Alamo Home Finance, Inc. and Gonzalez Financial Holdings, Inc. v. Mario Duran and Maria Duran
13-14-00462-CV
| Tex. App. | Mar 27, 2015Background
- Appellants Alamo Home Finance, Inc. and Gonzalez Financial Holdings appeal a default judgment entered in Hidalgo County against Alamo.
- Alamo asserts it was never properly served with a petition naming it and thus the trial court lacked in personam jurisdiction.
- Alamo's original motion for new trial (filed by prior counsel) contained a brief statement admitting service of process to the registered agent; Alamo later filed an amended motion for new trial expressly challenging jurisdiction.
- The trial court denied relief and no new trial was granted; Alamo appeals claiming both defective service (jurisdictional defect) and entitlement to relief under the Craddock standards for setting aside a default judgment.
- Alamo submitted an affidavit from its president stating Alamo first learned of the judgment when it received the judgment from the district clerk and that it never received citation or notice naming it as a defendant.
Issues
| Issue | Plaintiff's Argument (Durans) | Defendant's Argument (Alamo) | Held / Appellate Guidance |
|---|---|---|---|
| Whether Alamo may raise defective-service / in personam jurisdiction for the first time on appeal | Allege Alamo failed to preserve error and cannot change theory on appeal; earlier pleading admitted service | Defective-service is jurisdictional and may be raised for the first time on appeal; an earlier superseded pleading admission does not waive the defense | Court guidance: defective service that deprives the court of in personam jurisdiction can be raised on appeal; preservation rules do not bar such challenges (see Wilson and related authorities) |
| Whether an amended (and arguably untimely) motion for new trial preserves a defective-service claim | Argue amended motion was untimely and does not preserve error | Even untimely amended motions may be considered by the trial court within plenary power; appellate review of denial of untimely new-trial motion is limited, but jurisdictional defects are excepted | Jurisdictional defects (defective or absent service) are not waived by failure to raise them in a motion for new trial and may be reviewed on appeal |
| Whether Alamo satisfied Craddock (excusable neglect / meritorious defense / prompt motion) to set aside default judgment | Argue Alamo failed to show lack of conscious indifference and meritorious defense on all claims | Alamo proffers affidavit showing no notice and that failure to appear was a bona fide mistake; asserts meritorious defense (no contractual obligation to procure insurance) and prompt motion after learning of judgment | Court guidance: affidavit showing lack of notice can satisfy Craddock’s first prong; meritorious defense need not defeat every claim—only likely to produce different result on retrial; reliance-on-agent cases require showing agent and principal not consciously indifferent, but that doctrine is inapplicable where plaintiff never provided notice |
| Effect of prior counsel’s statement admitting service | Plaintiff: treat statement as judicial admission and bar new argument on appeal | Alamo: prior counsel’s statement was superseded by amended motion; statements in amended/abandoned pleadings are not judicial admissions | Superseded or amended pleadings cease to be judicial admissions; prior stray statement does not foreclose jurisdictional challenge on appeal |
Key Cases Cited
- Davis v. Campbell, 572 S.W.2d 660 (Tex. 1978) (parties generally restricted on appeal to the theory tried below)
- Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430 (Tex. App.—Fort Worth 1997, writ denied) (limitations on appellate theories where trial was on a particular theory)
- Drake Ins. Co. v. King, 606 S.W.2d 812 (Tex. 1980) (amended pleadings cease to be judicial admissions)
- Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983) (trial court discretion to consider late new-trial motion)
- Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003) (trial court may grant new trial under inherent authority; appellate review of denial of untimely new-trial motion is limited)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (defective service that deprives the court of jurisdiction requires reversal of default judgment; such complaints need not be preserved in a motion for new trial)
- Benefit Planners, LLP v. RenCare, Ltd., 81 S.W.3d 855 (Tex. App.—San Antonio 2002, pet. denied) (defective service may be raised on appeal)
- Lee Hoffpauir, Inc. v. Kretz, 431 S.W.3d 776 (Tex. App.—Austin 2014, no pet.) (reversed default judgment for defective service despite failure to raise in motion for new trial)
- Memorial Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645 (Tex. App.—Houston [14th Dist.] 1992, no writ) (when defendant relied on agent to answer, must show neither agent nor principal acted with conscious indifference)
- Sharm, Inc. v. Martinez, 900 S.W.2d 777 (Tex. App.—Corpus Christi 1995, no writ) (same principle regarding reliance on third-party agent)
- Kirby Highland Lakes Surgery Ctr., LLP v. Kirby, 183 S.W.3d 891 (Tex. App.—Austin 2006, no pet.) (statements in amended pleadings are not judicial admissions)