No.04-15-00036-CV

IN THE FOURTH COURT OF APPEALS AT 

SAN ANTONIO

______________________________________________________________ 

DAVID WAYNE THOMPSON Appellant,

vs.

TRAVIS BAILEY AND LISA BAILEY, Appellees

____________________________________________

On Appeal from the 38th Judicial District of Uvalde County, Texas

(Trial Court Cause No. 2013-07-29422-CV)

______________________________________________________________________________________ 

APPELLEES BRIEF

_______________________________________________________________________________________ 

Paul J. Tarski 

State Bar No. 19652525 

Email: paul@tarskilaw.com

205 North Getty Street 

Uvalde, TX 78801 

Tel:(830) 278 - 2544 

Tel:(830) 278 - 7316 

Counsel for Appellees

ORAL ARGUMENT IS REQUESTED

ACCEPTED

04-15-00036-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/14/2015 8:31:54 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/14/2015 8:31:54 AM KEITH E. HOTTLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

In compliance with Tex. R. App. P. 38.1(a), Appellant provides the 

following list of the parties to the trial court at issue, and the names and addresses 

of the trial and appellate counsel for the parties:

Appellees: Travis Bailey and Lisa Bailey

Represented by: Paul J. Tarski (Trial and Appellate Counsel) 

State Bar No. 19652525

Email: paul@tarskilaw.com

Alexandra T. Wegrzyn

State Bar No. 24076765

Email: alexandra@tarskilaw.com

Law Offices of Paul J. Tarski

205 N. Getty St. 

Uvalde, TX 78801

Tel:(830) 278 - 2544

Tel:(830) 278 - 7316

Appellant: David Wayne Thompson

Represented by: Rogelio M. Munoz (Trial and Appellate Counsel) 

State Bar No. 24044409

Email: roy@swtexaslaw.com

The Munoz Law Firm

231 S. Getty St. 

Uvalde, TX 78801

Tel:(830) 278 - 1150

Tel:(830) 278 - 1559
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................ ii

TABLE OF CONTENTS........................................................................................ iii

INDEX OF AUTHORITIES................................................................................... iv

REFERENCE CITATION GUIDE ........................................................................ vi

STATEMENT OF THE CASE.................................................................................1

STATEMENT REGARDING ORAL ARGUMENT ..............................................2

ISSUES PRESENTED..............................................................................................2

1. Did the trial court commit reversible error by reinstating the default judgment. 

STATEMENT OF THE FACTS .............................................................................2

SUMMARY OF THE ARGUMENT .......................................................................6

ARGUMENT AND AUTHORITY ..........................................................................7

I. Standard of Review .............................................................................................7

II. Argument ............................................................................................................7

