Patricia Kay Neal, Frances K. Neal, and Robert K. Neal v. Huie Andrew Spears, Jr.--Appeal from County Court at Law of Panola County

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NO. 12-01-00188-CV











Appellants Frances Neal, Robert Neal, and Patricia Neal appeal the trial court's grant of a no-answer default judgment in favor of Appellee Huie Spears, Jr. In two issues, the Neals complain that the trial court erred when it denied their motion for new trial, and that the evidence was legally and factually insufficient to support the damages awarded. We reverse and remand for a new trial.



Patricia Neal was driving her parents' vehicle when she and Spears were involved in an automobile accident. Spears filed suit against Patricia for causing the accident, and against Frances and Robert, Patricia's parents, for negligent entrustment. When the Neals did not file an answer, Spears took a default judgment against them for $302,648.00. After receiving notice of the default judgment, the Neals filed a motion for new trial, attaching affidavits of Patricia, Frances and Mike Brady, the Neals' insurance agent. In her affidavit, Patricia averred that Spears, not she, was responsible for the accident. Frances asserted that Patricia was a good driver, licensed, and that she had never been in any accidents; thus, it was not negligent to allow her to drive the family car. Brady testified that Frances called him when she received her citation and petition, and that she hand delivered them to him, possibly the next day. Brady further stated that he believed he faxed the citation and petition to the insurance claim office, but apparently had not. As an explanation for his failure to do so, he cited inadvertence due to inexperienced office staff and a busier than normal work environment.

At the hearing on the motion for new trial, the Neals did not testify, but Spears did. Spears did not controvert anything in the Neals' affidavits, but spoke of a heart condition he had which would delay a trial on the merits, if the trial court decided to grant the Neals' motion. When Spears' attorney pointed out that the Neals' affidavits were missing some critical statements (e.g., what happened to Robert's and Patricia's citations, and the reason the Neals' failed to file an answer), the trial court agreed to give the Neals 10 days to supplement the affidavits. The supplemental affidavits stated that Patricia and Robert both gave their citations to Frances to take to Mike Brady. Frances stated that she only went to Brady's office once, and that she was relatively sure she took all three citations. After the Neals filed their supplemental affidavits, the trial court denied their motion for new trial. This appeal followed.


Motion for New Trial

A trial court's ruling on a motion for new trial after it renders a default judgment will be disturbed only if an abuse of discretion is shown. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). However, if the movant establishes the three requirements for a new trial after a default, it is an abuse of discretion not to grant the motion. The three requirements are: 1) that the failure to answer was not intentional or the result of conscious indifference, but was due to mistake or accident; 2) the defendant set up a meritorious defense; and 3) the motion is filed at a time when the granting would not cause delay or prejudice to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. Com. App. 1939); J.H. Walker Trucking v. Allen Lund Co., Inc., 832 S.W.2d 454, 455 (Tex. App.-Houston [1st Dist.] 1992, no writ). To meet the first element of the Craddock test, the movant must establish some excuse, but not necessarily a good excuse, for the failure to answer the lawsuit, as long as the act or omission causing the defendant's failure to answer was, in fact, accidental. K-Mart Corp. v. Armstrong, 944 S.W.2d 59, 61 (Tex. App.-Amarillo 1997, writ denied). Where the factual allegations in a movant's affidavits are not controverted, it is sufficient that the motion and affidavit set forth facts which, if true, would negate intentional or consciously indifferent conduct. Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992). When a defendant relies on his agent to file an answer, he must demonstrate that both he and his agent were free of conscious indifference. Id. at 83. The requirement to set up a meritorious defense is met when affidavit testimony sets forth the facts that, if ultimately proved, would cause a different result upon retrial of the case. State Farm Life Ins. Co. v. Mosharaf, 794 S.W.2d 578, 584 (Tex. App.-Houston [1st Dist.] 1990, writ denied). And once a defendant has alleged that granting a new trial will not injure the plaintiff, the burden of going forward with proof of injury shifts to the plaintiff. K-Mart Corp., 944 S.W.2d at 63.


