Mark J. Healey v. Edwin N. Healey ( 2015 )

ACCEPTED
12-15-00047-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/25/2015 8:23:18 AM
Pam Estes
CLERK
Cause No. 12-15-00047-CV
IN THE COURT OF APPEALS
FOR THE TWELFTH JUDICIAL DISTRICT FILED IN
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
11/25/2015 8:23:18 AM
PAM ESTES
Clerk
==========================================================
MARK J. HEALEY
APPELLANT
V.
EDWIN N. HEALEY
APPELLEE
===========================================================
On Appeal from Severed Cause No. 2014C-0638
From the 3rd District Court, Henderson County, Texas
Honorable Mark Calhoon, Judge Presiding
======================================================
APPELLANT’S REPLY BRIEF
======================================================
STARK & GROOM, L.L.P.
Steve Stark
State Bar No.: 19066000
110 East Corsicana Street
Athens, Texas 75751
Phone: (903)675-5691
Fax: (903)675-6454
Email: stevestark@starkandgroom.com
Attorney For Appellant
TABLE OF CONTENTS
INDEX OF AUTHORITIES……………………………………...................3
I. OBJECTION TO APPELLEE’S STATEMENT OF FACTS AND
INTRODUCTION………………………………………………...….5
II. APPELLANT’S WAIVER OF SPECIAL APPEARANCE ERROR..5
III. SUMMARY OFARGUMENT……………………………………….5
IV. REPLY TO ASSERTION THIS APPEAL IS MOOT…………….....6
V. REPLY TO ASSERTION THAT DEFAULT JUDGMENT WAS
PROPER……………………………………………………………...7
VI. REPLY TO CRADDOCK ISSUES………………………………….9
VII. REPLY TO ASSERTION THAT APPELLANT DID NOT
PRESERVE ERROR RE: SEVERANCE………………………….10
VIII. REPLY TO ASSERTION THAT SEVERANCE WAS PROPER
AND HARMLESS………………………………………………….10
IX. CONCLUSION AND PRAYER……………………………………16
CERTIFICATE OF COMPLIANCE & CERTIFICATE OF SERVICE….18
APPENDIX
Bankruptcy Code 11 US Code 108 ………………………..……………..6
Bankruptcy Petition ……………………………………………….21, 22, 23
Order of Lift Of Stay……………………………………………………....24
2
INDEX OF AUTHORITIES
Cases
Butler v. Butler 577 S.W.2d 581 (Tex. Civ. App-Texarkana 1978, writ
dismissed 1979)…………………………………………………………..9
Continental Carbon Co. v. Sea-Land Services, Inc.., 27 S.W.3d 194
(Tex. App. Dallas 2000, rev. denied)…………………………………8, 9
Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939)………..5, 9
Director State Employees, Workers’ Compensation Div. v. Evans,
889 S.W.2d 266 (Tex. 1994)……………………………………………….9
In Re J.P. 196 S.W.3d 434 (Tex. App.-Dallas 2006)……………………...7
Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d
652 (Tex. 1990). ……………………………………………………..…11
Kao Holdings, Lt. v. Young, 214 S.W.3d 504 (Tex. App. Hou.
[14th Dist. 2006]……………………………………………………..….10
Kansas University Endowment Association v. King, 350 S.W.2d 11
(Tex. 1961)………………………………………………………...…13, 14
Landers v. East Tex. Salt Water Disposal Co., 248 S.W.2d 731
(Tex. 1952)…………………………………………………………...11, 13
LBL Oil Co. v. Int’l Power Serv., Inc., 777 S.W.2d 390 (Tex. 1989).7, 8, 9
Lopez v. Lopez 757 S.W.2d 721 (Tex. 1998)……………………………….10
Mayfield v. Geichert, 437 S.W.2d 638 (Tex. Civ. App.-Dallas, 1979,
no writ)……………………………………………………………………..15
McRoberts v. Tesoro S & L Association, 781 S.W.2d 705 (Tex. App-
San Antonio 1989, writ denied)…………………………………………..11
3
Moore v. Mathis, 369 S.W.2d 450 (Tex. Civ. App.- Eastland 1963,
writ ref’d. n.r.e.)…… …………………………………….…………….….15
Morgan v. Compugraphic Corp. 675 S.W.2d 729 (Tex. 1984……12, 13, 16
Morrow v. H.E.B. Inc., 714 S.W.2d 297 (Tex.1986)………………………12
Peralta Heights Med Ctr., Inc., 485 U.S. 80 (1988) …………………..7, 8 9
State ex rel. Protection of Hoist, 2010 WL 457448 (Tx. App.-
Tyler 2010)………………………………………………………………..10
Stuart v. Whitworth, 453 S.W.2d 875 (Tex. Civ. App. – Houston [1st Dist.]
