Motion for Reconsideration or Rehearing in Walid Haidar,415 Trenton, L.L.C. D/B/A Walk-On's Sports Bistreaux vs. G & G Closed Circuit Events, L.L.C.| Trellis.Law

On April 12, 2021 a Motion,Ex Parte was filed involving a dispute between 415 Trenton, L.L.C. D B A Walk-On'S Sports Bistreaux, Haidar, Walid, and G & G Closed Circuit Events, L.L.C., for CPRC Chapter 12 in the District Court of Hidalgo County.

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Electronically Filed
11/18/2021 5:35 PM
Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

CAUSE NO.: C-1392-21-B

WALID HAIDAR, INDIVIDUALLY, § IN THE DISTRICT COURT
AND AS REPRESENTATIVE OF 415 §
TRENTON, L.L.C. D/B/A WALK- §
ON'S SPORTS BISTREAUX, §
Plaintiffs, §
§ 93rd JUDICIAL DISTRICT
Vs. §
§
G&G CLOSED CIRCUIT EVENTS, §
L.L.C., §
Defendant. § HIDALGO COUNTY, TEXAS

PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THE COURT’S
9/28/2021 ORDER SETTING ASIDE DEFAULT JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Plaintiffs in the above entitled and numbered cause, and file

Plaintiffs’ Motion for Reconsideration of the Court’s 9/28/2021 Order Setting Aside

Default Judgment, and for such consideration, respectfully shows unto the Court, why as a

matter of law, said motion should be granted, and the order vacated, to-wit:

I. THE TRANSCRIPT OF THE HEARING HELD ON PLAINTIFFS’
MOTION FOR DEFAULT JUDGMENT WAS NOT RECEIVED UNTIL
AFTER THE COURT ORDERED POST SUBMISSION BRIEFING TO
BE FILED AND THE RECORD OF SAME CONFIRMS THAT THE
TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION
FOR NEW TRIAL

A. Procedural Background in Support of Motion for Reconsideration

1. On September 20, 2021, the Official Transcript of the July 13th 2021,

Hearing on Plaintiffs’ Motion for Default Judgment was received subsequent to the hearing

held on Defendant’s Motion for New Trial on September 3, 2021 at 9:00 a.m. After the

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

hearing on the Defendant’s Motion for New Trial, the Court ordered the parties to prepare

and file post submission briefing on the issues presented with a deadline of September 10,

2021.

2. During all of the proceedings relating to Defendant’s motion for new trial

filed post entry of the subject Default Judgment signed by this Court on July 20, 2021,

Plaintiffs’ counsel believed, but could not prove since the transcript was not available at

that time, that the Defendant made a general appearance for all purposes and had waived

all defects in service; and therefore, Plaintiffs were left only with the argument that

Defendant, by not formally objecting in writing to defects in service and appearing at the

hearing without filing a an answer, that Defendant was not entitled to a new trial. Plaintiffs

do not waive that argument here, nor its briefed argument that Defendant’s general

appearance during the hearing on Plaintiff’s Motion for Default Judgment without filing

an answer or serving same on counsel for Plaintiffs, but rather intentionally withholding

the answer prepared on behalf of Defendant, G&G Closed Circuit Events, LLC.

ARGUMENT & AUTHORITY

B. The Defendant made a general appearance for all purposes by objecting to
and proffering argument challenging the evidence of Plaintiffs at the hearing
for default judgment and requesting affirmative relief from the Court that the
Motion for Default Judgment be denied.

General Appearance:

3. During the hearing on Plaintiffs’ Motion for Default Judgment when the

case was called by the Court, the following exchange between the Court and Counsel for

Defendant, Mr. David Diaz took place:

MR. DIAZ: I can hear you, Your Honor. Can you hear me?

THE COURT: Yes, sir. Are you involved in this case, Mr. Diaz?

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

MR. DIAZ: Yes, Your Honor. I represent G & G Closed Circuit Events.

