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 Te x as 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
O RAL A RGUMENT R EQUESTED ACCEPTED 03-14-00341-CV 4318628 THIRD COURT OF APPEALS

AUSTIN, TEXAS 2/27/2015 3:39:00 PM JEFFREY D. KYLE

CLERKii T ABLE OF C ONTENTS Page Index of Au thorities .......................................... ....................................................... iii Introduction ..................................................

.............................................................. 1 Argument....................................................... ............................................................. 3 I. The Nabholz Affidavit Was Pr operly before the Court and Cont ained Admissible Evidence Sufficient to Warrant Setting Aside the Def ault Judgmen t ...................................................... .................................................... 3 A. The Nabholz Affidavit Was File d 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 2 1 Hearing ....................................................... ........................................... 4 C. The Nabholz Affidavit Provide d Abundant Evidence Questioning the Validity of Torres’s Claim that Service Occurred and Demonstrat ed 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 o f the Affidavit ..................................................... ........................................... 8 II. Richardson Satisfies Each of the Three Craddock Factors and Is Entitled to Have the Default J udgment Set Aside ........................... .................................. 9 Conclusion a nd Prayer ......................................... .................................................... 11 Certificate of Service ........................................ ....................................................... 13 Certificate of C ompliance ..................................... ................................................... 13iii I NDEX OF A UTHORITIES 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 (T ex. 1992) ..................................... .................................. 9, 11 Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124 (T ex. 1939) .................................... ............................. 2, 9, 11 Smith v. Holmes, 53 S.W.3d 815 (Tex. App.—A ustin 2001, no writ) ................ .................... 7, 8
Rules Texas Rules of E vidence 803(25) ............................... ............................................... 61 I NTRODUCTION Appellant James J. Richardson, IV, files this reply brief in su pport of his appeal in order to clarify the record and rebut the erroneous s tatements set forth in Appellee’s Brief concerning the underlying facts and the equiti es at issue in this case. Torres’s main argument re sts 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, th e Nabholz Affidavit was properly before the trial court at the hearing, and Richard son has now, for a second time, requested a supplement to the record to correct th e Travis County Clerk’s filing error so the record on appeal is accurate and co mplete. Despite the (now-corrected) clerical error, Torres is well aware that the a ffidavit was adduced at the hearing because it is mentioned no fewe r than 18 times in t he hearing transcript. Importantly, even if certain statements in the Nabholz Affidavi t were potentially objectionable, they were not properly objected to nor ordered s tricken 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 cour t was presented with, at minim um, a record demonstrating that the service affidavit was of questionable ve racity. The day before the service affidavit was purpo rtedly filed, Richardson’s couns el informed Torres’s counsel that Richardson had not been served . The fact that the Travis County Clerk2 did not file Richardson’s complete submission on March 13 highl ights the other docketing issue in this case; namely, four days before the defa ult judgment was surreptitiously taken by Torres, the trial court docket reflect ed only that an alias summons had been issued, not that a service affidav it had been filed purporting to document personal service m ade two months earlier

. Essentially conceding that this is an obvious case meriting equ itable 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 th at 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 tri al on the merits; both law and equity demand reversal.3 A RGUMENT I. The Nabholz Affidavit Was Properly before the Court and Cont ained Admissible Evidence Sufficient to Warrant Setting Aside the Def ault Judgment Torres’s arguments concerning the Nabholz Affidavit fail for s everal reasons: First, the Nabholz Affidavit was attached to and timely filed w ith the Motion; second, the Nabholz Affidavit c ontains ample evidence supportin g the fact that Richardson was not served and, at a minimum, his failure to ans wer was unintentional; and third, any objection to the admissibility of the Nabholz Affidavit was waived by Torres as she faile d to obtain any ruling from th e 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 Nabhol z 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 dat ed February 12, 2014), Exhibit B-5 (Letter to Jesus T irrez 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 tr ial court docket4 inexplicably reflects the Moti on as having been filed without t he affidavit or any of the six supporting exhibits. In order to correct this error and give this Court a full and c omplete 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 ServeX press as a single filing “Enve lope” to the Travis County Clerk for filing on March 13, 2014. However, for unknow n reasons, the County Clerk docketed only a porti on of Richardson’s filing (ak a 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 Cle rk constitutes grounds for affirming an improperly granted default judgment.
B. The Nabholz Affidavit Was Discu ssed at Length at the March 21 Hearing Further, despite the Clerk’s e rror in failing to properly docke t the supporting affidavit and exhibits, those documents were before the Court a t 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 supplem ent the record with these materials but, instead, the clerk supplemented the record only with other case materials. The record supplemen tation should be complete withi n 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 nec essary to, if appropriate, strike statements from that affidavit.
C. The Nabholz Affidavit Provided Abundant Evidence Questioning the Validity of Torres’s Claim that Se rvice Occurred and Demonstrated that Richardson’s Failure to Answer Was Unintentional At the hearing, Torres made only general objections to the test imony in the Nabholz Affidavit, essentially imp lying 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 ch allenge. 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 tri al 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 tw o-fold approach – regularly contacting Appellant directly and , even more frequently, consistently

