidavit, which 

is being supplemented. 

6

 Torres raised no objection to the February correspondence at the March 21 hearing. 
11

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

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

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

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

trial on the merits. 

CONCLUSION AND PRAYER

For the foregoing reasons, Richardson respectfully requests that this Court 

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

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

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

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

returned to the lower court for resolution on the merits. 

                                                            

7

 Here, the only party acting in bad faith was Torres. Interestingly, she does not, 

because she cannot, explain why she concealed her efforts to obtain a default 

judgment despite knowing that Richardson was represented by counsel, was actively 

interacting with Richardson’s counsel for months to settle other claims related to the 

accident at issue in this case. She should not be rewarded for her duplicity. 
12

Respectfully submitted,

KING LAW GROUP, PLLC

 /s/ Mary Ellen King 

Mary Ellen King 

Texas Bar No. 24067219 

meking@kinglitigationgroup.com 

Richard C. King Jr.

Texas State Bar No. 24007491 

rking@kinglitigationgroup.com 

W. James Nabholz, III

Texas State Bar No. 24042677

jnabholz@kinglitigationgroup.com 

28515 Ranch Road 12

Dripping Springs, Texas 78620

512.263.8212 (phone)

512.900.2918 (fax) 

Attorneys for Appellant James J. 

Richardson, IV 

 
13

CERTIFICATE OF SERVICE

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

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

facsimile, or mail to: 

Jesus Tirrez 

JESUS TIRREZ & ASSOCIATES

1301 South IH-35, Suite 307 

Austin, Texas 78741 

(512) 326-1330 Telephone 

(512) 275-0075 Fax 

Beth Watkins 

Shannon K. Dunn 

LAW OFFICE OF BETH WATKINS

926 Chulie Drive 

San Antonio, Texas 78216 

(210) 225-6666 Telephone 

(210) 225-2300 Fax 

 /s/ Mary Ellen King 

 Mary Ellen King 

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Texas Rule of 

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

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

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

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

 /s/ Mary Ellen King 

 Mary Ellen King