Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause No. 15-CV-0112
consists of Justices Christopher, Busby, and Jewell.
Arnold Shields appeals from the trial court's post-answer
default judgment. Shields asserts that the suit against him
violated a litigation stay imposed by a separate bankruptcy
proceeding and that the trial court abused its discretion in
failing to rule on pending motions. Having reviewed the
record in light of the issues raised by Shields, we find no
error in the trial court's judgment, and we affirm.
Scott and Melissa Conkling hired Blu Shields Construction,
LLC ("BSC") to construct a new home. Arnold Shields
is the owner of BSC. The Conklings paid a $35, 000
construction deposit to Galveston Service Company, which the
Conklings allege is an assumed name for BSC and/or Shields.
But, according to the Conklings, the only work performed at
the new home site was the installation of an electrical pole
for the job site and occasional mowing of the property.
months later, the bank financing the Conklings'
construction project advised the Conklings that Shields was
in bankruptcy and the bank would not fund the Conklings'
project due to Shields's bankruptcy. Scott Conkling
requested the return of the $35, 000 deposit. When BSC failed
to return the deposit, the Conklings sued BSC and Shields for
conversion, fraud, money had and received, violations of the
Texas Deceptive Trade Practices Act, breach of contract,
misappropriation of trust funds, and breach of fiduciary
duty; the Conklings premised their allegations against
Shields individually on an alter-ego theory.
Shields were initially represented by counsel and filed
answers to the Conklings' petition. BSC's answer was
filed subject to a plea to the jurisdiction, and
Shields's answer was filed subject to a motion to
dismiss. Both the plea to the jurisdiction and the motion to
dismiss were based on the argument that the Conklings'
suit violated an automatic litigation stay imposed by virtue
of Shields's bankruptcy proceeding. There is no order in
the record granting or denying the plea to the jurisdiction
or the motion to dismiss.
trial court held a pretrial conference on March 21, 2016, and
set the case for trial on March 28, 2016. BSC and Shields
failed to appear on either date.
March 28, 2016, the trial court granted a motion to withdraw
filed by defendants' counsel, and the court gave the
defendants thirty days to obtain new counsel. The court set a
status conference for April 28, 2016, and sent notice to the
defendants. The trial court's judgment states that BSC
and Shields failed to appear at the status conference. There
is no indication in the record of any appearance by
subsequently retained counsel for BSC or Shields.
April 28, 2016, the Conklings moved to strike BSC's
pleadings for failure to obtain representation,
moved for no-answer default judgment against BSC, and moved
for post-answer default judgment against Shields due to
Shields's failure to appear for trial.
trial court held a hearing on the Conklings' motion for
default judgment on May 26, 2016. Shields did not appear. The
trial court struck BSC's pleadings, rendered default
judgment against BSC and Shields, and awarded the Conklings
actual and exemplary damages, plus prejudgment interest,
postjudgment interest, attorney's fees, and court costs.
BSC and Shields appealed the trial court's judgment. BSC
was dismissed from this appeal by order dated October 25,
2016, for failure to obtain ...