1970, writ dism’d)…………………………………………………………13
Swafford v. Holman, 446 S.W.2d 75 (Tex. App.-Dallas 1969,
writ ref’d n.r.e.)…………………………………………………………….15
Texas Sting v. R.B. Foods, Inc. 82 S.W.3d 644 (Tex. App.- San Antonio,
2002, rev. denied)………………………………………………..…….10, 12
Tunstill v. Scott, 160 S.W.2d 65 (Tex. 1942)…………………………..….13
Wilson v. Wilson, 132 S.W.3d 533, (Tex. App.-Hou. [1st dist.] 2004,
rev. denied)………………………………………………………………….7
Womack v. Berry, 291 S.W.2d 677 (Tex. 1956). ………………………11, 14
RULES
Bankruptcy Code, 11 U.S. Code §108 (c)…………………………………..6
4
I.
OBJECTION TO APPELLEE’S STATEMENT OF FACTS AND
INTRODUCTION
Appellant objects to the assertion in Appellee’s Brief (at page xi at the
bottom of the page) that the original cause has been tried with result of “Final
Judgment”, referencing Appellee’s Appendix 1, when in fact such judgment is not
final as pointed out in Paragraph IV below.
II.
APPELLANT’S WAIVER OF SPECIAL APPEARANCE ERROR
After consideration of Appellee’s Brief, and further research, Appellant
concedes that Appellant’s Special Appearance was waived.
III.
SUMMARY OF ARGUMENT
For reply, Appellant emphasizes that Special Appearance was defective,
however it was an appearance. Thus the Default Judgment without notice to him
was error. After appearance, as a matter of due process, he was entitled to notice.
In addition, Appellant properly filed motion for new trial raising the required
Craddock issues. There were no affidavits or evidence offered to controvert
affidavit and as a matter of law the Craddock elements were presumed and new
trial should have been granted.
Severance of the erroneous Default Judgment is clearly error in that the
claim of which the Default Judgment was granted is completely interwoven with
5
remaining causes against other Defendants, the liability as to each of the three
Defendants are identical, the damages are identical and there were no judicial
economy to be served or delay to be avoided.
IV.
REPLY TO ASSERTION THIS APPEAL IS MOOT
Appellee asserts that this appeal is moot because a final judgment has been
entered in the remaining portion of the severed cause. This assertion is simply
false. The judgment against the remaining Defendants is not final. The judgment
against the remaining Defendants was signed June 30, 20151. Within 30 days
thereof, on July 23, 2015 the Defendant E. Peter Healey filed bankruptcy in Cause
No. 15-60471 in the United States Bankruptcy Court for the Eastern District of
Texas2. The Bankruptcy Code, 11 U.S. Code §108 (c)3 specifically provides:
(c) Except as provided in section 524 of this title, if applicable
nonbankruptcy law, an order entered in a nonbankruptcy proceeding,
or an agreement fixes a period for commencing or continuing a civil
action in a court other than a bankruptcy court on a claim against the
debtor, or against an individual with respect to which such individual
is protected under section 1201 or 1301 of this title, and such period
has not expired before the date of the filing of the petition, then such
period does not expires until the later of –
(1) the end of such period, including any suspension of such period
occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay
under section 362, 922, 1201 or 1301 of this title, as the case may
be, with respect to such claim.
