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Shields v. Conkling

Court of Appeals of Texas, Fourteenth District

June 1, 2017

ARNOLD "BLU" SHIELDS, Appellant
v.
SCOTT CONKLING AND MELISSA CONKLING, Appellees

          On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 15-CV-0112

          Panel consists of Justices Christopher, Busby, and Jewell.

          MEMORANDUM OPINION

          Kevin Jewell Justice

         Appellant 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.

          Background

         Appellees 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.

         Several 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.

         BSC and 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.

         The 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.

          On 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.

         On April 28, 2016, the Conklings moved to strike BSC's pleadings for failure to obtain representation, [1] 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.

         The 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.

         Both 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 ...


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