CONCLUSION AND PRAYER ............................................................................16

CERTIFICATE OF SERVICE ...............................................................................17

CERTIFICATE OF COMPLIANCE ......................................................................18
iv

INDEX OF AUTHORITIES 

Strackbein v. Prewitt, 

671 S.W.2d 37, 38 (Tex. 1984). .................................................................. 7 

Equitable General Ins. Co. v. Yates, 

684 S.W.2d 669, 670 (Tex. 1984). ........................................................ 7, 14 

Johnson v. Fourth Ct. App., 

700 S.W.2d 916, 917 (Tex. 1985) ................................................................ 7 

Mercedes-Benz Credit Corp. v. Rhyne, 

925 S.W.2d 664 (Tex. 1996). ...................................................................... 8 

Regalado v. State, 

934 S.W.2d 852, 854 (Tex. App.--Corpus Christi 1996, no writ) .......... 8, 9 

HB & WM, Inc. v. Smith,

802 S.W.2d 279 (Tex.App. —San Antonio 1990). ................................ 9, 10 

Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc.,

186 S.W.3d 571, 573-74 (Tex.2006) .......................................................... 9 

Higginbotham v. General Life and Acc. Ins. Co.,

796 S.W.2d 695, 696-697 (Tex. 1990). .............................................. 11, 12 

Dawson v. Briggs,

107 S.W.3d 739 (Tex.App.—Fort Worth 2003). ..................................... 12 

Garrels v. Wales Transp., Inc.,

706 S.W.2d 757 (Tex.App. —Dallas 1986). ....................................... 12, 14 

St. Louis & S. F. R. Co. v. Hale, 

109 Tex. 251, 206 S.W. 75 (1918). ........................................................... 14 

Hale and Ana-Log, Inc. v. City of Tyler,

520 S.W.2d 819 (Tex.Civ.App. Tyler 1975, no writ). .............................. 14 
v

In re Baylor Medical Center at Garland,

28 S.W.3d 227 (Tex. 2008). ....................................................................... 14

Allied Rent-All, Inc. v. International Rental Ins., 

764 S.W.2d 11 (Tex.App. —Houston [14 Dist.] 1988). ...................... 14, 15 

Grissom v. Watson, 

704 S.W.2d 325, 326 (Tex.1986); ............................................................ 15 

United Beef Producers, Inc. v. Lookingbill,

532 S.W.2d 958, 959 (Tex.1976). ............................................................. 15 

Rules

Tex. R. App. P. 38.1(a) ............................................................................... ii 

Tex. R. Civ. P. 103 ................................................................ 3, 4, 5, 8, 9, 11 

Tex. R. Civ. P. 106 ................................................................................ 3, 10

Tex. R. Civ. P. 118 .................................................................................... 11

Tex. R. Civ. P. 320 ................................................................15
vi

REFERENCE CITATION GUIDE

The Record on Appeal

This Brief will refer to the record as follows:

Clerk's Record "CR [page]" Clerk's

Supplemental Record "CSR [page]"

The reporter's record will be referred to in this brief as follows:

Reporter's Record "[volume] RR [page]"
1

TO THE HONORABLE COURT OF APPEALS: 

STATEMENT OF THE CASE 

This is an appeal from the trial court’s order that vacated a prior order 

granting a new trial and reinstated a default judgment. Travis and Lisa Bailey 

(hereinafter “the Baileys”) filed suit against David Wayne Thompson (hereinafter 

“Thompson) for breach of contract arising from construction work that the Baileys 

had hired Thompson to perform that he failed to complete. (CR 4-13) A default 

judgment was obtained against Thompson, and he timely filed a motion for new 

trial (CR 33-34) After a hearing, the trial court granted the motion for new trial and 

awarded the Bailey’s attorney’s fees. (CR 55) About two months later, when 

Thompson had taken no action on the case or made any payment of attorney’s fees, 

the Baileys filed a motion to vacate the prior order granting new trial and to 

reinstate the prior judgment. (CR 58-60) In response to the motion, after 

Thompson filed a response motion and there was a full hearing on the issue, the 

trial court entered a new order making the grant of a new trial conditioned upon the 

payment of the Bailey’s attorney’s fees. (2 RR 9; CR 83-85) After Thompson 

failed to make any attempt to pay the attorney’s fees as ordered, the trial court 

entered an order vacating the order granting the motion for new trial. (SCR 3-4)

Thompson now appeals. 
2

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument because appellant believes it will assist the 

Court in clarifying the issues addressed in the brief.

ISSUES PRESENTED

ISSUE ONE: Did the trial court commit reversible error by reinstating the 

default judgment.

STATEMENT OF THE FACTS

On July 7, 2013 the Baileys filed suit against Thompson, alleging breach of 

contract and damages totaling $17,158.87. The suit arose from work the Baileys

hired Thompson to perform on their home and on a cabin on their property. (CR 

4-6) 

On March 21, 2014 the Baileys filed a motion seeking authorization for 

service to be perfected by leaving a copy of the citation with the petition attached 

with anyone over 16 years of age or by leaving a copy of the citation with the 

petition attached to the door of Thompson's residence. Attached to the Baileys 

motion was an affidavit by their chosen process server Hector Olivarez (hereinafter 

"Mr. Olivarez"). Mr. Olivarez stated that he was a retired deputy sheriff, and that 

he had twice attempted service on Thompson but was unsuccessful though
3

Thompson’s wife was present at the address and in contact with Thompson. (CR 

24-29) 

On March 21, 2014 the trial court granted the motion for substituted service, 

and on March 25, 2014 Mr. Olivarez served the citation and petition on 

Thompson's wife. (CR 29-30) Thompson was never personally served, but when

made aware that his wife had been served it was his belief that he was not required

to take action because he thought that a lawsuit could not proceed unless he was

personally served. It is undisputed that Thompson had personal knowledge of the 

lawsuit and that the alternative service was successful in providing service to 

Thompson. (CR 41-42)

When Mr. Olivarez served Thompson's wife he was a retired sheriff’s 

deputy, and authorized by written order of the court to serve Thompson under rule 

106 of the Texas Rules of Civil Procedure. (CR 27-28; 1 RR 9) Mr. Olivares was 

authorized by written order of the 38th Judicial District Court to serve under rule 

103 of the Texas Rules of Civil Procedure on July 17, 2014. (Appendix 1)

Thompson did not file a written answer, and on April 28, 2014 the Baileys

obtained a default judgment against him. The judgment awarded $17,158.87 in

damages; $711.54 as interest on damages due to the date of the judgment; $7,500

in attorney's fees; and $338.00 in court costs. (CR 33-34)
4

On May 15, 2014, Thompson timely filed a motion for new trial. (CR 35) In

his motion he argued that a new trial should be granted on two grounds. First, he 

argued that service was defective. He argued that because the process server, Mr.