1
Appellant’s Appendix 1
2
Bankruptcy Petition Supplemental C.R., Reply Appendix page 21, Supplemental C.R. page _____
3
Reply Appendix page 20, Supplemental C.R. page _______
6
Relief from Stay was granted (on November 16, 2015) for appeal4 with
specific provision for pursuing appeal of the “Final Judgment”5. Motion for
new trial will be filed within the 30 days allowed and an appeal pursued if
necessary, and a new trial will be granted.
Thus quite clearly, the judgment against the remaining Defendants is not
final and this appeal is not moot.
V.
REPLY TO ASSERTION THAT DEFAULT JUDGMENT WAS PROPER
The Trial Court’s granting of default judgment6 against Appellee without
notice was error. Even if Appellee’s Special Appearance was defective, waived or
denied it was an appearance7. It is fundamental that after an appearance, a party is
entitled to notice as a matter of due process. Wilson v. Wilson 132 S.W.3d 533
(Tex.App.-Hou. [1st Dist.] 2004 rehearing denied), citing Peralta Heights Med.
Ctr., Inc. 485 U.S. 80 (1988) and LBL Oil Co., v. Int’l Power Serv. Inc. 777 S.W.2d
390 (Tex. 1989). This principal is conceded and urged by Appellee in his brief on
page 15 under the heading “The Default Judgment Was proper Because Mark’s
Improper Filed Special Appearance Was At Most A General Appearance
Without An Answer.”
Notice to a Defendant who has appeared includes notice of default. In Re
J.P., 196 S.W.3d 434 (Tex. App.-Dallas 2006). In case of LBL Oil Co., supra a post
4
Reply Appendix page 24, Supplemental C.R. Reply page _____
5
Appellant’s Appendix 1
6
Default Judgment, C.R. page 386
7
Special Appearance, C.R. page 384
7
appearance default judgment was entered without notice to the Defendant. The
Defendant had filed a Motion To Dismiss alleging no jurisdiction and a mistake as
to its identity as the proper party. Motion for Default Judgment was filed without
certificate of service on LBL and default judgment was granted. The Supreme
Court specifically pointed out that the default without notice was in conflict with
Peralta, supra. The Peralta case specifically holds that after appearance, notice
was required as a matter of due process.
In the case at bar, Appellant’s Special Appearance8 was filed prior to the
Default Judgment9. Another Defendant, E. Peter Healey, specifically objected to
the Motion For Default and hearing was set on that motion10. However, Default
was granted by trial court prior to and without such hearing11.
In case at bar, motion for default is without a certificate of service on
Appellant and the record clearly shows that there was no notice to Appellant 12.
The fact of no notice to Appellant is not in dispute. Yet, Appellee asserts on page
13 of his brief “Defendant received all notice to which he was entitled when he
was served with process”. For this absurd assertion, Appellee cites Continental
Carbon Co. v. Sea-Land Services, Inc.., 27 S.W.3d 194 (Tex. App. Dallas 2000, rev.
8
Special Appearance filed November 20, 2014, C.R. page 384
9
Default Judgment signed November 25, 2014, C.R. page 386
10
Response to Motion for Default, C.R. page 379 and Docket Sheet, Appellant’s Appendix page 40.
11
Plaintiff’s Motion For Default Judgment against Mark J. Healey, CR page 374 at Page 376 and RR page 6, line 23
to page 7 line 5.
12
Plaintiff’s Motion For Default Judgment against Mark J. Healey, CR page 374 at Page 376 and RR page 6, line 23
to page 7 line 5.
8
denied). However, a reading of the Continental Carbon case clearly discloses that
there was no appearance by the Defendant, rather the Defendant failed to answer or
appear. In its decision the Court specifically cited Peralta, supra and noticed the
holding of the LBL Oil case that “notice is required regarding a hearing on post-
appearance motion for default judgment”.
Appellant also cites Butler v. Butler 577 S.W.2d 581 (Tex. Civ. App-
Texarkana 1978, writ dismissed 1979). However in that case, the issue of notice
was not raised and apparently not asserted as error. It should also be noted that the
holding in the Butler case has not been cited as authority. From the facts recited,
apparently the default was entered immediately after hearing which resulted in
overruling the challenge to jurisdiction. It appears that the Defendant was present
for the default.