I've just been notified of this case.1 I wanted to make an appearance and let you

know that they are represented, and we do intend to defend the case. 2

See, Exhibit A: July 13, 2021 Hearing on Plaintiffs’ Motion for Default Judgment, at P. 4,

L. 14 to L. 22. (Emphasis added).

Objections to Evidence and Request for Affirmative Relief from the Court:

During the hearing on Plaintiffs’ Motion for Default Judgment the following

objections and requests for affirmative relief were made by counsel for Defendants,

MR. DIAZ: . . .And related to the evidence, if you look at Exhibit A and

B, it's only signed by the Defendant. There is --- there is no fully executed

agreement attached as supporting documentation for their default. There are

defenses to be made here. I'm here to make an appearance for the Defendant. . .

See, Exhibit A: July 13, 2021 Hearing on Plaintiffs’ Motion for Default Judgment, at P. 8,

L. 3 to L. 8. (Emphasis added). At the conclusion of the evidence on Plaintiffs’ Motion for

Default Judgment, the following exchange between the Court and Mr. Diaz occurred:

THE COURT: Is that part of the default -- MR. MOORE: Yes, it is, Your

Honor.

1
See discussion below at ¶16-17, demonstrating that the record testimony by Affidavit of
Thomas Riley and David Diaz establish that Defendant had sufficient time within which to timely
file its answer to the petition between May 24th, 2021 and May 31st, 2021, and has failed to
demonstrate otherwise.
2
This is the first time counsel for Defendant entered a general appearance for all purposes prior
to entry of the default judgment.
3
This is the second time counsel for Defendant entered a general appearance for all purposes
prior to entry of the default judgment.

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

THE COURT: Okay. Yeah. Mr. Diaz, any comments you want to make?

MR. DIAZ: Your Honor, again, I just ask this. I have to object to all of

the evidence again, Your Honor. It is, you know, hearsay. They haven't

proved up the contract. It's not signed by both parties. The affidavits, you

know, are hearsay. They're not here to testify and for me to cross-examination,

so I object to those affidavits as far as supporting evidence to the default

judgment.

Again, Your Honor, we're here to defend, we're here to make an

appearance.4 I think this appearance here constitutes an answer for the

Defendant5, and I would object to entree of any type of default motion at this

time based on first, my appearance, and then second, based on the insufficient

evidence if it's attached to the default motion.

THE COURT: Okay. I'll grant the default in those respects --

See, Exhibit A: July 13, 2021 Hearing on Plaintiffs’ Motion for Default Judgment, at P.

10, L. 4 to L. P. 11, L. 4. (Emphasis added).

4. “A party enters a general appearance when it (1) invokes the judgment of

the court on any question other than the court's jurisdiction, (2) recognizes by its acts that

an action is properly pending, or (3) seeks affirmative action from the court.” Exito

Electronics Co. v. Trejo, 142 S.W.3d 302, 304–05 (Tex.2004) (per curiam). In general, a

party's personal appearance before a trial court indicates a submission to the court's

4
This is the third time counsel for Defendant entered a general appearance for all purposes prior
to entry of the default judgment.
5
This is the fourth time counsel for Defendant entered a general appearance for all purposes prior
to entry of a default Judgment.

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
Page 4
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

jurisdiction, constituting a general appearance and therefore, waiving any complaint as to

service. Mays v. Perkins, 927 S.W.2d 222, 225 (Tex.App.—Houston [1st Dist.] 1996, no

writ) (citing TEX. R. CIV. P. 120). Thus, the record cited above clearly and unequivocally

establishes that Defendant G & G Closed Circuit Events, LLC, through counsel, had notice

of the July 13th, 2021, hearing on Plaintiffs’ Motion for Default Judgment, attended the

hearing, and entered a general appearance by invoking the jurisdiction of the court, actively

participated in the proceedings by requesting affirmative relief that the Default Judgment

not be entered based upon insufficient evidence and making objections to said evidence

seeking a ruling of the court, and on four separate occasions stating that he Counsel for

Defendant was making a general appearance on its behalf prior to the default judgment

being entered.

