Appellee’s Response Brief – Page 1

NO. 03-14-00643-CV

________________________________________________________________

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

_________________________________________________________________

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

ACCEPTED

03-14-00643-CV

4149937

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/13/2015 3:25:01 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/13/2015 3:25:01 PM JEFFREY D. KYLE Clerk
Appellee’s Response Brief – Page 2

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 3

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 4

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 5

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 6

CERTIFICATE OF COMPLIANCE.............................................................23

CERTIFICATE OF SERVICE ....................................................................24
Appellee’s Response Brief – Page 7

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 8

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 9

NO. 03-14-00643-CV

________________________________________________________________

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

_________________________________________________________________

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

______________________________________________________________

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 10

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 11

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 12

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 13

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 14

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 15

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 16

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 17

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 18

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 19

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 20

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 21

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 22

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

ATTORNEY FOR APPELLEE
Appellee’s Response Brief – Page 23

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 24

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

__/s/ Jon Smith________________

Jon Michael Smith