VI.
REPLY TO CRADDOCK ISSUES
The failure to set aside the default judgment was further error because
Appellant properly raised the issues set forth in Craddock v. Sunshine Bus Lines,
133 S.W.2d 124 (Tex. 1939)13.
There was no reply or controverting affidavit to Appellant’s Motion For
New Trial raising fact issues. Thus uncontroverted, Appellant’s affidavit is taken
as true. Director State Employees, Workers’ Compensation Div. v. Evans, 889
13
CR page 390
9
S.W.2d 266 (Tex. 1994). Further, the records show no controverting evidence14.
State ex rel. Protection of Hoist, 2010 WL 457448 (Tx. App.-Tyler 2010).
Fundamentally, without required notice, there cannot be conscious indifference.
Texas Sting v. R.B. Foods, Inc. 82 S.W.3d 644 (Tex. App.- San Antonio, 2002, rev.
denied), citing Lopez v. Lopez 757 S.W.2d 721 (Tex. 1998).
As a further matter, the default judgment was granted without hearing on the
cause of action for money had and received15. The damages were not liquidated
and there was no hearing or evidence offered. Damages are not liquidated unless
proved by a written instrument such that the amount of damages can be accurately
calculated by the trial court Kao Holdings, Lt. v. Young, 214 S.W.3d 504 (Tex. App.
Hou. [14th Dist. 2006].
VII.
REPLY TO ASSERTION THAT APPELLANT DID NOT PRESERVE
ERROR RE: SEVERANCE
Appellee asserts that Appellant did not object to the severance16. This
statement is simply false. Defendant, E. Peter Healey by written motion objected
to the severance and Appellant joined in such motion17.
14
R.R. Hearing on Motion For New Trial page 4 to 23, Appendix to Appellant’s Brief page 36
15
id.
16
Order of Severance, C.R. Page 434
17
C.R. page 379 and R.R. Hearing on Motion For New Trial, Appendix to Appellant’s Brief page 36, Page 5 line 13
& page 24 to 27
10
VIII.
REPLY TO ASSERTION THAT SEVERANCE WAS PROPER AND
HARMLESS
Clearly, a trial court has broad discretion in a matter of severance. Womack
v. Berry, 291 S.W.2d 677 (Tex. 1956). However, the Court in Womack pointed out:
But the Court is not vested with unlimited discretion, and is
required to exercise a sound and legal discretion within limits created
by the circumstances of the particular case. The express purpose of
the rule is to further convenience and avoid prejudice, and thus
promote the ends of justice.
It is likewise clearly established that claims are properly severable if (1) the
controversy involves more than one cause of action, (2) the severed claims is one
that would be the proper subject of the lawsuit if independently asserted, and (3)
the severed claim is not so interwoven with any remaining action that they involve
the same facts and issues. Guaranty Federal Savings Bank v. Horseshoe
Operating Co., 793 S.W.2d 652 (Tex. 1990). Severance is not permitted, when
injuries are indivisible. Landers v. East Tex. Saltwater Disposal Co., 248 SW2d,
731 (Tex. 1952). Likewise, the Court should not severe the cause of action against
several Defendants for the same liability, such as severance of the cause of action
against the maker and guarantor of a note. McRoberts v. Tesoro S & L
Association, 781 S.W.2d 705 (Tex. App-San Antonio 1989, writ denied).
Clearly, the cause of action asserted against Appellant for money had and
received, allegedly held in a joint bank account by three Defendants which
11
included Appellant18. The default judgment was only on this claim19. The injury
claimed is clearly indivisible as to the three Defendants. The liability was the same
as to each Defendant. The damage is indivisible. Obviously, the facts were
completely interwoven. The severance was an abuse of discretion as a failure to
follow established rules of law. Texas Sting, Ltd. v. R.B. Foods, Inc., 82 SW3rd
644 (Tex. App.-San Antonio; Morrow v. H.E.B. Inc., 714 S.W.2d 297 (Tex.1986).
