Europa Cruises Corp. v. AFEC Intern.

Decision Date02 May 1991
Docket NumberNo. B14-90-0692-CV,B14-90-0692-CV
Citation809 S.W.2d 783
PartiesEUROPA CRUISES CORP., Appellant, v. AFEC INTERNATIONAL, Appellee. (14th Dist.)
CourtTexas Court of Appeals

William A. Short, Jr., Houston, for appellant.

Kent J. Pagel, Houston, for appellee.

Before PAUL PRESSLER, JUNELL and ELLIS, JJ.

OPINION

ELLIS, Justice.

This is an appeal from a default judgment. We reverse and remand.

Appellant, Europa Cruises Corporation, ("Europa") assigns two points of error on appeal. In its first point of error, appellant asserts that the trial court erred in overruling appellant's motion to vacate judgment and for a new trial. In its second point of error, appellant contends that the trial court erred in granting triple damages of the amount of actual damages in excess of $1,000 as there was no finding that the conduct of the defendant was intentional.

Appellee, AFEC International, Inc., ("AFEC") filed its original petition against Europa Cruises Corporation, on March 26, 1990. Appellee's original petition alleged that it had purchased a Christmas cruise ship package aboard the M/V Europa Jet from Europa Cruises Corporation. This cruise was for the benefit of AFEC's employees as a Christmas party. When AFEC's employees boarded the cruise ship at Galveston, they found that the ship and its facilities were not as represented by Europa. AFEC's employees then disembarked from the ship, making on-shore arrangements for their party. Europa refused to return AFEC's monies which were paid in advance for the cruise. AFEC then sued for the return of these monies, and also for consequential damages, attorneys fees, and damages pursuant to the DTPA § 17.50(b). TEX.BUS. AND COM.CODE ANN. (Vernon Supp.1991). Europa did not answer, and AFEC took a default judgment on May 22, 1990. The trial court denied Europa's Motion to Vacate Default Judgment and for New Trial on June 20, 1990. Europa brings this appeal.

In its first point of error, Europa asserts that the trial court erred in overruling its motion to vacate judgment and for new trial. The granting of a new trial following a default judgment is within the sound discretion of the trial court. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (Tex.Comm'n App.1939). The standard of review as set out in Craddock requires appellant to demonstrate that his failure "to answer was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident...." Craddock 133 S.W.2d at 126. In addition, the appellant must demonstrate that he has a meritorious defense and that the granting of a new trial will not prejudice the appellee.

The undisputed facts reveal that AFEC's suit was filed on March 26, 1990. Service of citation was had on CT Corporation Systems, who was the registered agent for Europa for service, in Dallas, Texas on April 11, 1990. The answer date was May 7, 1990. CT Corporation Systems forwarded the citation to the Europa headquarters in Pensacola, Florida and the citation was received by Europa in Pensacola on April 12, 1990. Mr. Charles Liberis, President of Europa, sent the citation and attached petition to the Galveston, Texas general manager with instructions to obtain local counsel to file an answer. It was Europa's policy that the general manager in each separate port handle his office's litigation and retain counsel unless the matter is something that affects the company overall, such as an SEC matter. Whenever Europa has litigation such as in our case the matter is forwarded to the proper general manager to obtain counsel.

The general manager of the Europa operation in Galveston, Texas at the time of the alleged wrong in December, 1989 was John Noah. However, as of April 12, 1990, Mr. Noah had resigned as general manager and was acting in a consulting role. One of the several interim managers of the Galveston office was Harry Fulghum, a marine captain. It was not until May of 1990 that Mr. Steve Winters was retained as full time general manager. At the hearing on the Motion for New Trial, Mr. Liberis testified that "the reality of it is that no one was properly running the shop between the time Noah left and the time Winters came on. Harry Fulghum, who's primarily there in a caretaker position is a marine captain ... he is not a person of any business experience." Just before May 23, 1990, Steve Winters discovered the petition previously sent to the Galveston office and informed Mr. Liberis who immediately contacted legal counsel who, in turn, filed an answer the very same day, May 23, 1990.

We will now determine whether there is an excuse for the failure by Europa to answer timely. Europa timely responded to pre-suit correspondence upon receipt of AFEC's January 5, 1990 DTPA notice letter. It is noted that Liberis responded with a three page answer, addressing all of AFEC's allegations. Europa was under no legal requirement to respond to AFEC's DTPA notice letter. The fact that Europa did respond, belies AFEC's argument that Europa's failure to answer timely was intentional.

Europa alleges that in the period between the resignation of John Noah and the hiring of the new general manager, Steve Winters, "... the management situation in Galveston was sheer chaos." This "chaos" resulting from a change in management in Galveston was the reason why Europa failed to timely file an answer. Only a slight excuse is required. Craddock v. Sunshine Bus Lines, supra; Spears v. Brown, 567 S.W.2d 544 (Tex.Civ.App.--Texarkana 1978, writ ref'd n.r.e.). Courts in Texas have held that any showing by the defendant that he has not intentionally or with conscious indifference ignored his obligation to answer or appear is sufficient. The case of Nava v. Nationwide Financial Corp., 601 S.W.2d 478 (Tex.Civ.App.--San Antonio 1980, writ ref'd n.r.e.) states on page 481:

All recent opinions indicate that the trial court's discretion, concerning the granting of the new trial, should be exercised liberally where there is any showing that the defendant has not intentionally or with conscious indifference ignored his obligation to...

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6 cases
  • Garner v. State, 01-92-00073-CR
    • United States
    • Texas Court of Appeals
    • August 12, 1993
  • State and County Mut. Fire Ins. Co. v. Williams
    • United States
    • Texas Court of Appeals
    • June 4, 1996
    ...will not bar a new trial so long as the failure to attend the trial was not the result of conscious indifference. Europa Cruises Corp. v. AFEC Int'l, 809 S.W.2d 783 (Tex.App.--Houston [14th Dist.] 1991, no writ); Gotcher v. Barnett, 757 S.W.2d 398 (Tex.App.--Houston [14th Dist.] 1988, no wr......
  • State v. Sledge, 14-96-01511-CV
    • United States
    • Texas Court of Appeals
    • December 10, 1998
    ...State & County Mut. Fire Ins. Co. v. Williams, 924 S.W.2d 746, 748-49 (Tex.App.--Texarkana 1996, no writ); see also Europa Cruises Corp. v. AFEC Int'l, 809 S.W.2d 783, 785-86 (Tex.App.--Houston [14th Dist.] 1991, no writ) (holding that the failure to answer was excused where the general man......
  • Batiste v. State
    • United States
    • Texas Court of Appeals
    • June 18, 1992
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