Olivarez, was not authorized to serve under the Texas Rules of Civil Procedure

section 103, the service was defective, and without valid service the trial court

lacked personal jurisdiction.

1 In the alternative, he argued that his mistake should

be excused for cause. (1 RR 6) He argued that his failure to answer was due to 

accident or mistake, that he had a meritorious defense, and that a new trial would 

not injure or delay the Baileys because he offered to pay reasonable attorney’s fees 

and costs. (CR 35-43) 

In reply, the Baileys argued that Mr. Olivarez was authorized to serve under 

rule 103 of the Texas Rules of Civil Procedure and that service was properly 

completed. Alternatively, The Baileys argued that Thompson was well aware of 

the suit, knew that he had been served via his wife, and the fact he did not 

understand the citation, and made no response or attempt to understand the 

citation, did not constitute a mistake of law sufficient to sustain a new trial2. (CR 

44-54) 

 

1Mr. Thompson also argued that service was defective because he was never personally served 

and that substituted service order should not have been authorized. He has not renewed those 

arguments in this appeal.

2 Though the Baileys made other arguments in response to the motion for new trial none are 

applicable here.
5

A hearing was held on the motion for new trial on June 24, 2014. (1 RR 1) 

The Order granting defendant’s motion for new trial was granted solely on the 

grounds that the Court excused Thompson’s failure to appear for cause. (CR 55) 

At the conclusion of the hearing, the trial court asked counsel for both parties to

research their respective positions and to submit any evidence in support thereof 

by June 27, 2014. (1 RR 3, 9) In response, the Baileys counsel submitted a letter

to the Court dated June 27, 2014. (CR 56-57) At no time did Mr. Thompson’s 

counsel provide the trial court any authority that Mr. Olivarez was not authorized 

to serve process under Texas Rules of Civil Procedure section 103 as a retired 

sheriff’s deputy. 

On July 2, 2014 the trial court granted the motion for new trial, but did not 

grant the motion based upon defective service. The trial court ordered Thompson

to pay the Baileys $4,806.90 in costs associated with the motion for new trial

within 30 days from the signing of the order. (CR 33-34). Thompson wholly and 

completely failed to comply with the court’s valid order by not tendering so much 

as a dime. (2 RR 4)

On August 28, 2014 the Baileys filed a motion to vacate the order granting 

new trial and a motion to reinstate the prior judgment. The Baileys argued that, 

because Thompson had failed to pay the attorney's fees, the default judgment 

should be reinstated. (CR 58-60) On September 10, 2014 a hearing was held on
6

the motion, and the court found that in its initial order granting new trial it did not 

clearly provide that the motion for new trial was conditionally granted. The court 

ordered counsel for the Baileys to provide Thompson with their billing statements

and ruled that if Thompson objected to the amount of the fees then the court would

hold a separate hearing to determine the appropriate amount of attorney's fees. The 

court also ruled that once the appropriate amount of attorney's fees were

determined by the court, the motion for new trial would be conditionally granted.

(2 RR 9-11)

On December 8, 2014 the hearing was held to determine the appropriate 

amount of attorney's fees. The court ordered $2,677.50 in attorney's fees and 

ordered Thompson to pay those fees on or before January 7, 2015. (3 RR 12)

Thompson failed to pay the attorney's fees, and on February 5, 2015 the trial

court entered its order reinstating the prior judgment and vacating the order 

granting new trial. (CSR 3-4).

SUMMARY OF THE ARGUMENT

The trial court committed no error granting the motion for new trial, granting 

a second motion for new trial conditioned upon the payment of fees and costs by 

Appellant, and then whence Appellant made no effort in any manner to follow the 
7

order of the court, vacating the motion for new trial and reinstating the default 

judgment. The court originally had personal jurisdiction over Appellant as 

Appellant was properly served, or in the alternative gained personal jurisdiction 

prior to the entry of the final judgment. The trial court committed no error.

