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CAUSE NO. 13944
STEVE SCOTT IN THE DISTRICT COURT
JUDICIAL DISTRICT
FACTORY APPLIANCE SERVICE, LLC MONTGOMERY COUNTY, TEXAS
DEFENDANT’S MOTION FOR NEW TRIAL
AND TO SET ASIDE DEFAULT J] UDGMENT
COMES NOW, DEFENDANT, FACTORY APPLIANCE SERVICE, LLC, and files
this Motion for New Trial and to Set Aside Default J udgment and for cause would show
the following:
BACKGROUND
Plaintiff filed his Original Petition on October 6, 2021. A request for service was
filed on October 7, 2021, requesting service by certified mail by the District Clerk. On
J anuary 31, 2022, Plaintiff filed a motion for default judgment. On February , 2022, this
court entered a default judgment against Defendant.
AUTHORITY
Defendant's motion for new trial is timely filed pursuantto Rule 329(b). To setaside
a default judgment, a defendant must prove three elements: (1) that the failure to timely
answer was not intentional, or the result of conscious indiffe e (2) the motion for new
trial sets up a meritorious defense and (3) the motion is filed at a time when the granting
thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124 (1939) If the defendant
did not appear because
the suit papers were never received, then the court should generally set aside the default
judgment. Id. A default judgment is void unless the defendant (1) was served with process
in strict compliance with the law, (2) accepted or waived service, or (3) made an
appearance. TEX. R. CIV. PROC. 124; Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.
Houston [1st Dist.] 1999, no pet.).
ARGUMENT
Plaintiff filed their motion for default judgment without showing when service was
affected. Plaintiff requested that service through the district clerk by certified mail on
October 21, 2021. There is no return of service on file in this case. Defendant did not
receive service through certified mail. (See attached unsworn declaration). The first time
that this defendant learned of this lawsuit was when the Court sent a letter notifying
defendant of the J udgment.
WHEREFORE, DEFENDANT, FACTORY APPLIANCE SERVICE, LLC, prays that
the Court grant the Motion to Set Aside the February 1, 2022, default judgment and
reinstates the matter on the Court's active docket and for such and further reliefto which
Defendant may be entitled.
Respectfully submitted,
Is] Weide Fo Qunn
a—--- i
Wade R. Quinn
TBA No. 16433600
Ashley Ramos
TBA No. 24094096
Ramey, Chandler, Quinn & Zito, PC
750 Bering Drive, Suite 600
Houston, Texas 77057
266 0074
Fax: 713 266 1064
wquinn@ ramey chandler.com
aramos@ ramey chandler.com
Attorneys for Defendant,
Factory Appliance Service, LLC
Certificate of Service
| hereby certify that a true and correct copy of the foregoing instrument was served
upon the parties listed below by facsimile, certified mail, return receipt requested, first
class U.S. mail, electronic mail by the clerk of the court, and/or by messenger on March
3, 2022.
's| Wade
PF Qunn
Wade R. Quinn
Mark A. Solomon
Matthiesen, Wickert & Lehrer, S.C.
7703 N. Lamar, Suite 104
Austin, Texas 78752
CAUSE NO. 21-10-13944
STEVE SCOTT IN THE DISTRICT COURT
284'4 JUDICIAL DISTRICT
FACTORY APPLIANCE SERVICE, LLC § MONTGOMERY COUNTY, TEXAS
UNSWORN DECLARATION
|, Dorothy Sanchez, declare, certify, verify and stat that the following is true:
My name is Dorothy Sanchez, | am over the age of twenty-one (21) and am in all
ways competent to make this declaration. | am the office manager for FACTORY
APPLIANCE SERVICE, LLC.
Jamie Sanchez is the owner and registered agent for FACTORY APPLIANCE
SERVICE, LLC.
FACTORY APPLIANCE SERVICE, LLC has not been served with Citation as
represented by Plaintiff.
The first time | learned of this lawsuit was when | received the letter from the Court
notifying of the default judgment. | intend to defend the claims brought in this
lawsuit.
| declare, certify, verify, and state under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.
