HAROLD G. ABERNATHY, FROM A DISTRICT COURT APPELLANT, v. BANK OF DALLAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00885-CV
 
HAROLD G. ABERNATHY,                        FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
BANK OF DALLAS,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, THOMAS AND BURNETT
OPINION BY JUSTICE THOMAS
JUNE 26, 1989
        This is an appeal from a default judgment entered against appellant, Harold G. Abernathy. In a single point of error, Abernathy contends that the trial court erred in denying his motion for new trial. We disagree and affirm the trial court's judgment.
FACTUAL BACKGROUND
        The Linda Joyce Abernathy Trust, by and through Abernathy, as Trustee, executed a note to appellee, Bank of Dallas. At the same time, Abernathy executed a personal guaranty to the Bank guaranteeing the indebtedness of the Trust. When the Trust failed to make the payments and filed a voluntary petition in bankruptcy, the Bank filed suit under the guaranty agreement seeking recovery from Abernathy.
        After the trial court entered a default judgment in favor of the Bank, Abernathy filed a motion for new trial asserting that he did not remember having been personally served in the lawsuit. Abernathy further contended that his first notice of the existence of the lawsuit was when he received a copy of the default judgment. Following a full evidentiary hearing, the trial court overruled Abernathy's motion for new trial, subject to a remittitur of $25,000 in attorney's fees.
STANDARD OF REVIEW
        Certain prerequisites must be met in order to set aside a default judgment and obtain a new trial. A motion for new trial is addressed to the trial court's discretion and the court's ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987). The principles that trial courts are to follow in determining whether to grant a motion for a new trial are set out in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). The Craddock court stated in relevant part:
 
 
        A default judgment should be set aside and a new trial ordered in any case in which the failure of defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; provided the motion for a 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.
Id. at 126.
LACK OF SERVICE
        The thrust of Abernathy's motion for new trial and this appeal is the contention that he was not served with citation. Therefore, he argues that he did not have to establish a meritorious defense and the default judgment should be set aside. The law is clear that where a party establishes that his failure to appear resulted from a lack of notice, the judgment is constitutionally defective because due process has been denied. Peralta v. Heights Medical Center, Inc., 480 U.S. 80, , 108 S. Ct. 896, 899, 900 (1988). Further, in that situation, the defendant need not set up a meritorious defense. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988); see also Peralta, 480 U.S. at , 108 S. Ct. at 900. However, a default judgment should not be set aside unless the defendant provides clear, satisfactory, and convincing proof of lack of service. Martin v. Ventura, 493 S.W.2d 336, 338 (Tex. Civ. App.--Tyler 1973, no writ); Cortimiglia v. Miller, 326 S.W.2d 278, 282 (Tex. Civ. App.--Houston 1959, no writ). Further, the law provides that an officer's return of citation, regular on its face, establishes a presumption of proper service, which presumption may not be overcome by the testimony of the defendant alone; such testimony must be corroborated. Cummins v. Paisan Constr. Co., 682 S.W.2d 323, 326 (Tex. App. --Houston [1st Dist.], writ ref'd n.r.e. per curiam, 682 S.W.2d 235 (Tex. 1984).
        The record contains a Citation and Officer's Return reflecting that Abernathy was served on Monday, February 15, 1988, at or about 10:12 a.m. by Mark S. Smith, a Dallas County Deputy Constable. At the hearing on the motion for new trial, Abernathy contended that "he did not remember being served." Abernathy explained that he had established a procedure with Andrew Jillson, the attorney handling the Trust bankruptcy, concerning how legal papers would be handled. According to Abernathy, whenever he received any legal papers, he immediately called Jillson and transmitted the documents to the attorney by special messenger. Abernathy claims that on February 15, he was at a restaurant with business acquaintances until after 10:00 a.m. at which time he returned to his home. Approximately fifteen minutes later, his secretary arrived and they did some work.
        In support of his contentions, Abernathy presented Jillson's affidavit, which stated that it would have been inconsistent with his dealings with Abernathy for Abernathy not to have contacted him regarding the instigation of this lawsuit. According to Jillson, Abernathy contacted him on all legal matters and all documents were sent to him for review. Jillson stated that he was not contacted about this suit until Abernathy received a copy of the default judgment. Abernathy further produced an affidavit of his secretary, Susan Hill. Hill's affidavit stated that it was her experience that Abernathy would have discussed being served with her; that Abernathy would have called his attorney; and that he would have immediately forwarded the documents to the attorney. Hill's affidavit in support of the motion for new trial stated that she arrived at the Abernathy home "mid-morning" on February 15 and worked with Abernathy for approximately forty-five minutes. According to this affidavit, Abernathy did not discuss being served. This would have been inconsistent with his normal behavior.
        Deputy Constable Smith testified at the hearing on the motion for new trial. Smith specifically recalled serving Abernathy on the morning of February 15. Smith detailed for the trial judge, the appearance of the home, the speaker system as well as a camera located at the entrance. According to Smith, Abernathy explained that he was home because he had the flu. Upon cross-examination, Smith stated that the reason he remembered Abernathy is because he served him thirty days later on March 17, and again Abernathy stated that he was home because of the flu. Smith further pointed out to the trial court certain markings he made on the paperwork at the time the citation was served. These markings reflected that he served Abernathy at 10:12 a.m.
        We hold that Abernathy's evidence did not overcome the presumption that the officer's return on the citation was correct. The evidence required to impeach a citation does not have to be direct but may be wholly circumstantial. Sanders v. Harder, 227 S.W.2d 206, 209 (Tex. 1950). An affidavit must demonstrate that the affiant has personal knowledge of the facts. Requipo, Inc. v. Am-Tex Tank & Equip., 738 S.W.2d 299, 301 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). The affiants in this case have no personal knowledge of whether Abernathy was served; they merely attest to his customs. Although the affidavits may have borne on the issue of Abernathy's business or living habits, the sole issue before the court was whether Abernathy was served.
        Abernathy's only other evidence was his own testimony being the claim that he did not "remember" being served. Under Texas law, the testimony of the defendant, without corroborating evidence or testimony, is not adequate to overcome the presumption that the officer's return on the citation is correct. Martin v. Ventura, 493 S.W.2d at 338. Controverting evidence was presented to the trial judge from Deputy Constable Smith. This controverting evidence was within the trial judge's province to weigh. In a non-jury trial, the credibility of the witnesses and the weight to be given to their testimony is entrusted to the trial court, whose judgment is not to be disturbed absent strong evidence contrary to the findings. See Belford v. Belford, 682 S.W.2d 675, 677 (Tex. App.--Austin 1984, no writ).
        Finding no merit in Abernathy's argument, we overrule the sole point of error and affirm the trial court's judgment.
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00885.F
 
 
File Date[01-02-89]
File Name[880885]