2 As explained above, the March 13, 2014 Nabholz Affidavit will b e included in the supplementation being prepared by the lower court clerk. The s ame language appears in the later April 11, 2014 Nabholz Affidavit that is a lready 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 le ast 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 sa me time, I was in frequent co ntact with Richardson to determine whether he had received service of process. My calls and/or emails to Richardson occurred approxi mately 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 electro nic docket system and checking with R ichardson did I ever receive a ny information which indicated that Richardson had been served in this case.” CR at 21. Nabholz’s testimony that he repeatedly contacted Richardson sho uld not be dismissed as evidence. Nabholz was taking precautions to avoid an inadvertent default. He would not have needed to continue his routine dock et checks as late as February 24 or March 3, 2014, ha d he had any information sugges ting Richardson had been served. Thus, his affi davit does not restate hearsay testimony from Richardson; to the contrary, it merely states the obvious, Nabh olz lacked any knowledge or evidence of service and, therefore, did not know t hat Torres could or would secretly obtain a default judgment. 3 Even if Nabholz’s affidavit testimony that he repeatedly contacted Ric hardson is disregarded, althoug h 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 systema tic and regular course of action over a fourmonth period that Appellee failed to controvert before the lowe r court should be sufficient to establish the neces sary level of trustworthiness to satisfy the requirements of Texas R ule of Evidence 803(25).7 answer as of Monday, February 24, 2014, just four days before T orres secretly obtained her default judgment: 6. “When I checked the Court’s electronic docket system on or about February 24, 2014, the system re vealed that an Alias Citation h ad 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 Februa ry 24, 2014, the trial court doc ket 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 t he time of the March 21 hearing. Under well-established case law, a trial court faced with a mot ion 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 controv erting 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 s erver providing live testimony that he actually did tra vel 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; t hus, the motion should have be en granted. See Smith, 53 S.W.3d at 818. Faced with suc h a record, it was an abuse of discretion to not set asi de the default judgment.
D. Torres Failed to Make Specific Obje ctions to the Nabholz Affidavit and Failed to Obtain a Ruling Striking Any Portions of the Affidavit Importantly, despite raising gene ralized 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 h earing. Torres made only two generalized objections. SR at 5 (“And I’m going to ob ject to his affidavit based on hearsay.”), 12 (“Again, Your Honor, I’m going to objec t to hearsay.”). But, more is required to strike swor n affidavit testimony; however, Torres failed to go through the well-established, sta te-court procedure of identify ing which statements in the affidavit Torres deemed objectionable, arguing their all eged inadmissibility, affording Richardson an opportunity to rebut and argue their ad missibility, and then obtaining a ruling from the court specifying which statements a re inadmissible. While the trial court and Torres make generalized statements ab out 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 devo id of any evidentiary ruling striking any portions of the Nabholz Affidav it. 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. Th ere 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 fai led 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 ent itlement to equitable relief. In fact, Torre s does not deny that (i) Richa rdson has meritorious defenses he could have asserte d had he been afforded the opport unity, and (ii) granting Richardson equitable relief will occasion no injury to Torres. See Craddock, 133 S.W.2d at 126; see also Bank One T ex., N.A. v. Moody, 830 S.W.2d 81 at 83. Thus, Torres concedes that Richardson can satisfy tw o of the three
Craddock factors. Brief of Appellees at 19-22. As to the remaining factor, Torres does attempt to argue that R ichardson’s failure to answer was intentional or the result of conscious in difference, but she does so by resorting to a fundamental mischaracterization of Richard son’s position. Torres claims that Richardson’s failure to answer was based, no t on the fact that he was not served, but solely on the fact that he did not know Tor res had informed the trial court of service. Brief o f Appellees at 20 (mischaracter izing Richardson’s10 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 t hat 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 counse l were unaware that the process server c laimed to have served Richards on two months earlier. Torres knew because Richardson’s counsel wrote to Tor res’s counsel on February 12, 2014 – the day befo re the service affidavit was su pposedly 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 l etter 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 cou nsel stating unequivocally that service had not occurred – and, thus, the se rvice affidavit’s validity was at issue. 6 The absence of a purposeful or bad faith failure to answer is t he controlling

5 This letter was attached as Exhi bit 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 exped itiously, move to a trial on the merits.
C ONCLUSION AND P RAYER For the foregoing reasons, Richardson respectfully requests tha t this Court reverse the trial court’s denial of his Motion to Set Aside Def ault Judgment, and remand this case to the trial court for further proceedings. S etting aside the legal arguments and obvious material questions of fact at issue, equi ty, not to mention basic concepts of fair play and professionalism, clearly demand s 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 sh e concealed her efforts to ob tain a default judgment despite knowing that Ric hardson was represented by cou nsel, was actively interacting with Richardson’s counsel for months to settle othe r claims related to the accident at issue in this case

. She should not be rewarded for her duplicity.12 Respectfully submitted , K ING L AW G ROUP , P LLC
/ 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 Te x as 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, IV13 C ERTIFICATE O F S ERVICE On February 27, 2014, in compliance with Texas Rule of Appellat e Procedure 9.5, I served this document on the following counsel of record by e-service, e-mail, facsimile, or mail to: Jesus Tirrez J ESUS T IRREZ & A SSOCIATES 1301 South IH-35, Suite 307 Austin, Texas 78741 (512) 326-1330 Telephone (512) 275-0075 Fax Beth Watkins Shannon K. Dunn L AW O FFICE OF B ETH W ATKINS 926 Chulie Drive San Antonio, Texas 78216 (210) 225-6666 Telephone (210) 225-2300 Fax /s/ Mary Ellen King Mary Ellen King
C ERTIFICATE OF C OMPLIANCE This document complies with the t ypeface requirements of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in a co nventional 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 app licable, because it contains 2,699 words, excluding a ny parts exempted by Rule 9.4( i)(1). /s/ Mary Ellen King Mary Ellen King