Alamo Home Finance, Inc. and Gonzalez Financial Holdings, Inc. v. Mario Duran and Maria Duran
13-14-00462-CV
| Tex. App. | Apr 23, 2015Background
- Alamo Home Finance (Tax Lender) was sued by Mario and Maria Duran (Home Owners); a default judgment was entered after Tax Lender failed to answer.
- In a pretrial filing (Cl.R. 41) Tax Lender admitted its registered agent, Corporation Service Company (d/b/a CSA-Lawyers Inc.), was properly served; on appeal Tax Lender later argued service was defective.
- Tax Lender filed an amended motion for new trial 87 days after judgment (outside the 30-day window), which appellees argue is a nullity and cannot supplant the earlier judicial admission.
- Tax Lender did not produce affidavit or testimony from its registered agent explaining what occurred after receipt of the second amended petition; appellees contend this failure defeats the Craddock burden to show lack of conscious indifference.
- Appellees argue Tax Lender failed to preserve any service-of-process complaint in a timely motion for new trial, raising preservation and constitutional notice arguments; they ask the appellate court to affirm the trial court judgment.
Issues
| Issue | Plaintiff's Argument (Duran) | Defendant's Argument (Alamo) | Held (as argued by appellees) |
|---|---|---|---|
| Whether Tax Lender judicially admitted proper service | Duran: Tax Lender’s motion admitted registered agent was properly served; that is a binding judicial admission | Alamo: Later on appeal contends it was not properly served; contends amended motion may supersede earlier statement | Judicial admission stands; Alamo is barred from disputing service because it previously admitted service in its motion and its late amended motion is ineffective |
| Whether service-of-process complaints must be preserved in a timely motion for new trial | Duran: Rule 33.1 requires timely preservation; service defects must be raised so trial court and plaintiff have notice and chance to correct | Alamo: Argues service defects need not be preserved in motion for new trial or can be raised for first time on appeal | Preservation is required; exempting service complaints would conflict with Rule 33.1 and raise constitutional notice/due-process concerns |
| Whether Tax Lender met its Craddock burden (lack of conscious indifference) by presenting evidence about its registered agent | Duran: Defendant must present evidence explaining agent’s conduct; failure to produce agent affidavit is fatal | Alamo: Suggests agent evidence is only required when agent was entrusted to file an answer and thus not necessary here | Failure to present evidence from the registered agent means Alamo did not satisfy Craddock and cannot show lack of conscious indifference |
| Whether Tax Lender showed a meritorious defense / harmless error sufficient to overturn default judgment | Duran: Alamo failed to attack all grounds and did not present evidence on affirmative defenses or damages; harmless-error argument fails | Alamo: Claims need only show a different result at trial or that error was harmless | Merits not proven; because not all grounds were attacked and evidence lacking, harmless-error/merits showing fails and judgment should be affirmed |
Key Cases Cited
- Davis v. Campbell, 572 S.W.2d 660 (Tex. 1978) (party may be bound by statements in pleadings and cannot switch positions on appeal)
- Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458 (Tex. 1969) (effect of judicial admissions: bars later dispute and relieves opponent of burden to prove admitted fact)
- First Nat. Bank of Bryan v. Peterson, 709 S.W.2d 276 (Tex. App.—Houston [14th Dist.] 1986) (statements that action was served held to be judicial admissions of proper service)
- Hurst v. A.R.A. Mfg. Co., 555 S.W.2d 141 (Tex. Civ. App.—Fort Worth 1977) (judicial admission of service precludes later challenge)
- Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) (pleadings and motions may retain evidentiary significance even when superseded, depending on context)
- Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003) (untimely amended motions for new trial ineffectual; trial court may ignore tardy motions)
- Perry v. Del Rio, 67 S.W.3d 85 (Tex. 2001) (constitutional due-process notice principles governing notice and opportunity to be heard)
- Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996) (appellate courts must affirm judgments that are sustainable on any ground in the record)