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CAUSE NO. 23-03-03178
KEVIN MANZANARES IN THE DISTRICT COURT
VASQUEZ
Plaintiff
vs. 457th JUDICIAL DISTRICT
DEISI MARIBEL BACA
CASTILLO MONTGOMERY COUNTY, TX
Defendant
PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT
DEISI MARIBEL BACA CASTILLO
Plaintiff, Kevin Manzanares Vasquez, files this move this Court pursuant to Texas Rule of
Civil Procedure 239 to sign a default judgment against Defendant Deisi Maribel Baca Castillo, and
in support of this Motion for Default Judgment would respectfully show unto this Honorable Court
the following:
FACTS & PROCEDURAL BACKGROUND
On or about October 11, 2021, Plaintiff was a traveling in his vehicle, heading eastbound
near the 400 block of Foster Drive in Montgomery County, Texas. Deisi Maribel Baca Castillo
was traveling northbound near the 1800 block of S First Street. At this point, Foster Drive and S
First Street form an intersection. As Plaintiff neared this intersection, Defendant failed to yield the
right of way and slammed into Plaintiff’s vehicle. he collision occurred as a direct and proximate
result of Defendant’s negligence.
The investigating officer described how the collision occurred in his Narrative and Field
Diagram:
The investigating officer also cited Defendant for causing the crash:
Nothing Plaintiff did or failed to do caused the Collision. Rather, the negligence of
Defendant that proximately caused the occurrence and Plaintiff’s resulting injuries and damages.
Defendant owed Plaintiff a duty to exercise ordinary care. Defendant failed in that respect,
which caused and resulted in the injuries and damages sustained by Plaintiff.
Timeline
On March 1, 2023, Plaintiff filed their original petition in this suit against Defendant
because of the above-referenced Collision.
Citation was issued on March 1, 2023 by Melissa Miller, District Clerk of Montgomery
County, Texas to Defendant Deisi Maribel Baca Castillo with process at her home at the following
address: 300 S Sandra Street, Conroe Texas 77301.
Defendant Deisi Maribel Baca Castillo was served with citation and with a copy of
Plaintiff’s Original Petition in this cause on March 7, 2023, thus making its answer date April 3,
, but Defendant Deisi Maribel Baca Castillo has failed to file an answer or any other pleading
constituting an answer.
The executed citation upon Defendant Deisi Maribel Baca Castillo was filed in the record
of this Court on March 8, 2023.
Therefore, the citation and proof of service have been on file with the court of the court at
least ten days, excluding the date of filing and today. See Tex. R. Civ. P. 107.
Defendant Deisi Maribel Baca Castillo’s last known address is 300 S Sandra Street, Conroe
Texas 77301.
Defendant Deisi Maribel Baca Castillonot a member of the military.
Argument & Authorities
A plaintiff’s petition will support a default judgment if the petition: (1) states a cause of
action within the jurisdiction of the court, (2) gives fair notice to defendant(s) of the claims
asserted, and (3) does not affirmatively disclose the invalidity of the claim on its face. Jackson v.
Biotronics, Inc., 937 S.W.2d 38, 41 (Tex. App.Houston [14th Dist.] 1996, no writ). A review
of Plaintiff s Original Petition attached as Exhibit 1 confirms that it meets all three of these
requirements.
The Court may render a default judgment on the pleadings against a defendant that has not
filed an answer. Tex. R. Civ. P. 239. A defendant who defaults admits all allegations of facts in
the plaintiff’s petition except unliquidated damages. Argyle Mech., Inc. v. Unigus Steel, Inc., 156
S.W.3d 685, 687 (Tex. App.Dallas 2005, no pet.); Jackson v. Biotronics, Inc., 937 S.W.2d 38,
41 (Tex. App.Houston [14th Dist.] 1996, no writ); Norton v. Martinez, 935 S.W.2d 898, 901
(Tex. App.San Antonio 1996, no writ). After a no answer default, the only claim the plaintiff
is required to prove is for unliquidated damages. Tex. R. Civ. P. 243; see Zuyus v. No’Mis Comm.,
930 S.W.2d 743, 747 (Tex. App.Corpus Christi 1996, no writ); Herbert v. Greater Gulf Coast
Enters., 915 S.W.2d 866, 872 (Tex. App.—Houston [1st Dist.] 1995, no writ.).
The plaintiff may ask for a default judgment when the defendant’s deadline to file an
answer has expired, and the citation and proof of service have been on file with the clerk at least
ten (10) days, not counting the day of filing and the day of judgment. Tex. R. Civ. P. 107; Union
Pac. Corp. v. Legg, 49 S.W.3d 72, 78 (Tex. App.—Austin 2001, no pet.).
