Alamo Home Finance, Inc. and Gonzalez Financial Holdings, Inc. v. Mario Duran and Maria Duran
13-14-00462-CV
| Tex. App. | Mar 9, 2015Background
- Duran homeowners were financed by Alamo Home Finance (Tax Lender) which allegedly pocketed insurance funds rather than purchasing insurance.
- Hurricane Dolly damaged the homes; homeowners sued for various claims including deceptive trade practices and fiduciary breaches.
- Tax Lender was properly served via its registered agent; it admitted service in its motion for new trial.
- Default judgment entered after Tax Lender failed to appear; Tax Lender sought a new trial long after the judgment.
- Tax Lender’s initial motion for new trial did not raise improper service; a second amended motion raised service issues but was filed after the 30-day window and deemed a nullity.
- Trial court did not expressly rule on the motion for new trial; no opportunity to exercise discretion was provided, so the default judgment stood and was appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of error in service challenges | Duran argues improper service not preserved | Alamo contends preservation required; conceded service proper | Error preserved? No; service issues unpreserved and thus not reviewable |
| Ability to switch theories on appeal | Duran cannot switch from proper service to improper service on appeal | Alamo first argued proper service, now argues improper | Prohibition on switching theories; not permitted |
| Timeliness and effect of second motion for new trial | Second motion preserves service issues | Second motion untimely; nullity | Second motion untimely; constitutes nullity; only initial motion preserved issues |
| Merits for granting a new trial after default judgment | Movement for new trial based on alleged defects is meritorious | No conscious indifference; meritorious defense not shown | Craddock factors not satisfied; no new trial warranted |
| Constitutional validity of service standards asserted | Service rules overbroad; unconstitutional | Service complied; not unconstitutional | Service valid; rules not unconstitutional as applied |
Key Cases Cited
- Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (Tex. 1939) (establishes Craddock standard for new trials after default judgment)
- Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430 (Tex. App. Fort Worth 1997) (preservation and scope of appellate review; trial court discretion)
- L.L. v. Regalado Family Ltd. Partnership, 2011 WL 3366345 (Tex. App.—Corpus Christi 2011) (not an official reporter; omitted due to WL not allowed)
- Williams v. Williams, 150 S.W.3d 436 (Tex. App.—Austin 2004) (service sufficiency and notices; not fatal defects)
- Fisher Ins. Agency, Inc., 835 S.W.2d 645 (Tex. App.—Houston [14th Dist.] 1992) (merits of agency forwarding petition to insurer; constructive defense)