5. Counsel for Defendant sought affirmative relief from the Court during the

hearing prior to entry of the default judgment and waived any arguments as to any defects

in service. See, Beistel v. Allen, No. 01–06–000246–CV, 2007 WL 1559840, at *3

(Tex.App.—Houston [1st Dist.—Houston] May 31, 2007, no pet.) (mem.op.). Just as the

First Court of Appeals recognized, counsel's objection to the admission of evidence

“invoked the judgment of the court on a question other than the court's jurisdiction,

recognized that the action was properly pending in Texas, and sought affirmative action

from this court.” Id. at *3. See also, Composite Cooling Sols., L.P. v. Larrabee Air

Conditioning, Inc., 02-17-00006-CV, 2017 WL 2979918, at *3 (Tex. App.--Fort Worth

July 13, 2017)(concluding that “By its motion and conduct, Larrabee invoked the judgment

of the trial court on a question other than the court's exercise of personal jurisdiction over

Larrabee.”, citing Klingenschmitt v. Weinstein, 342 S.W.3d 131, 134 (Tex. App.–Dallas

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

2011, no pet.)(holding defendant's motion to dismiss for failure to state a cause of action

invoked trial court's judgment on issue “not related to his special appearance”). In Accord,

Kaufman v. AmeriHealth Laboratory, LLC, 05-20-00504-CV, 2020 WL 6375336, at *4

(Tex. App.--Dallas Oct. 30, 2020)(“By stepping outside the role of observer or silent

figurehead and participating in the hearing, counsel's actions were inconsistent with the

assertion that the trial court lacked jurisdiction over Kaufman.”)(emphasis added).

6. Moreover, based upon the foregoing undisputed facts, the Court’s grant of

Defendant’s Motion for New Trial and to Set Aside Default Judgment constituted an abuse

of discretion in failing to follow these guiding principles of law as previously set forth

herein, and as argued at the hearing on Defendant’s motion for new trial that the Default

Judgment constituted a judgment nihil dicit. See, Exhibit B: September 3, 2021 Hearing

on Defendants Motion for New Trial. Plaintiffs’ previously argued and fully briefed at the

hearing on Defendant’s Motion for New Trial that by reason of Defendant’s general

appearance, it had waived any objection to the jurisdiction of the court without filing an

answer prior to the Court’s grant of the Default Judgment, but did not have the specific

evidence of how undisputed these facts were until receipt of the transcript after the hearing

although requested before the motion was filed. Therefore, the Default Judgment

constitutes a judgment nihil dicit, since it is now undisputed that Defendant made a general

appearance without filing an answer prior to the Court’s grant of Plaintiffs’ Default

Judgment, even though counsel and Defendant could have done so, moved for a

continuance of the hearing and sought trial of the matter.

7. A judgment nihil dicit is proper when a party appears but has filed no

answer on the merits. O’Quinn vs. Tate, 187 S.W.2d 241, 245 (Tex.Civ.App. –Texarkana

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

1945, no writ). A judgment nihil dicit is STRONGER than a no-answer default in that a

judgment nihil dicit acts as a confession of the judgment. Gomperts vs. Wendeburn, 427

S.W.2d 904, 905 (Tex.Civ.App.-Austin 1968, no writ)(emphasis added). In discussing the

effects of a judgment nihil dicit, the Court in O’Quinn stated the following:

The judgment in cause No. 4010 shows that the defendant
was served by citation, appeared by attorney, and filed his
plea of privilege. Upon the call of the docket in Camp
County, the defendant having filed no pleadings other than
the plea of privilege, judgment was rendered against him,
which was a nihil dicit as distinguished from a default
judgment. A judgment of this type, as stated in 25 Tex.Jur.
page 420, Sec. 53: ‘* * * imports a waiver of all objections
to the service and return of process, and of mere
irregularities of form in stating the cause of action and
incidental facts. It carries an admission of the cause of
action substantially stated in the petition. Submission to
such a judgment is an abandonment of every known
defense or any defense which ordinary diligence could
have disclosed. In other words, a party who permits a
judgment nil dicit impliedly confesses judgment and waives
all errors in pleading or proof, not fundamental or
jurisdictional in character, except those which the record
shows were not intended to be waived.’

