Jackson v. Mares

• Decision Date: 13 December 1990
• Docket Number: No. 13-89-420-CV,13-89-420-CV
• Citation: 802 S.W.2d 48
• Parties: Mark Edward JACKSON, et al., Appellants, v. Adelina MARES, Appellee.
• Court: Texas Court of Appeals

Page 48

802 S.W.2d 48

Mark Edward JACKSON, et al., Appellants, v. Adelina MARES, Appellee.

No. 13-89-420-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 13, 1990.

Rehearing Overruled Jan. 10, 1991.

Roger W. Hughes, Leo C. Salzman, Adams & Graham, Harlingen, for appellants.

Frank J. Enriquez, Ortiz, Garcia, Gonzalez & Enriquez, McAllen, Juan E. Gonzalez, Law Offices of Juan E. Gonzalez, Edinburg, for appellee.

Before NYE, C.J., and KEYS and SEERDEN, JJ.

OPINION

KEYS, Justice.

Mark Edward Jackson and Bullard Sheet Metal and Roofing Company (Bullard) appeal from a default judgment rendered against them and in favor of Adelina Mares for $200,000 for physical injuries resulting from an automobile accident. At the time of the accident, Mark Edward Jackson was acting as the employee of Bullard, a family business being operated as a partnership between Mark and his brother, Marvin Jackson. Appellants raise nine points of error. We reverse and remand for a new trial.

By their first four points of error, appellants complain that the trial court abused its discretion and erred in overruling their motion for new trial. A motion for new trial is addressed to the sound discretion of the trial judge, whose ruling will not be disturbed on appeal in the absence of a showing of an abuse of that discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984).

A default judgment should be set aside if appellants establish: (1) that the failure to answer was neither intentional nor the result of conscious indifference, (2) that the failure to answer was due to mistake or an accident, (3) that the defendant has a meritorious defense, and (4) that the defendant's motion was filed at a time when the granting thereof would occasion no delay or otherwise work an injury to plaintiff. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Comm'n App.1939, opinion adopted); see also Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966).

Appellee filed her Original Petition on May 16, 1989, and appellants were served on May 26, 1989, by delivery of citations to Mark Edward Jackson. On June 22, 1989, appellee took a default judgment against appellants, who on June 26, 1989, filed a Motion for New Trial, alleging the elements set out by Craddock.

Mark Edward Jackson testified at the new trial hearing that he received the citations on May 26, 1989, and entrusted them to his brother, Marvin Jackson. Marvin testified that on June 12, 1989, he attempted to deliver these citations to Brinkley Oxford, an attorney who was currently representing the Jacksons in another, unrelated matter. Although Oxford was not in his office at the time Marvin delivered the citations, his receptionist received them for Oxford and put them with his mail.

Oxford stated by affidavit and testified at the hearing that, when he saw the documents in his mail that day, he did not recognize them as citations, but assumed that they were documents related to the other matter in which he represented appellants, and he filed them accordingly. Oxford's firm had a policy of not accepting documents without an attorney's permission, but Oxford had left instructions at that time for the staff to accept papers from Marvin in connection with the other matter. Later, when Oxford happened to be at the courthouse on other matters on June 22, 1989, he learned that the present default judgment had just been taken, and he then realized that the documents left at his office by Marvin were citations. However, Oxford's testimony was controverted by appellee's lawyer, Juan E. Gonzalez, who testified that Oxford had approached him immediately after the default judgment was taken, and told Gonzalez that he had "forgotten" about the citations left on his desk. The trial court denied the motion for new trial, concluding that appellants' failure to answer was the result of conscious indifference.

By their second point of error appellants complain that they conclusively proved that their failure to file an answer was due to accident or mistake and was not intentional or the result of conscious indifference. Some excuse, but not necessarily a good excuse, is enough to warrant setting aside a default judgment, so long as the act or omission causing the defendant's failure to answer was, in fact, accidental. Craddock, 133 S.W.2d at 125; Ferguson & Co. v. Roll, 776 S.W.2d 692, 695 (Tex.App.--Dallas 1989, no writ). 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. Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex.1984); Dupnik v. Aransas County Navigation District No. 1, 732 S.W.2d 780 (Tex.App.--Corpus Christi 1987, no writ).

However, where the non-movant presents evidence at the new trial hearing tending to show intentional or consciously indifferent conduct, it becomes a question for the trial court to determine. See Ivy, 407 S.W.2d at 214; Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574, 576 (Tex.App.--Dallas 1989, no writ); Reedy Co. v. Garnsey, 608 S.W.2d 755, 757 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.); Dallas Heating Co. v. Pardee, 561 S.W.2d 16, 20 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.); Healy v. Wick Building Systems, Inc., 560 S.W.2d 713, 721 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.) (on rehearing); contra Peoples Savings and Loan Association v. Barber, 733 S.W.2d 679 (Tex.App.--San Antonio 1987), writ dism'd by agr., 742 S.W.2d 276 (Tex.1987).