Supplemental Affidavits

Before we perform the Craddock analysis, we must first determine which of the affidavits filed in support of the Neals' motion for new trial were properly considered by the court. Spears argues that the trial court had no discretion to allow supplementation of the motion and, consequently, the second set of affidavits were improperly admitted into evidence. We agree. Rule 329b of the Rules of Civil Procedure states that amended motions for new trial must be filed before the trial court rules on the motion, and within thirty days after the original judgment was signed. Tex. R. Civ. P. 329b(b). This rule equally applies to supplemental motions. Equinox Enterprises, Inc. v. Assoc. Media Inc., 730 S.W.2d 872, 875 (Tex. App.-Dallas 1987, no writ). And since Rule 5 of the Texas Rules of Procedure prohibits a trial court from enlarging "the period for taking any action under the rules relating to new trials except as stated in these rules . . . ," the trial court did not have the discretion to grant an extension to file the supplemental affidavits. Tex. R. Civ. P. 5. We hold, therefore, that the only affidavits properly before the trial court when it deliberated on the motion for new trial were the three affidavits attached to the original motion.


Craddock Analysis

After reviewing the affidavits, we conclude that only Frances satisfied all of the Craddock elements. Brady averred in his sworn statement that Frances brought him the petition and citation very soon after she received it. Brady then stated that he knew the proper procedures to follow when one of his insureds was served with citation, but that he inadvertently placed the documents in his "claims bin" without first faxing copies to the claims office. This testimony satisfied the first Craddock element for Frances. Frances then made a sworn statement that her daughter was a good driver who had never been in an accident before, and that she had no reason to believe that Patricia was an unsafe, reckless, or less than competent driver. This set up a meritorious defense for Frances, which satisfied the second Craddock element. The third element was satisfied when the Neals offered to reimburse Spears for any reasonable costs and expenses sustained by the taking of the default judgment, and announced ready for trial. Further, the trial court heard the Neals' motion for new trial less than two months after the default was rendered. It is highly unlikely that a trial on the merits of this case would have been reached by the date of the hearing on the motion for new trial. Thus, if the trial court had set aside the default judgment, Spears would have been in no worse position than if an answer had been timely filed on behalf of the Neals. (1) We hold, therefore, that the trial court abused its discretion when it denied Frances' motion for new trial.

As to Robert and Patricia, neither met the criteria as to "mistake or accident," since Robert did not file an affidavit, and Patricia only testified as to how the accident occurred. Although Patricia set up a meritorious defense, Robert failed to do so since he did not file an affidavit. Thus, neither father nor daughter satisfied the Craddock test. If these were three separate defendants in three separate default judgment cases, we would affirm the trial court's denial of Robert and Patricia's motion for new trial, but reverse and remand Frances' case for a new trial. But these particular defendants are family members in one lawsuit, where what happens to one indisputably affects the others. For example, if Frances was granted a new trial, the jury could find that Patricia did not cause the accident. And if Patricia did not cause the accident, Frances could not be held liable for negligent entrustment and she would not be required to pay damages. But should Robert's and Patricia's default judgments stand, Frances would still be responsible for paying the $302,648.00 from the community estate. We hold, therefore, that these claims are so intertwined that one should not be severed from the others and retried alone. See Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982). This court must reverse the entire judgment in order to provide Frances with full and effective relief. See Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 613 (1948); see also State Dep't of Highways v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993). Accordingly, we reverse the trial court's judgment and remand the entire cause for a new trial.





Opinion delivered March 20, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.


1. Spears did testify that he had recently been diagnosed with a heart problem and that he did not feel he could handle the stress of a trial at that time. But this testimony did not controvert the Neals' assertion that the granting of the motion for new trial would not cause delay or prejudice to Spears since it was Spears' physical condition, not the granting of the motion, which would have caused the delay.