Plaintiffs are entitled to a default judgment on liability. If a defendant fails to answer and
or otherwise appear and the plaintiff has met all other requirements for entry of a default judgment,
the defaulting defendant(s) is deemed to have admitted all facts properly pleaded and the justice
of the plaintiff’s claims except for claims of unliquidated damages, so that both the truth of the
facts set out in the petition and the defendant’s liability on any cause of action properly alleged by
those facts is conclusively established. Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex.
1984); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). The court can award damages
based on affidavits, live testimony, or documents. If the plaintiff relies solely on affidavit evidence
to prove unliquidated damages, the affidavit must establish a causal nexus.
IV.
laintiff s Damages
Portions of Plaintiff s damages in this matter are unliquidated. Therefore, pursuant to
Texas Rule of Civil Procedure 243, Plaintiff respectfully requests that this Court set a hearing on
this Motion for Default Judgment and, during such hearing, allow Plaintiff an opportunity to
introduce evidence to establish the amount of his damages. Plaintiff further requests that a court
reporter be available to record the proceedings.
Because of the actions and conduct of Defendant set forth above, Plaintiff w injured. By
reason of those injuries and the damages flowing in law therefrom, this suit is maintained. Because
of the nature and severity of the injuries sustained by Plaintiff, he has suffered mental anguish and,
in reasonable probability, will continue to suffer mental anguish in the future.
Additionally, because of the nature and severity of his injuries, Plaintiff required medical
treatment in the past. The reasonable and necessary charges for such medical treatment rendered
to Plaintiff were made necessary by his injuries in the incident as a result of the negligence of
Defendant.
CONCLUSION & PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Kevin Manzanares Vasquez
respectfully requests that this Honorable Court enter a default judgment against Defendant Deisi
Maribel Baca Castillo for her failure to timely answer or otherwise make an appearance in this
matter; award Plaintiff damages as pled for in their Original Petition; and award Plaintiff any and
all such other and further relief to which they may show himself justly entitled, whether at law or
in equity.
Respectfully submitted,
ORALES AW IRM
By: /s/ Moises Morales
Moises Morales III
State Bar No. 24098137
2801 Rosewood St.
Houston, Texas 77004
Tel: (832) 245 5597
Fax: (832) 202 2747
ECF: litigation@moraleslawfirm.net
ATTORNEYS FOR PLAINTIFF
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CAUSE NO. 23-03-03178 KEVIN MANZANARES IN THE DISTRICT COURT VASQUEZ Plaintiff vs. 457th JUDICIAL DISTRICT DEISI MARIBEL BACA CASTILLO MONTGOMERY COUNTY, TX Defendant PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT DEISI MARIBEL BACA CASTILLO Plaintiff, Kevin Manzanares Vasquez, files this move this Court pursuant to Texas Rule of Civil Procedure 239 to sign a default judgment against Defendant Deisi Maribel Baca Castillo, and in support of this Motion for Default Judgment would respectfully show unto this Honorable Court the following: FACTS & PROCEDURAL BACKGROUND On or about October 11, 2021, Plaintiff was a traveling in his vehicle, heading eastbound near the 400 block of Foster Drive in Montgomery County, Texas. Deisi Maribel Baca Castillo was traveling northbound near the 1800 block of S First Street. At this point, Foster Drive and S First Street form an intersection. As Plaintiff neared this intersection, Defendant failed to yield the right of way and slammed into Plaintiff’s vehicle. he collision occurred as a direct and proximate result of Defendant’s negligence. The investigating officer described how the collision occurred in his Narrative and Field Diagram: The investigating officer also cited Defendant for causing the crash: Nothing Plaintiff did or failed to do caused the Collision. Rather, the negligence of Defendant that proximately caused the occurrence and Plaintiff’s resulting injuries and damages. Defendant owed Plaintiff a duty to exercise ordinary care. Defendant failed in that respect, which caused and resulted in the injuries and damages sustained by Plaintiff. Timeline On March 1, 2023, Plaintiff filed their original petition in this suit against Defendant because of the above-referenced Collision. Citation was issued on March 1, 2023 by Melissa Miller, District Clerk of Montgomery County, Texas to Defendant Deisi Maribel Baca Castillo with process at her home at the following address: 300 S Sandra Street, Conroe Texas 77301. Defendant Deisi Maribel Baca Castillo was served with citation and with a copy of Plaintiff’s Original Petition in this cause on March 7, 2023, thus making its answer date