O'Quinn v. Tate, 187 S.W.2d 241, 245 (Tex. Civ. App. 1945, writ ref’d).6

8. Finally, the Texas Supreme Court stated in Stoner v. Thompson, 578 S.W.2d

679, 682 (Tex. 1979)(“that the non-answering party has “admitted” the facts properly pled

and the justice of the opponent's claim, although a judgment nihil dicit carries an even

stronger confession than the default judgment. Storey v. Nichols, supra; and see, Texas

Quarries v. Pierce, 244 S.W.2d 571 (Tex.Civ.App.1951, no writ). Because counsel for

6
In Re Billiant, 86 S.W.3d 680 (Tex.2002), the Texas Supreme Court discusses the default
judgment rules set forth in Storey, Gomports and O’Quinn: “a judgment nihi dicit” “is stronger
than a no-answer default in that a judgment nihil dicit acts as a confession of judgment.”

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

defendant did not attempt to file an answer before the granting of a default judgment but

made a general appearance for all purposes at the hearing, Defendant has confessed

judgment of the Court. Id.

C. Defendant’s counsel’s act of displaying a written answer prepared on behalf
of Defendant via Zoom to the Court and request that the Court accept same
as a filing after entry of the default judgment indisputably demonstrates that
Defendant’s failure to file an answer prior to the Default Judgment Hearing,
and prior to entry of the Default Judgment was intentional and not the result
of an accident or mistake.

9. During the hearing on Plaintiffs’ Motion for Default Judgment on July 13,

2021, after the Trial Court announced its decision on the default judgment, the following

exchange between the Court and Counsel for Defendant, Mr. David Diaz took place:

THE COURT: Okay. I'll grant the default in those respects --

MR. DIAZ: Your Honor -- Your Honor, I have one more point,

if you have -- if you have screen share, I do have an answer ready to

be filed. I can present that to the Court right now. You can accept this

answer on the record.

THE COURT: I already granted -- I'm going to grant the -- let

me -- let me enable you to screen share.

MR. DIAZ: And you have what, sir?

MR. MOORE: We're going to object to that, Your Honor.

THE COURT: I've already granted the default anyway, so --

MR. MOORE: Okay.

THE COURT: Can you share it, Mr. Diaz?

MR. DIAZ: Can you see that, Your Honor?

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
Page 8
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11/18/2021 5:35 PM
Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

THE COURT: I can now, yes, sir.

MR. DIAZ: Thank you. I would like to present this. I know

it's Zoom, and we're not in the court at the time, but you can actually

accept Defendant's answer at this time and make our note of it on it.

THE COURT: What I'll do, Mr. Diaz, I'll accept the answer

right now --

MR. DIAZ: So, at this time, I would like to --

THE COURT: I'll accept the answer that's e-filed right now,

and, for the record, this is being accepted and filed after I granted

the default judgment.

See, Exhibit A: July 13, 2021 Hearing on Plaintiffs’ Motion for Default Judgment, at P.

11, L. 5 to P. 12, L. 10. (Emphasis added).

The Failure to File an Answer was Intentional:

10. The record at the conclusion of the hearing on default judgment, clearly and

unequivocally establishes that Defendant’s counsel and Defendant had notice of the

hearing, attended and made a general appearance, submitted to the jurisdiction of the Court

by seeking affirmative relief from the Court waiving all defects in service and intentionally

withheld filing a prepared answer to the lawsuit until after the Court had ruled on Plaintiff’s

Motion for Default Judgment. Id. Exhibit A., at P.11, L.5 to P.12, L. 10. The filing of a

answer post judgment, in an intentional effort to attempt to fall within the Craddock test,

demonstrates conscious indifference where both in house counsel, Thomas O’ Riley and

retained counsel David Diaz, were aware of the pending lawsuit and discussed that an

answer needed to be filed as early as March 26th, 2021, 19 days before the answer date and

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

a month before the hearing which counsel attended on behalf of the Defendant. All three

elements of the Craddock test must be met. Under the Craddock test, post-answer as well

as no-answer default judgments should be vacated and a new trial granted when the

defaulting party establishes that (1) the failure to answer or to appear was not intentional,

or the result of conscious indifference, but was due to a mistake or an accident; (2) the

motion for a new trial sets up a meritorious defense; and (3) granting a new trial will not

occasion delay or work other injury to the prevailing party. See, In re R.R., 209 S.W.3d

112, 115 (Tex. 2006). The sworn Affidavits of O’Reilly and Diaz, regarding the first

element of the Craddock test are indisputably controverted by the conduct of counsel at the

default judgment hearing as alleged in support of Defendant’s Motion for New Trial and

To Set Aside Default Judgment contending that their failure to answer or appear was a

result of an accident or mistake and not intentional. G&G Closed Circuit Events, LLC

actually appeared at the hearing!! This is not a post answer default judgment except by

design attempting intentionally to make it so by withholding the answer until after the

Default Judgment was granted. The Craddock test is not applicable under the facts of this

case, since Defendant had notice of and appeared at the hearing.