ARGUMENT AND AUTHORITY

I. Standard of Review

A trial court’s decision on a motion for new trial is reviewed under an abuse 

of discretion standard. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). Trial 

courts have been vested with broad discretion in ruling upon a motion for new trial 

and “absent manifest abuse of discretion” the trial court’s actions should not be 

disturbed on appeal. Equitable General Ins. Co. v. Yates, 684 S.W.2d 669, 670 

(Tex. 1984).

An abuse of discretion occurs only when the trial court’s decision is "so 

arbitrary and unreasonable as to amount to a clear and prejudicial error of law." 

Johnson v. Fourth Ct. App., 700 S.W.2d 916, 917 (Tex. 1985), overruled on other 

grounds by In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 

S.W.3d 204, 52 Tex. S.Ct. J. 1016 (Tex. 2009). The test for an abuse of discretion 

is whether the trial court’s decision is arbitrary, unreasonable, and without 
8

reference to any guiding rules and principles. Mercedes-Benz Credit Corp. v. 

Rhyne, 925 S.W.2d 664 (Tex. 1996). 

II. Argument

A. Service was proper.

1. Appellant can cite no case law determining that a retired sheriff’s deputy 

is not covered under Rule 103 of the Texas Rules of Civil Procedure. Rule 103 lists 

sheriffs or constables, however in practice the rule allows both actual sheriffs and 

their deputies to serve citations. Here, the officer, Hector Olivarez, was a known, 

retired sheriff’s deputy who routinely served citations in the county. (CR 50) The 

trial court was itself unaware that Hector Olivarez’s ability to be a process server 

in Uvalde County was questionable. (1 RR 3) Directly after the motion for new 

trial was granted, and while the court retained plenary power, the trial court also 

signed an order authorizing Mr. Olivarez as a process server for Uvalde County, 

Texas. 

There is no requirement in Rule 103 that the sheriff or constable be an active 

sheriff or constable in order to effectively service citation. The requirement of 

strict compliance with the rules relating to the issuance of citation, the manner and 

mode of service, and the return of process does not mandate "obeisance to the 

minutest detail." Regalado v. State, 934 S.W.2d 852, 854 (Tex. App.--Corpus 
9

Christi 1996, no writ) (citing Herbert v. Greater Gulf Coast Enter., 915 S.W.2d 

866, 871 (Tex. App.--Houston [1 st Dist.] 1995, no writ)). As long as the citation 

and return show, with reasonable certainty, that the citation was served on the 

defendant in the suit, service of process will not be invalidated. Regalado v. State, 

934 S.W.2d at 854.

Appellant cites HB & WM, Inc. v. Smith putting forth that the basis for the 

court’s reversal of a default judgment was that the record failed to show 

affirmative compliance with Rule 103 when the private process server was not 

authorized. Tex. R. Civ. P. 103. 802 S.W.2d 279 (Tex.App. —San Antonio 1990). 

(Appellant’s Brief, Pg. 10) However, the case at bar is distinguishable and requires 

a different result. 

HB & WM, Inc. regards a writ of error, now referred to as a restrictive 

appeal. Id. In a restrictive appeal, defective service of process constitutes error 

apparent on the face of the record, however the record is not so limited when a 

default judgement is attacked by a motion for new trial in the trial court. Fid. & 

Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573-74 (Tex.2006) 

(discussing differences between restricted appeals and appeals from motions for 

new trial or bills of review). On an appeal from a motion for new trial the parties 

may introduce affidavits, depositions, testimony, and exhibits to explain what 

happened. Id. at 574.
10

It is also important to note that this court in HB & WM, Inc. mentions the 

lack of any evidence regarding the private process server authorization and the 

limited evidence on the process server actual identity, and then goes on to discuss a 

number of other issues with the return of service, including the fact that the time on 

the return was an impossibility. HB & WM, Inc. at 281. Additionally, the party at 

issue in HB & WM, Inc. filed an affidavit stating that not only had he never been 

served, but that at the date and time on the return he was not physically present in 

the city on the day the citation was allegedly served upon him. Id. 

The facts in the case at bar can be differentiated as the party testified he had 

actual knowledge of the suit, was effectively served under rule 106 of the Texas 

Rules of Civil Procedure, the private process server was a known, retired sheriff’s 

deputy, and Appellant makes no objection to the rest of the return in this appeal. 

(CR 41-42) (CR 30-32) (CR 55) (CR 29) This is in addition to the fact that the 

manner of appeal is so different as to require a completely different analysis. 