April 3, , but Defendant Deisi Maribel Baca Castillo has failed to file an answer or any other pleading constituting an answer. The executed citation upon Defendant Deisi Maribel Baca Castillo was filed in the record of this Court on March 8, 2023. Therefore, the citation and proof of service have been on file with the court of the court at least ten days, excluding the date of filing and today. See Tex. R. Civ. P. 107. Defendant Deisi Maribel Baca Castillo’s last known address is 300 S Sandra Street, Conroe Texas 77301. Defendant Deisi Maribel Baca Castillonot a member of the military. Argument & Authorities A plaintiff’s petition will support a default judgment if the petition: (1) states a cause of action within the jurisdiction of the court, (2) gives fair notice to defendant(s) of the claims asserted, and (3) does not affirmatively disclose the invalidity of the claim on its face. Jackson v. Biotronics, Inc., 937 S.W.2d 38, 41 (Tex. App.Houston [14th Dist.] 1996, no writ). A review of Plaintiff s Original Petition attached as Exhibit 1 confirms that it meets all three of these requirements. The Court may render a default judgment on the pleadings against a defendant that has not filed an answer. Tex. R. Civ. P. 239. A defendant who defaults admits all allegations of facts in the plaintiff’s petition except unliquidated damages. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.Dallas 2005, no pet.); Jackson v. Biotronics, Inc., 937 S.W.2d 38, 41 (Tex. App.Houston [14th Dist.] 1996, no writ); Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.San Antonio 1996, no writ). After a no answer default, the only claim the plaintiff is required to prove is for unliquidated damages. Tex. R. Civ. P. 243; see Zuyus v. No’Mis Comm., 930 S.W.2d 743, 747 (Tex. App.Corpus Christi 1996, no writ); Herbert v. Greater Gulf Coast Enters., 915 S.W.2d 866, 872 (Tex. App.—Houston [1st Dist.] 1995, no writ.). The plaintiff may ask for a default judgment when the defendant’s deadline to file an answer has expired, and the citation and proof of service have been on file with the clerk at least ten (10) days, not counting the day of filing and the day of judgment. Tex. R. Civ. P. 107; Union Pac. Corp. v. Legg, 49 S.W.3d 72, 78 (Tex. App.—Austin 2001, no pet.). Plaintiffs are entitled to a default judgment on liability. If a defendant fails to answer and or otherwise appear and the plaintiff has met all other requirements for entry of a default judgment, the defaulting defendant(s) is deemed to have admitted all facts properly pleaded and the justice of the plaintiff’s claims except for claims of unliquidated damages, so that both the truth of the facts set out in the petition and the defendant’s liability on any cause of action properly alleged by those facts is conclusively established. Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). The court can award damages based on affidavits, live testimony, or documents. If the plaintiff relies solely on affidavit evidence to prove unliquidated damages, the affidavit must establish a causal nexus. IV. laintiff s Damages Portions of Plaintiff s damages in this matter are unliquidated. Therefore, pursuant to Texas Rule of Civil Procedure 243, Plaintiff respectfully requests that this Court set a hearing on this Motion for Default Judgment and, during such hearing, allow Plaintiff an opportunity to introduce evidence to establish the amount of his damages. Plaintiff further requests that a court reporter be available to record the proceedings. Because of the actions and conduct of Defendant set forth above, Plaintiff w injured. By reason of those injuries and the damages flowing in law therefrom, this suit is maintained. Because of the nature and severity of the injuries sustained by Plaintiff, he has suffered mental anguish and, in reasonable probability, will continue to suffer mental anguish in the future. Additionally, because of the nature and severity of his injuries, Plaintiff required medical treatment in the past. The reasonable and necessary charges for such medical treatment rendered to Plaintiff were made necessary by his injuries in the incident as a result of the negligence of Defendant. CONCLUSION & PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Kevin Manzanares Vasquez respectfully requests that this Honorable Court enter a default judgment against Defendant Deisi Maribel Baca Castillo for her failure to timely answer or otherwise make an appearance in this matter; award Plaintiff damages as pled for in their Original Petition; and award Plaintiff any and all such other and further relief to which they may show himself justly entitled, whether at law or in equity. Respectfully submitted, ORALES AW IRM By: /s/ Moises Morales Moises Morales III State Bar No. 24098137 2801 Rosewood St. Houston, Texas 77004 Tel: (832) 245 5597 Fax: (832) 202 2747 ECF: litigation@moraleslawfirm.net ATTORNEYS FOR PLAINTIFF