11. Additionally, the testimony by National Counsel for G&G Closed Circuit

Events, LLC, and its local counsel, David Diaz, attached to Defendant’s Motion for New

Trial indisputably proves that Defendant’s failure to file an answer was the result of

conscious indifference and thus fails the first part of the Craddock test for the grant of a

new trial and setting aside a default judgment.

12. The following Affidavit testimony of Thomas Riley, when juxtaposed to

that of David Diaz, warrants re-consideration by this Court. Mr. Riley testified as follows:

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
Page 10
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

“4. On May 24, 2021, I received the Amended Petition filed by Plaintiffs Walid
Haidar, individually, and as representative of 415 Trenton, L.L.C. d/b/a Walk-On's
Bistreaux (hereafter "Plaintiffs") against G & G from Nicolas J. Gagliardi, President of
G & G.

5. On May 24, 2021, upon receipt of the Amended Petition, I telephoned
David Diaz in Allen, Texas, to discuss the case, and I subsequently forwarded the
Amended Petition to Mr. Diaz.

6. On May 26, 2021, I sent several piracy files related to Plaintiff's
establishment, Walk-On's Sports Bistreaux, to Mr. Diaz. A copy of the cover letter
accompanying those files is attached hereto as Exhibit 1. My May 26, 2021 letter also
addressed Plaintiffs' Amended Petition herein. See Ex. 1.

7. After speaking with Mr. Diaz on May 24, 2021 and subsequently forwarding
him the Amended Petition, it was my understanding that Plaintiffs' Amended Petition
wou1d be addressed.”

See, Defendant’s Motion for New Trial: Attachment Exhibit B: Affidavit of Thomas P.

Riley, at P.2. Mr. Riley, who had been in contact with Mr. Moore via correspondence on

numerous occasions before suit was filed, did not send multiple files, which were misfiled

as alleged, but sent a single file with the Plaintiff’s Original Petition included in the file to

Mr. Diaz’s attention after having discussed the issue with him over the phone just 2 days

earlier on May 24th, 2021. See, Exhibit 1: Correspondence dated May 26, 2021, attached

to the Affidavit of Thomas P. Riley, National Counsel for G& G Closed Circuit Events,

LLC. The letter to David Diaz, following the conversation with Mr. Diaz and Mr. Riley of

March 24, 2021, communicated the following:

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

See, Exhibit 1: Correspondence dated May 26, 2021, attached to the Affidavit of Thomas

P. Riley. The letter, as indicated above, discusses the plan to remove the case to federal

court, but more importantly, proves beyond all doubt that David Diaz, received the

Plaintiffs’ Original Petition on May 24th, 2021. The answer due date to the Petition was

served on May 8, 2021, so the due date to file an answer was Monday, May 31, 2021. Mr.

Diaz had From Monday May 24, 2021 to Monday May 31st, 2021 [8 full days], to prepare

and file a one page answer as that displayed during the hearing. Nowhere in Mr. Diaz’

Affidavit does he state that he was absent from his office, out of town, or on vacation from

May 24, 2021 to and including May 31, 2021. See, Exhibit C: Affidavit of David Diaz

attached to Defendants Motion for New Trial.

13. An attorney of “reasonable sensibilities” under the same or similar

circumstances, after receiving a call on May 24th, 2021 from his National Counsel, planning

removal to Federal Court on a case of alleged “Pirating”, and having received the petition,

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Reviewed By: Alessandra Galvan

not once but twice, would have immediately filed at least an answer to prevent a default

and later a Notice of Removal on or before May 31st, 2021, or contemporaneously with the

answer.