In the present case, evidence concerning the Jacksons' receipt and delivery of citation to Oxford's office was uncontroverted. It is arguable that the mere delivery of citation to an attorney's office, without any agreement by the attorney to accept the case, would amount to consciously indifferent conduct. See Brothers Department Store, Inc. v. Berenzweig, 333 S.W.2d 445 (Tex.Civ.App.--San Antonio 1960, writ ref'd n.r.e.); Grammar v. Hobby, 276 S.W.2d 311 (Tex.Civ.App.--San Antonio 1955, writ ref'd n.r.e.). However, where as in the present case the appellants were being represented by the attorney on other matters at the time and had his authorization to deliver documents to the office staff in his absence, it seems reasonable, or at least not consciously indifferent, for the appellants to expect Oxford to review the citation and either file an answer or contact them if he chose to decline to represent them in the present case.

Concerning Oxford's conduct, when a defendant's excuse is his reliance on a third party agent or attorney to file his answer or to notify him of a trial setting, he must similarly prove that the third party's failure was due to accident or mistake and was not intentional or the result of conscious indifference. Ferguson & Co. v. Roll, 776 S.W.2d 692, 697 (Tex.App.--Dallas 1989, no writ); Carey Crutcher, Inc. v. Mid-Coast Diesel Services, Inc., 725 S.W.2d 500, 502 (Tex.App.--Corpus Christi 1987, no writ). Oxford's alleged failure to recognize the citations, if uncontradicted, would be sufficient to negate intentional or consciously indifferent conduct. See Ward v. Nava, 488 S.W.2d 736, 738 (Tex.1972); Guardsman Life Insurance Co. v. Andrade, 745 S.W.2d 404 (Tex.App.--Houston [1st Dist.] 1987, writ denied); Royal Zenith Corp. v. Martinez, 695 S.W.2d 327, 329-30 (Tex.App.--Waco 1985, no writ).

However, Gonzalez' testimony that Oxford admitted to forgetting about the citations is inconsistent with Oxford's contention that he did not recognize the documents in question as citations until after the default judgment was taken. The court, as fact-finder at a hearing on a motion for new trial, has the duty of ascertaining the true facts surrounding the default circumstances, and it is within the court's province to judge the credibility of the witnesses and to determine the weight to be given their testimony. Royal Zenith Corp. v. Martinez, 695 S.W.2d 327, 330 (Tex.App.--Waco 1985, no writ); see also Ryan v. Morgan Spear Associates, Inc., 546 S.W.2d 678, 685 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.). Nonetheless, we hold that evidence that Oxford may have "forgotten" about the citations does not establish that the failure to answer was intentional or the result of conscious indifference within the meaning of Craddock and its progeny. See Ward v. Nava, 488 S.W.2d 736, 738 (Tex.1972) (after finding papers, plaintiff forgot to take them the next day to his insurance agent, delivering them the following day by which time a default judgment had been entered); Republic Bankers Life Insurance Co. v. Dixon, 469 S.W.2d 646, 647 (Tex.Civ.App.--Tyler 1971, no writ) (attorney forgot to prepare answer when his secretary placed the file with his general files rather than returning it to his desk for immediate action). See also Webster's New Twentieth Century Unabridged Dictionary 719-20 (2nd ed. 1980), which defines "forget" as "1. to lose remembrance of; to let go from the memory; to fail to recall; to be unable to remember; 2. to fail to do (what one intended) because of carelessness or thoughtlessness; to overlook, omit, or neglect unintentionally; 3. to overlook, omit, or neglect intentionally; as, the successful candidate forgot the wishes of the voters," and which defines "forgetfulness" as "1. the quality of being apt to forget; 2. loss of remembrance or recollection; 3. neglect; negligence; careless omission; inattention." (Emphasis Added). Nor was Oxford required to show that he acted reasonably or that he was free from negligence. Ferguson & Co. v. Roll, 776 S.W.2d 692 (Tex.App.--Dallas 1989, no writ); see also State Farm Life Insurance Co. v. Mosharaf, 794 S.W.2d 578 (Tex.App.--Houston [1st Dist.] 1990, writ denied) (holding the controlling factor to be "the absence of a purposeful or bad faith failure to answer ... [and] even a slight excuse will suffice.")

By their third point of error appellants complain...