David Wayne Thompson v. Travis Bailey and Lisa Bailey
04-15-00036-CV
| Tex. App. | Apr 14, 2015Background
- Baileys sued Thompson for breach of contract for construction work; default judgment entered after Thompson did not file an answer.
- Thompson timely moved for new trial, alleging defective service (private server/retired deputy not authorized) and, alternatively, excusable mistake and a meritorious defense.
- The trial court granted the motion for new trial on the ground of excusable failure to appear and ordered Thompson to pay the Baileys’ fees/costs; Thompson did not pay.
- The Baileys then moved to vacate the new-trial order and reinstate the default judgment; the court held hearings, fixed attorney’s fees, made the new-trial grant expressly conditional on payment, and when Thompson failed to pay, vacated the new-trial order and reinstated the default judgment.
- Appellees argue (and the trial court found) that substituted service was effective or cured, that Thompson appeared and submitted to jurisdiction, and that the court permissibly conditioned the new trial on payment of fees/costs.
Issues
| Issue | Plaintiff's Argument (Bailey) | Defendant's Argument (Thompson) | Held |
|---|---|---|---|
| Validity of substituted service / personal jurisdiction | Service was proper: process server (retired deputy) was authorized by court order and return was adequate; any defect was cured by appearance and court action | Service invalid because private server/retired deputy not authorized under Tex. R. Civ. P. 103 and Thompson was not personally served | Trial court did not abuse discretion: service either proper, effectively amended/validated by court orders, or rendered moot by Thompson’s appearance and submission to jurisdiction |
| Whether court could condition grant of new trial on payment of fees/costs and later reinstate default for nonpayment | Court may conditionally grant a new trial on payment of attorney’s fees/costs; failure to comply permits vacatur of the new-trial order and reinstatement of default | Conditioning the grant was improper or unfair; reinstating judgment was reversible error | Trial court acted within broad equitable discretion to condition a new trial on payment and to vacate the new-trial order when Thompson failed to comply |
Key Cases Cited
- Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984) (motion-for-new-trial reviewed for abuse of discretion)
- Equitable Gen. Ins. Co. v. Yates, 684 S.W.2d 669 (Tex. 1984) (broad trial-court discretion on new trials and equitable relief)
- Johnson v. Fourth Ct. App., 700 S.W.2d 916 (Tex. 1985) (abuse-of-discretion standard described)
- Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664 (Tex. 1996) (tests for abuse of discretion)
- Higginbotham v. Gen. Life & Acc. Ins. Co., 796 S.W.2d 695 (Tex. 1990) (trial court may amend return or make findings reflecting actual service)
- Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571 (Tex. 2006) (distinguishing restricted/appeal-limited review from fuller review on motions for new trial)
- Allied Rent-All, Inc. v. Int’l Rental Ins., 764 S.W.2d 11 (Tex. App. —Houston [14th Dist.] 1988) (trial court may condition new trial on payment of costs/fees)