To avoid the clear president Appellant cites Morgan v. Compugraphic
Corp., 675 S.W.2d 729 (Tex. 1984). To appreciate and properly apply the Morgan
case, the opinion along with the Court’s citation to authority must be closely read.
In the Morgan case, the Plaintiff asserted injuries from exposure to
chemicals leaking from a type setting machine. The leaks in the type setter were
discovered and repaired, but the opinion does not disclose as to whether the repair
was by the manufacturer or installer. The manufacturer answered and the installer
(Compugraphic) did not. Default judgment and severance were granted.
Most significantly, the Court in Morgan held:
Even if the trial court’s severance were error, it would not be error
that “was reasonably calculated to cause and probably did cause the
rendition of an improper judgment in the case”.
It is thus to be assumed that there were provisions or circumstances that prevented
double recovery or other harm. In the case at bar, there is no provision to prevent
18
Plaintiff’s 1st Amended Petition, Paragraph 20, C.R. page 247
19
Default Judgment, C.R. page 386
12
double recovery and double recovery in fact results20. There is no provision for
credit to Appellant for sums recovered from other Defendants on the same liability
in either judgment.
As support for the proposition of severance for venue purposes, the Morgan
Court cited Tunstill v. Scott, 160 S.W.2d 65 (Tex. 1942) and Stuart v. Whitworth,
453 S.W.2d 875 (Tex. Civ. App. – Houston [1st Dist.] 1970, writ dism’d). The
Tunstill case involved land but the Court found that the suit was primarily for the
recovery of damages and the transfer to the county of the location of the land was
error because there were no pleading to support such relief. In the Stuart case, the
Court noted that the land was not an issue, as all Defendants had filed disclaimers,
and again the pleadings did not raise appropriate issues.
For the proposition that given an individual injury on acts of two Defendants
could proceed to judgment against any one Defendant separately or against all, the
Morgan Court cites Landers v. East Tex. Saltwater Disposal Co., 248 S.W.2d 731
(Tex. 1952) and Kansas University Endowment Association v. King, 350 S.W.2d 11
(Tex. 1961). In the Landers case, the primary focus was the reversal of prior
decisions holding that suit against multiple Defendants could not be maintained
separately when each acted independently, without concert of action and the fact
that it was difficult to attribute to damages to each Defendant individually was not
20
Default Judgment, C.R. page 386 and Final Judgment Appellee Appendix 1
13
controlling. The case involved a spill of saltwater into a pond from two separate
pipelines with damages inseparable. However, the Trial Court’s severance of the
two Defendants was reversed and remanded. In the Kansas case, primary focus of
the Court was the distinction between separate trial and severance. The case
involved a subdivision of land which had not been staked on the ground with a
result that there was not sufficient area for all lots designated on paper. The Trial
Court severed issues of the boundary from issues of specific lot locations. The
Supreme Court reversed the severance stating “The Order of Severance fragments
the case instead of spilling it along proper lines of cleavage” and instructed the trial
court to adjudicate all claims, “many of which are interwoven and dependent on
each other”. The Court also reiterated the principal that severance is proper only
where two or more separate distinct causes of action are asserted.
For the principal of discretion in the trial court in severance, the Court
decided in Womack v. Berry 291 S.W.2d 677 (Tex. 1956). This case involves
separate trial not severance. As pointed out in the Kansas University case, supra
severance is absolutely a separate cause with a final judgment while separate trials
result in only one final judgment, thus avoiding inconsistencies and double
recovery. The Womack case as pointed, out above, also clearly makes the point
that the discretion of the trial court is subject to sound, legal reasoning, based on
established principals.
14
In support of severance for judicial economy, the Court cited Mayfield v.
Geichert, 437 S.W.2d 638 (Tex. Civ. App.-Dallas, 1979, no writ); Swafford v.
Holman, 446 S.W.2d 75 (Tex. App.-Dallas 1969, writ ref’d n.r.e.) and Moore v.