Executed this 3 day of March, 2022.
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CAUSE NO. 13944 STEVE SCOTT IN THE DISTRICT COURT JUDICIAL DISTRICT FACTORY APPLIANCE SERVICE, LLC MONTGOMERY COUNTY, TEXAS DEFENDANT’S MOTION FOR NEW TRIAL AND TO SET ASIDE DEFAULT J] UDGMENT COMES NOW, DEFENDANT, FACTORY APPLIANCE SERVICE, LLC, and files this Motion for New Trial and to Set Aside Default J udgment and for cause would show the following: BACKGROUND Plaintiff filed his Original Petition on October 6, 2021. A request for service was filed on October 7, 2021, requesting service by certified mail by the District Clerk. On J anuary 31, 2022, Plaintiff filed a motion for default judgment. On February , 2022, this court entered a default judgment against Defendant. AUTHORITY Defendant's motion for new trial is timely filed pursuantto Rule 329(b). To setaside a default judgment, a defendant must prove three elements: (1) that the failure to timely answer was not intentional, or the result of conscious indiffe e (2) the motion for new trial sets up a meritorious defense and (3) the motion is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (1939) If the defendant did not appear because the suit papers were never received, then the court should generally set aside the default judgment. Id. A default judgment is void unless the defendant (1) was served with process in strict compliance with the law, (2) accepted or waived service, or (3) made an appearance. TEX. R. CIV. PROC. 124; Min v. Avila, 991 S.W.2d 495, 500 (Tex. App. Houston [1st Dist.] 1999, no pet.). ARGUMENT Plaintiff filed their motion for default judgment without showing when service was affected. Plaintiff requested that service through the district clerk by certified mail on October 21, 2021. There is no return of service on file in this case. Defendant did not receive service through certified mail. (See attached unsworn declaration). The first time that this defendant learned of this lawsuit was when the Court sent a letter notifying defendant of the J udgment. WHEREFORE, DEFENDANT, FACTORY APPLIANCE SERVICE, LLC, prays that the Court grant the Motion to Set Aside the February 1, 2022, default judgment and reinstates the matter on the Court's active docket and for such and further reliefto which Defendant may be entitled. Respectfully submitted, Is] Weide Fo Qunn a—--- i Wade R. Quinn TBA No. 16433600 Ashley Ramos TBA No. 24094096 Ramey, Chandler, Quinn & Zito, PC 750 Bering Drive, Suite 600 Houston, Texas 77057 266 0074 Fax: 713 266 1064 wquinn@ ramey chandler.com aramos@ ramey chandler.com Attorneys for Defendant, Factory Appliance Service, LLC Certificate of Service | hereby certify that a true and correct copy of the foregoing instrument was served upon the parties listed below by facsimile, certified mail, return receipt requested, first class U.S. mail, electronic mail by the clerk of the court, and/or by messenger on March 3, 2022. 's| Wade PF Qunn Wade R. Quinn Mark A. Solomon Matthiesen, Wickert & Lehrer, S.C. 7703 N. Lamar, Suite 104 Austin, Texas 78752 CAUSE NO. 21-10-13944 STEVE SCOTT IN THE DISTRICT COURT 284'4 JUDICIAL DISTRICT FACTORY APPLIANCE SERVICE, LLC § MONTGOMERY COUNTY, TEXAS UNSWORN DECLARATION |, Dorothy Sanchez, declare, certify, verify and stat that the following is true: My name is Dorothy Sanchez, | am over the age of twenty-one (21) and am in all ways competent to make this declaration. | am the office manager for FACTORY APPLIANCE SERVICE, LLC. Jamie Sanchez is the owner and registered agent for FACTORY APPLIANCE SERVICE, LLC. FACTORY APPLIANCE SERVICE, LLC has not been served with Citation as represented by Plaintiff. The first time | learned of this lawsuit was when | received the letter from the Court notifying of the default judgment. | intend to defend the claims brought in this lawsuit. | declare, certify, verify, and state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 3 day of March, 2022.