Angelo v. Champion Restaurant Equipment Co.

• Decision Date: 03 October 1985
• Docket Number: No. 01-85-0423-CV,01-85-0423-CV
• Citation: 702 S.W.2d 209
• Parties: Charles ANGELO, et al, Appellants, v. CHAMPION RESTAURANT EQUIPMENT COMPANY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 209

702 S.W.2d 209

Charles ANGELO, et al, Appellants, v. CHAMPION RESTAURANT EQUIPMENT COMPANY, Appellee.

No. 01-85-0423-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Oct. 3, 1985.

Rehearing Denied Dec. 5, 1985.

Bruce A. Coplen, Leger & Hall, P.C., Houston, for appellants.

Emmett Sterling Huff, Rodney Jack Reynolds, Houston, for appellee.

Before JACK SMITH, DUGGAN and HOYT, JJ.

OPINION

HOYT, Justice.

This appeal arises from a default judgment entered on a sworn account against appellant, Charles Angelo (Angelo) individually and doing business as Angelo's Fisherman's Wharf Restaurant. Appellee, Champion Restaurant Equipment Company (Champion), sued Angelo to recover the balance owed for "goods, wares, merchandise, or services" on an open account. Angelo failed to answer Champion's petition, and a default judgment was entered against him for $34,390.87, plus attorney's fees of $1,750, prejudgment and postjudgment interest, and court costs. Angelo filed a timely motion for new trial, which was overruled. We affirm.

In two points of error, Angelo challenges the judgment contending that the trial court abused its discretion in (1) denying him a new trial and, (2) failing to correctly apply the doctrine of equity. In two other points of error, Angelo contends that (1) the court erred in denying his motion for new trial because the testimony upon which the judgment was based is unrecorded; and (2) the court erred as a matter of law in granting the default judgment because the case had been abandoned.

On a motion for new trial following a default judgment, the defendant must show that his failure to answer before judgment was not intentional, or a result of conscious indifference, but was due to a mistake or an accident; and that he has a meritorious defense; and the granting of a new trial will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Further, to show no delay or injury to the plaintiff, the defendant must show that he has offered to reimburse the plaintiff for the reasonable expenses incurred in obtaining the default judgment, and that he is ready, willing and able to immediately go to trial. Stone Resources, Inc. v. Barnett, 661 S.W.2d 148, 152 (Tex.App.--Houston [1st Dist.] 1983, no writ).

Angelo's motion for new trial satisfies the failure to answer and the meritorious defense requirements of a motion for new trial. However, Angelo failed to satisfy the trial court that he was "ready, willing and able" to go to trial promptly and that he would reimburse Champion for the cost incurred in procuring the default judgment. The record from below, and the briefs on appeal, fail to address these requirements.

The matter of granting a motion for new trial after default judgment is addressed to the sound discretion of the trial court and the trial court's order will not be set aside in the absence of a clear showing that the Court abused its discretion. Kelly v. Novak, 606 S.W.2d 25, 29 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ). Because a motion for new trial is addressed to the sound discretion of the trial court on all requirements, Zonker v. Sullivan, 650 S.W.2d 189, 190 (Tex.App.--El Paso 1983, writ ref'd n.r.e.), we find no abuse of discretion and, therefore, overrule these points of error.

Angelo next contends that the default judgment should be reversed because the testimony on which the judgment was based was not recorded, and because no statement of facts is available for review of the sufficiency of the evidence to support the award of damages. Ordinarily, in the absence of a statement of facts, a reviewing court must presume that the evidence adduced supports the judgment. " '[I]f an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way.' " Rogers v. Rogers, 561 S.W.2d 172, 173-74 (Tex.1978) (quoting Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.1972) ).

The record in the instant case fails to show that appellant made a request for a statement of facts or that a statement of facts was unavailable. "Where the record supports the judgment in the absence of a statement of facts, it is incumbent on the party alleging error to show that a statement of facts was necessary. In the absence of such a showing there is no error." Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 394 (Tex.1982).

The damages and attorney's fees awarded were based upon affidavits. An affidavit by an attorney representing a party in suit, concerning an award of attorney's fees in an amount claimed to be reasonable, is considered to be expert testimony. Gifford v. Old Republic Insurance Company, 613 S.W.2d 43, 46 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). A trial court may properly consider an affidavit as evidence in a default judgment hearing. Naficy v. Braker, 642 S.W.2d 282, 285 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.).

Because Angelo makes no contention that the affidavit on attorney's fees is defective and because there is no showing that a record is necessary to preserve his appeal, his point of error regarding the unavailability of a statement of facts is overruled.

Angelo lastly contends that the trial court erred as a matter of law in granting a default judgment because the record shows that Champion failed to prosecute the claim with due diligence, thereby abandoning the cause of action. The record discloses that Champion filed its motion for default judgment over 42 months after Angelo was required to file an answer. The "Rules of the District Courts of Harris County, Texas, for the Trial of Civil Cases" provide a procedure for dismissal of cases which are not set for trial or tried within a reasonable period of time. Id. Rule 13. This case did not fall into that category of cases requiring utilization of that procedure.

Angelo further argues that he had an agreement with Champion's first attorney to dismiss the case and that he was justified in his belief that the cause had been abandoned. The record contains no evidence of such an agreement. We find no abandonment as a matter of law and accordingly overrule this last point of error.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

DUGGAN, Justice, dissenting.

On original submission, this court found that appellant had met the first two requirements of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939), in that the appellant's failure to answer was not due to conscious indifference, but was due to a mistake or an accident, and further, that appellant had set up a meritorious defense. However, we refused to order a new trial because the appellant had not met Craddock's third requirement, i.e., that the motion for new trial be filed at a time then the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. The appellant could have met this...