2. The trial court’s Order granting the motion for substituted service 

authorized Hector Olivarez to serve Appellant. The trial court’s order granting 

substituted service allowed for “the officer” who was executing the citation to state 

on the return the manner in which citation was executed. (CR 29) The Order 

granting substituted service was based upon the affidavit of Mr. Olivarez and the 

officer as stated in the Order clearly referred to Mr. Olivarez and allowed for Mr. 
11

Olivarez to effectively serve the citation by alternate means. Id. (CR 27-28) The 

return of the citation was properly completed and verified by Mr. Olivarez. (CR 

30-32) Rule 103 of the Texas Rules of Civil Procedure allows for service by 

anyone authorized by written order of the court. The Order Granting Substituted 

Service granted Mr. Olivarez the ability to properly serve Appellant. (CR 29)

3. The trial court’s Order Granting New Trial was an affirmative 

amendment of the return allowing Hector Olivarez to serve Appellant. In 

Higginbothem v. General Life, the Supreme Court held that the trial court has 

express authority under rule 118 of the Texas Rules of Civil Procedure to allow 

amendment of the return to reflect the service that was actually had. Tex. R. Civ. P. 

118. Higginbotham v. General Life and Acc. Ins. Co., 796 S.W.2d 695, 696-697 

(Tex. 1990). In the case at bar, the trial court’s grant of a new trial to appellant was 

granted on the sole basis of excusing defendant’s failure to appear for cause. (CR 

55) The affidavit of Hector Olivarez supporting the motion for substituted service, 

the return of the substituted service, and Appellant’s own admission establish that 

Appellant had actual notice of the suit and that the citation by substituted service 

was effective. (CR 27-28; 41-42) The Supreme Court in Higginbothem stated that 

there was no reason to require the trial judge to sign a separate order labeled 

“Order Granting Amendment of Return” when the record affirmatively shows 

service of citation, and the trial court in a formal order found the service valid, as 
12

the order signed by the trial court was tantamount to an order amending the return. 

Higginbothem at 697. See Dawson v. Briggs, 107 S.W.3d 739 (Tex.App.—Fort 

Worth 2003). 

4. No Service was required after Appellant’s appearance to fight the Default 

Judgment. Texas case law is well settled that after a defendant appears to attack the 

default judgment he has “submitted himself to the jurisdiction of the district court 

and no new service is necessary.” Garrels v. Wales Transp., Inc., 706 S.W.2d 757 

(Tex.App. —Dallas 1986). Here, Appellant appeared and attacked the default 

judgment and won the motion for new trial. At that point Appellant had acquiesced 

to the jurisdiction of the trial court and any further argument regarding service was 

moot. The trial court granted Appellant’s motion for new trial. (CR 55) Appellant 

is only appealing the later judgment made by the court, not the original default 

judgment. 

At the time the court entered the final appealable order Appellant had 

entered his appearance. (SCR 3-4) There was never a special appearance filed, 

Appellant was represented at each of the subsequent hearings held on the case, 

Appellant filed multiple motions regarding the case and none were subject to any 

special appearance or plea, and Appellant appeals from the final judgment in the 

case made months after Appellant’s original appearance and the granting of a 
13

motion for new trial all establish the fact that the trial court had gained personal 

jurisdiction over Appellant.

Appellees believes it is important to note that after the grant of the original 

motion for new trial Appellant made no effort to do anything in regard to the suit. 

In fact, at no time did Appellant ever file an answer, even though no additional 

service was necessary and the court had gained personal jurisdiction over him at 

the time the motion for new trial was granted. When the motion to vacate and

reinstate was filed Appellant still had not filed an answer and fifty-six days had 

passed since the motion for new trial was granted. At that time Appellee would 

have been allowed to in essence take (another) default judgment against Appellant 

based upon the court having gained personal jurisdiction over Appellant and no 

answer being on file with the court. 

B. The trial court was allowed to make the grant of the Motion for New Trial 

conditional upon the payment of fees and costs.

1. The trial court had personal jurisdiction over Appellant at the time the 

motion for new trial was conditionally granted. The trial court first determined that 

Appellant was entitled to a new trial and granted Appellant that second bite at the 

apple. The trial court, after hearing and briefing by counsel for both parties, 

ordered Appellant to pay fees and costs to Appellee within thirty days. (CR 55)
14

However after more than fifty-six days Appellant had made no attempt to even 

contact counsel for Appellee much less pay any sum of the ordered fees and costs. 

