Gardner v. Jones

• Decision Date: 03 August 1978
• Docket Number: No. 17045,17045
• Parties: Don GARDNER, Appellant, v. Horace JONES, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 198

570 S.W.2d 198

Don GARDNER, Appellant, v. Horace JONES, Appellee.

No. 17045.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Aug. 3, 1978.

Robert J. Barr, Houston, for appellant.

Thurlow & Hennessy, Thomas N. Thurlow, Houston, for appellee.

EVANS, Justice.

This is an appeal from a judgment entered after the defendant had answered but had failed to appear at trial.

The appellee, Horace Jones, alleged the conversion by Gardner of a produce stand and other personal property. Jones claimed damages of $2,000.00 for the loss of the stand, $10,000.00 for loss of his business, and $25,000.00 as punitive damages.

Gardner, acting pro se, timely filed an answer alleging that he had sold the produce stand and equipment to Jones, who had failed to pay the total amount due on the agreed purchase price. Gardner alleged that after he had made repeated requests to Jones for payment of the balance due, he sought advice from the district attorney's office and was advised that he could legally repossess the building and equipment. Gardner further alleged that he had tried to return the personal items found in the stand to Jones, but that Jones refused to accept the tendered items. Gardner denied that Jones had suffered any business loss because the produce stand was already "closed down" at the time of repossession.

The trial on the merits was held on July 5, 1977. Gardner was not present at the trial. After hearing the evidence, the trial court awarded judgment to Jones in the amount of $4,000.00, and a copy of the judgment a motion for new trial was filed on Gardner's behalf. The trial court overruled this motion and Gardner appeals.

It is Gardner's contention that his failure to appear for trial was not intentional nor the result of conscious indifference, but rather was due to a mistake on his part, that he has a meritorious defense to the action, and that Jones will not suffer undue delay or hardship by reason of a remand for trial.

At the hearing on Gardner's motion for new trial, he testified that he had first received a request for trial setting filed by Jones' counsel, notifying that the case would be set for June 20, 1977. After receiving a second request for setting for July 5, 1977, Gardner went to the office of the deputy district clerk in the court in which the case was pending, and asked which date he was supposed to appear for trial. The clerk advised him that he "would be notified when to appear," and he advised the clerk that he intended to represent himself in the proceedings. He had previously been involved in a criminal proceeding which arose out of the instant transaction, and in that case he had been notified to appear by a "document" served through the constable's office. He testified that after he talked with the civil district clerk concerning the instant case, he assumed that he would be notified in the same manner. He was familiar with the procedure for setting cases for trial in the civil district courts in Harris County, and he did not draw any distinction between the practices of the civil and the criminal district courts. He was in fact available to appear for trial during the weeks of June 20 and July 5, and if he had known the case would be called for trial, he would have appeared. On July 7, after receiving a card in the mail informing him that a $4,000.00 judgment had been entered against him, he contacted his present counsel.

The same rule is applicable to motions for new trial which seek to set aside judgments entered on the failure of the defendant to appear for trial as those which have been entered on the failure of the defendant to file an answer. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966).

"A default judgment should be set aside and a new trial ordered in any case in which the 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 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." Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939).

Where the facts demonstrate that the defendant's failure to appear for trial was due to some misunderstanding on his part, the first test of Craddock is met. Ivy v. Carrell, supra; O'Hara v. Hexter, 550 S.W.2d 379, 382 (Tex.Civ.App.-Dallas 1977, writ ref'd n. r. e.); Dallas Heating Co. v. Pardee, 561 S.W.2d 16 (Tex.Civ.App.-Dallas 1977, writ ref'd n. r. e.); Baen-Bec, Inc. v. Tenhoopen, 548 S.W.2d 799 (Tex.Civ.App.-Eastland 1977, no writ). In the case before the court, the record affirmatively shows that Gardner's failure to appear for trial was due to his mistaken belief that he would receive further notification concerning the date upon which he was to appear. His actions do not support the conclusion that his failure to appear for trial was due to his intentional failure or to a conscious indifference.

The second requirement set forth in Craddock is that the defendant's motion for new trial must "set up" a meritorious defense by allegations supported by affidavits or other evidence which establish a prima facie defense to the plaintiff's action. Ivy v. Carrell, supra; Bredeson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 513 S.W.2d 110, 112 (Tex.Civ.App.-Dallas 1974, no writ).

In his motion for new trial, Gardner alleged that during the month of ...