Mathis, 369 S.W.2d 450 (Tex. Civ. App.- Eastland 1963, writ ref’d, n.r.e.). In the
Mayfield case, defamation was asserted by one physician against two others and
Methodist Hospital. After jury trial, the Court severed and granted judgment jnov,
severed one Defendant physician from the cause against the other and the hospital,
declared a mistrial as to the severed physician and granted judgment in favor of the
remaining physician and the hospital. The Supreme Court observed that the
hospital and the physician dismissed from liability and were found by the jury to
have qualified privilege. Quite obviously, the Supreme Court found no harm in the
severance. In the Swafford case, suit was brought against the finance company and
its attorneys. The Trial Court severed the suit against the attorneys from the suit
against the finance company and summary judgment was granted in favor of the
attorneys. It is obvious that the Appellate Court found no harm in the severance
given the summary judgment and the failure to properly preserve and present
issues regarding the summary judgment. In the Moore, the case involved default
judgment and severance, sought to be set aside or defeated by injunction against
enforcement and bill of review. The Court noted:
Severance of the cause of action against Moore from that against the
remaining Defendants was within the power and jurisdiction of the
15
Court. Even if such action was erroneous, the judgment was final and
appealable.
The court went on to point out that the bill of review was not properly supported.
In Morgan as cited by Appellee, the cases as cited by Court simply do not
conflict with the fundamental rules regarding severance but are in support of the
established principals. As pointed out the Morgan Court stated:
Even if the trial court’s severance were error, it would not be error
that “was reasonably calculated to cause and probably did cause the
rendition of an improper judgment in the case”.
In the case before the Court there was no advantage to be served by the
severance and considerable harm. Severance is inappropriate because the facts are
interwoven and inappropriate because the asserted liability is the same and the
damage is indivisible21. Double recovery fact resulted in that the default judgment
against Appellant has no provision for offset or credit for judgment or recovery
from the remaining Defendants22. There was no judicial economy or convenience
served or delays to be avoided as the matter was tried the following June23. The
default entry could easily have been left interlocutory with only one final judgment
entered. Severance served no purpose.
21
The Default Judgment (C.R. page 386) was based upon the claim of money had and received which was asserted
against Appellant and other Defendants for money held in an account which any two of Appellants or the other
Defendants had signature authority. Plaintiff’s First Amended Petition, Paragraph 20, C.R. page 247, and see
Appellant’s Brief, page xi.
22
Default Judgment C.R. page 386 and Final Judgment Appellee Appendix 1
23
id.
16
IX.
CONCLUSION & PRAYER
WHEREFORE, because the granting of the Default Judgment was error and
the Severance of the Default Judgment was in error, this cause should be reversed
and remanded for a new trial and such other and further appropriate relief should
be granted.
Respectfully submitted,
STARK & GROOM, LLP
/s/ Steve Stark
Steve Stark
State Bar No. 19066000
110 East Corsicana Street
Athens, Texas 75751
Phone: (903) 675-5691
Fax: (903) 675-6454
Email: stevestark@starkandgroom.com
Attorney for Appellant
17
CERTIFICATE OF COMPLIANCE and
CERTIFCATE OF SERVICE
This certifies that the undersigned has reviewed this Reply Brief of
Appellant and concluded that every factual statement in it is supported by
competent evidence, and that the documents included in the Appellant’s Appendix
are true and correct copies of the original papers and that this document is in Times
New Roman 14, contains 3490 words, and Appellant’s Brief contained 1,982
words, as indicated by the word count function of the computer program used to
prepare it, excluding the caption, table of contents, index of authorities, index of
appendix, signature, proof of service, certification, certificate of compliance, and
appendix and I, the undersigned attorney, hereby certify that a true and correct
copy of the foregoing Reply Brief of Appellant and corresponding Appendix was
duly served by email this the 25th day of November, 2015 as follows:
Jennifer Lovelace Via email: jlovelace@lovelacekillen.com
Koy R. Killen Via email:kkillen@lovelacekillen.com
Lovelace Killen P.L.L.C.
104 South Main Street
Burleson, Texas 76028
/s/ Steve Stark_____________
Steve Stark
Attorney for Appellant
18