Robin Virginia Goskie v. Kenneth A. Benningfield--Appeal from County Court at Law of Dallas County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Robin Virginia Goskie

Appellant

Vs. No. 11-02-00107-CV B Appeal from Dallas County

Kenneth A. Benningfield

Appellee

The trial court awarded appellee a default judgment against appellant. In its default judgment, the trial court awarded appellee $11,390 for past and future medical expenses, past physical pain and suffering, and property damages. We reverse and remand for a new trial.

Issues Presented

Appellant presents five issues for review. Appellant first argues that the trial court abused its discretion in denying her motion to set aside the default judgment or, alternatively, motion for new trial because she met the requirements of the Craddock[1] test. Because we reverse and remand on the first issue, we do not address the remaining issues.

Background Facts

On November 19, 2001, appellee served appellant with his petition. The petition alleges that appellee was injured by appellant=s negligence in an automobile accident which occurred on March 2, 2001. Appellant did not answer the suit. On or about December 26, 2001, the insurance company received a complimentary copy of the citation and petition with a letter attached informing the insurance company that the answer was due December 10, 2001. On January 10, 2002, the trial court entered a default judgment in favor of appellee. On February 11, 2002, appellant filed her answer and also filed her motion to set aside the default judgment or, alternatively, motion for new trial. The trial court held a hearing and denied the motion for new trial on March 8, 2002.

Equitable Motion for New Trial

Appellant=s first issue is that the trial court abused its discretion by not granting appellant=s motion for new trial because appellant met the requirements of the Craddock test. Craddock v. Sunshine Bus Lines, Inc., supra at 126. In Craddock, the court stated that an equitable motion for new trial must be granted in all cases where:

[T]he failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

A trial court abuses its discretion when all of the elements of the Craddock test are fulfilled and when it fails to grant a new trial. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex.1992). When the factual allegations in a movant=s affidavit are not controverted, it is sufficient if the motion and affidavit provide factual information, that if taken as true, would negate intentional or consciously indifferent conduct. Director, State Employees Workers= Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex.1994); Strackbein v. Prewitt, 671 S.W.2d 37, 38 39 (Tex.1984). To make a determination as to whether the appellee has controverted appellant's factual assertions, we look to all of the evidence in the record. However, conclusory allegations are insufficient; the facts must explain the nature of the mistake. Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 82 83 (Tex.1992).

Appellant=s affidavit states that, at or near the time she was served, her daughter was having health complications and was in and out of the hospital from early November 2001 through January 2002. Her affidavit then asserted:

It was my intention to address the lawsuit, but the many issues relating to my daughter caused me to forget about the lawsuit. If I was aware of the lawsuit=s significance, I would have addressed Mr. Benningfield=s allegations.

Some excuse, but not necessarily a good excuse, is enough to set aside a default judgment, so long as the defendant=s failure to answer is accidental. Ferguson & Co. v. Roll, 776 S.W.2d 692, 695 (Tex.App. - Dallas 1989, no writ). Appellee does not controvert appellant=s evidence. Therefore, appellant=s affidavit, for the purpose of establishing a lack of intent or conscious indifference, is sufficient.

Appellant included two affidavits from the insurance company to show that the insurance company was also free of conscious indifference under the assumption that both appellant and her agent must be free of conscious indifference in their failure to answer in order to satisfy the first prong of the Craddock test. Harris v. Lebow, 363 S.W.2d 184, 186 (Tex.Civ.App. - Dallas 1962, writ ref=d n.r.e.). The case law is consistent that, when a defendant entrusts the citation to a third party and the third party fails to perform a certain task which was necessary for the lawsuit to be timely answered, the third party must also be free of conscious indifference. Ferguson & Co. v. Roll, supra at 697. In Lebow, the insurance company received the citation from the defendant, but the record did not show why the insurance company did not file an answer. Harris v. Lebow, supra at 186. In Grammar v. Hobby, 276 S.W.2d 311, 312 (Tex.Civ.App. B San Antonio 1955, writ ref=d n.r.e.), the defendant gave the citation to a man for delivery to defendant=s attorney. In Brothers Department Store, Inc. v. Berenzweig, 333 S.W.2d 445, 446 (Tex.Civ.App. B San Antonio 1960, writ ref=d n.r.e.), the defendant gave the citation to his attorney=s secretary. In Craddock v. Sunshine Bus Lines, Inc., supra at 124-25, the defendant sent the citation to the insurance company.

In the present case, appellant=s mistake or excuse for not answering did not involve reliance on the insurance company; therefore, we conclude that, under the facts presented in the record, the insurance company was not an agent for the purpose of the Craddock test. Craddock v. Sunshine Bus Lines, Inc., supra at 126.

Next under Craddock, appellant must show a meritorious defense. In appellant=s motion for new trial, appellant states that an unknown driver collided with the rear of the vehicle she was driving, causing her to hit appellee=s vehicle. Appellant offered her affidavit and a police report to support this defense. Appellant also says that appellee told appellant and the police officer that he was not injured. Appellant has alleged sufficient facts to set up a defense that: (1) appellant was not negligent; (2) appellant was not the proximate cause of appellee=s injuries; and (3) the appellee was not injured.

Finally, for the third prong of the Craddock test, appellant must show that a new trial will bring no delay or injury to plaintiff. In appellant=s motion for new trial, appellant stated she was willing to reimburse appellee for all reasonable expenses in obtaining the default judgment and that she was ready, willing and able to proceed to trial. Once appellant alleged that granting a new trial would not cause delay or injury, the appellee then had the burden of showing the delay or injury he would suffer. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987); Tanknology/NDE Corporation v. Bowyer, 80 S.W.3d 97, 103 (Tex.App. BEastland 2002, pet=n den=d).

The purpose of this prong of the Craddock test is to protect plaintiffs from delay or injury that would disadvantage them in presenting the merits of their case at trial. Tanknology/NDE Corporation v. Bowyer, supra at 103. Appellee has failed to make any allegations showing how a new trial would disadvantage him in presenting the merits of his case at trial. See Director, State Employees Workers=Compensation Division v. Evans, supra at 270; Tanknology/NDE Corporation v. Bowyer, supra at 103.

We sustain appellant=s first issue. Because of our decision on the first issue, we do not need to address the remaining issues. TEX.R.APP.P. 47.1.

This Court=s Ruling

We reverse the decision of the trial court and remand this cause for a new trial.

TERRY McCALL

JUSTICE

January 16, 2003

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex.1939).