14. “Conscious indifference” has been defined as failing to take some action

which would seem obvious to a person of reasonable sensibilities under the same

circumstances. See, Sedona P. Hous. Partn. v. Ventura, 408 S.W.3d 507, 514 (Tex. App.-

-El Paso 2013)(emphasis added). Conscious indifference is defined as “the failure to take

some action which would seem indicated to a person of reasonable sensibilities under the

same or similar circumstances.” See, Young v. Kirsch, 814 S.W.2d 77, 81 (Tex.App.-San

Antonio 1991, pet. rehear'g denied)(emphasis added); Sunrizon Homes, Inc. v. Fuller, 747

S.W.2d 530, 532 (Tex.App.-San Antonio 1988, writ denied); Diagnostic Clinic of

Longview, P.A. v. Neurometrix, Inc., 260 S.W.3d 201, 204 (Tex. App.--Texarkana 2008).

15. The Waco Court of Appeals on very similar facts as those which are

undisputed here, in employing the definition “conscious indifference”, found that the trial

court did not abuse its discretion in denying a motion for new trial following a no answer

default judgment where the evidence was that “phone calls were made to Medellin, AS

HERE TO DIAZ, the letter written to Medellin which included copies of the citation and

petition, AS HERE TO DIAZ, Medellin's familiarity of and experience with the legal

system as a Senior Claims Service Adjuster for an insurance company, AS HERE BUT

DIAZ IS A LAWYER; and the length of time which lapsed before the default judgment

was finally entered, AS HERE FROM MAY 24 to JULY 13, 2021. See, Freeman v.

Pevehouse, 79 S.W.3d 637, 647–48 (Tex. App.--Waco 2002)(holding that under those

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
Reviewed By: Alessandra Galvan

facts, Freeman did not satisfy the first element of the Craddock test.). In accord, Qi v. An,

02-20-00330-CV, 2021 WL 5028607, at *1 (Tex. App.--Fort Worth Oct. 28, 2021).

16. The affidavit testimony of David Diaz, conflicts with the Affidavit

testimony of Thomas Riley, in that Mr. Diaz does not provide any reason why he as a

person of reasonable sensibilities, did not file an answer, after being alerted to a lawsuit

by phone on May 24th, 2021, which had been served on May 8th, 2021, under circumstances

where his client and National Counsel wanted that case removed to Federal Court and after

having received the lawsuit papers twice in his office, once by fax on May 24th, 2021, and

again on May 25th, 2021, via FedEx Overnight mail [a single file - not multiple files]. See,

Defendant’s Motion for New Trial: Attachment Exhibit B: Affidavit of Thomas P. Riley,

at P.2 at ¶¶ 5 & 6. Neither David Diaz nor Thomas Riley’s Affidavit testimony speak to

this time period of May 24th to May 31st, 2021 as to what they were doing. It is

inconceivable that two attorneys with “reasonable sensibilities” would forget about such

an emergent and important event for their client. Neither of these attorneys have provided

any testimony that they were either sick, out of town, out of touch or suffering from mental

disabilities or in a coma during the time period of May 24th, 2021 to and including May

31st, 2021, nor anyone in their offices.

17. Based upon the record before the Court at the hearing on Defendants Motion

for New Trial and to Set Aside Default Judgment, Defendant’s own testimony by Affidavit

submitted undisputedly established that the failure of G&G Closed Circuit Events, LLC’s

to file and answer was the result of conscious indifference; and, as a matter of law,

Defendant is not entitled to a new trial since it failed to establish the first required part of

the Craddock test. Freeman v. Pevehouse, 79 S.W.3d at 647–48.

Plaintiffs’ Motion for Reconsideration of Response to Motion for New Trial and to
Set Aside Default Judgment
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Hidalgo County District Clerks
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18. As a matter of law, the Trial Court erred in granting Defendant’s Motion for

New Trial and Setting Aside and Vacating the July 20, 2021 Order Granting Default

Judgment in favor of Plaintiffs. Plaintiffs respectfully request that, after notice and hearing

of Plaintiffs’ Motion for Reconsideration, that the Court vacate its Order Dated September

28, 2021, and reinstate the

Case Info

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Mancias, Fernando G Track Judge’s New Case

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Document Filed Date

November 18, 2021

Case Filing Date

April 12, 2021

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Motion,Ex Parte: Walid Haidar,415 Trenton, L.L.C. D/B/A Walk-On's Sports Bistreaux vs. G & G Closed Circuit Events, L.L.C.

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