(2 RR 4)

At that time the court gave Appellant a third bite at the apple, by revising her 

prior order and making the grant of new trial explicitly conditional upon payment 

of fees and costs within an additional thirty days from the date the amount of fees 

was determined by the court. (CR 83-85) Appellee’s counsel submitted all invoices 

and billing to Appellant’s counsel, Appellant’s counsel objected and a hearing was 

held to determine the final number. (CR 69-82; 68) (3 RR 1-13)

During the hearing Appellant’s counsel stipulated to Appellee’s counsel’s 

billing rate and experience, the court then made a final determination regarding the 

amount of fees and costs ordered. (3 RR 6-12) Thereinafter, no attempt by 

Appellant was ever made to pay any sum to Appellee. (SCR 3-4)

As argued above, once a defendant has appeared to attack a default 

judgment, service is no longer required and the court has obtained personal 

jurisdiction over the defendant and it is not necessary to serve defendant. Garrels 

706 S.W.2d 757. See also St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S.W. 

75 (1918); Hale and Ana-Log, Inc. v. City of Tyler, 520 S.W.2d 819 (Tex.Civ.App. 

Tyler 1975, no writ). A trial court maintains jurisdiction to reconsider a new trial 

order as long as the case is still pending. In re Baylor Medical Center at Garland, 
15

28 S.W.3d 227 (Tex. 2008). Here, Appellant repeatedly appeared and subjected 

himself to the trial court’s jurisdiction, additionally no special appearance was ever 

filed. Thus the trial court had personal jurisdiction over the defendant when the 

motion for new trial was conditionally granted upon the payment of Appellee’s 

costs. 

2. A trial court may grant a motion for new trial conditionally upon specific 

terms. Trial courts have great discretion in granting a motion for new trial. Specific 

terms provided by the court will only be reviewed on an abuse of discretion 

standard. Allied Rent-All, Inc. v. International Rental Ins., 764 S.W.2d 11 

(Tex.App. —Houston [14 Dist.] 1988). See also TEX.R.CIV.P. 320; Grissom v. 

Watson, 704 S.W.2d 325, 326 (Tex.1986); Equitable General Texas v Ins. Co. of. 

Yates, 684 S.W.2d at 670; United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 

958, 959 (Tex.1976). Trial courts may condition a grant of new trial upon the 

payment of attorney's fees, expenses for witnesses, travel and other costs incurred 

in obtaining the default judgment. Allied Rent-All, Inc. v. International Rental, Ins.,

764 S.W.2d at 13. Equitable General Ins. Co. of Texas v. Yates, 684 S.W.2d at 

671; United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d at 959. The case law 

is definitive in its grant of broad authority to the district courts to make equitable 

determinations regarding new trials. Appellant misconstrues case law as limiting 

conditional grants of new trial to causes determined under the Craddock factors, 
16

but he provides no case law to support this contention. None of the case law 

provided regarding equitable determinations on conditional grants of new trial 

limits the court’s discretion to specific fact situations. 

In the case at bar, the trial court placed reasonable conditions on Appellant’s

new trial based upon the facts of the case as established through a number of 

hearings. The trial court exercised its discretion in a limited function to provide an 

equitable solution to the case, giving Appellant repeated options to have his case 

re-started from its inception, none of which Appellant utilized. 

 

CONCLUSION AND PRAYER 

For these reasons, Travis Bailey and Lisa Bailey, Appellees, requests that 

this court affirm he trial court judgment. 

 Respectfully Submitted, 

 

 ___________________________ 

 PAUL J. TARSKI 

 Attorney for Appellees 

 State Bar No. 19652525 

 205 N. Getty Street 

 Uvalde, Texas 78801 

 Ph: (830) 278-2544 

 Fax: (830) 278-7316 
17

CERTIFICATE OF SERVICE

 I certify that a true copy of this brief was served by electronic mail on April 

14, 2015 on the following counsel of record: 

 

 Mr. Rogelio M. Munoz 

 231 South Getty Street 

 Uvalde, Texas 78801 

 roy@swtexaslaw.com 

 ___________________________ 

 PAUL J. TARSKI 
18

CERTIFICATE OF COMPLIANCE 

 I certify that, per Tex. R. App. 9.4, this brief: (1) contains 3,451 words 

except for the exempted portions of Tex. R. App. 9.4(i)(1); and (2) has been 

prepared in conventional typeface no smaller than 14-point for text and 12-point 

for footnotes. 

 _________________________________ 

 PAUL J. TARSKI 
19

APPENDIX 

TAB 1 Standing Order Granting Hector P. Olivarez to Serve Process 
20

TAB 1