Lowe v. Lowe

• Decision Date: 18 June 1998
• Docket Number: No. 14-96-01329-CV,14-96-01329-CV
• Citation: 971 S.W.2d 720
• Parties: Kerri LOWE, Appellant, v. Jerome Jason LOWE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 720

971 S.W.2d 720

Kerri LOWE, Appellant, v. Jerome Jason LOWE, Appellee.

No. 14-96-01329-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

June 18, 1998.

Ronald R. Pope, Richmond, for appellant.

Lenette Terry, Kelly McClendon, Angleton, for appellee.

Before MURPHY, C.J., HUDSON and FOWLER, JJ.

OPINION

FOWLER, Justice.

Kerri Lowe ("Mrs.Lowe") appeals a default judgment in favor of Jerome Jason Lowe ("Mr.Lowe") in his suit affecting the parent child relationship. In the default judgment, the trial judge granted the divorce, appointed Mr. Lowe sole managing conservator of the couple's two children, appointed Mrs. Lowe possessory conservator of the two children, set child support, and divided the marital estate. Mrs. Lowe appeals on seven points of error. We reverse and remand for a new trial.

THE CONTROVERSY

On July 15, 1996, the trial in the Lowe's divorce was scheduled to begin. At 9:00 a.m., the case was called for trial. Mr. Lowe's attorney, Lenette Terry ("Terry"), announced ready, but Mrs. Lowe's attorney, Greg Donnell ("Donnell"), announced not ready. Donnell then presented the trial court with a motion for continuance. In this motion for continuance, Donnell presented an order signed by another district Judge in a case in which Donnell was the ad litem, requiring Donnell to examine and to inspect certain books and records at 10:00 a.m. on July 15, 1996. The order also contained a protective order which prohibited/protected Donnell from appearing at any and all trial settings for the period of July 15-19. The trial judge in this case asked Donnell if he had anything else to present. When Donnell answered "no," the judge overruled the motion for continuance and told Donnell to be back at 10:30 a.m. to start selecting a jury in the Lowe divorce case. Donnell failed to show at 10:30 a.m. Promptly at 10:35 a.m., the trial judge began the trial in the Lowe divorce. The trial judge made no effort to locate Donnell other than to repeatedly ask whether Donnell was present in the courtroom. The judge proceeded with the trial without Donnell and Mrs. Lowe. After hearing evidence, the judge entered a default judgment for Mr. Lowe, (1) giving him custody of the couple's two young children, who were 3 and 5 years old at the time of the divorce, (2) awarding him the parties' home and other properties, and (3) ordering Mrs. Lowe to pay child support.

Mrs. Lowe, although she was a party to the divorce, did not know that these events were unfolding. Her lawyer, Donnell, had told her he had already obtained a continuance and that the trial was rescheduled. In her sworn affidavit attached to her motion for new trial, Mrs. Lowe explained that when he told her about the trial date continuance, Donnell gave her a timetable of when certain events should be completed to get the case ready for trial. The document contained things such as amending the original petition, amending answers to discovery requests, drafting a motion for contempt, preparing an inventory and appraisement, preparing witnesses for trial, and preparing the jury charge (which was dated "08-12/08-16"). Mrs. Lowe attached the document, prepared by Donnell on July 9, 1996, to her motion for new trial. The timetable stretched the discovery and preparation process from July 12, 1996 to August 16, 1996. See Appendix. Mrs. Lowe stated that if she had known that the trial was set for July 15, 1996, she would have attended court even without her attorney. But, she simply did not know about it. As it was, the only events listed for July 15 on the timetable she had was a review of amended discovery answers, a reminder to draft a motion for contempt, and the preparation of the inventory and appraisement.

After the motion for new trial, the judge made the following findings of fact that have not been challenged on appeal:

3. The Court finds that Gregory Donnell, the attorney of record for respondent, was present and announced "not ready" at the call of the case for trial at 9:00 a.m. on 15 July 1996.

4. The Court finds that Gregory Donnell presented his motion for continuance to the Court at 9:00 a.m. on 15 July 1996, was offered the opportunity to present anything additional to his motion and declined to present any evidence in support of his motion.

5. The motion for continuance presented by Gregory Donnell was denied and counsel for both parties were instructed that jury selection would commence at 10:30 a.m. on 15 July 1996.

6. The Court finds that neither Gregory Donnell nor respondent appeared at 10:30 a.m. on 15 July 1996.

14. The Court finds that petitioner waived a jury. That respondent waived a jury by her absence and that of Gregory Donnell. All questions of fact and of law were submitted to the Court.

DISCUSSION AND HOLDINGS

In seven points of error, Mrs. Lowe contends the trial court erred by rendering the default judgment against her, by improperly awarding managing conservatorship to Mr. Lowe, and by improperly dividing the marital estate. We need only address Mrs. Lowe's second point of error. In her second point of error, Mrs. Lowe contends the trial court erred in failing to grant her motion for new trial because she met the three prong test for a new trial after a default judgment. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). We agree.

Citing to Craddock, Mrs. Lowe argues that the trial judge should have granted her motion for new trial because her failure to appear was the result of an accident or mistake and not the result of her own conscious indifference. See id., 133 S.W.2d at 126. Mr. Lowe responds that Mrs. Lowe cannot claim that her failure to appear was an accident or not the result of conscious indifference because she is charged with her attorney's knowledge and actions. Mr. Lowe also maintains that Mrs. Lowe's motion for new trial did not present a meritorious defense.

Since 1939, Craddock has been the seminal case setting forth the elements of proof a defaulting party must show to obtain a new trial following a default judgment. See Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390 (Tex.1993). The test set out in Craddock has not changed since it was first written. It contains three prongs, each of which a defaulting party must satisfy. ¹

1. Present facts showing that the failure to appear was not intentional or the result of conscious indifference but was due to accident or mistake;

2. Set up a meritorious defense; and

3. File the motion for new trial when it would not cause delay or otherwise injure the prevailing party.

Craddock, 133 S.W.2d at 126. Although Craddock was a no answer default judgment, the Supreme Court has held that it applies to post answer default judgments as well. See LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex.1989). In addition, Craddock has been applied to all cases in which a default judgment has been entered, including divorce proceedings. See Prince v. Prince, 912 S.W.2d 367, 369-70 (Tex.App.--Houston [14th Dist.] 1995, no writ); Burgess v. Burgess, 834 S.W.2d 538, 539 (Tex.App.--Houston [1st Dist.] 1992, no writ); cf. Little v. Little, 705 S.W.2d 153, 153-54 (Tex.App.--Dallas 1985, writ dism'd) (stating that although the Craddock test is applicable to motions for new trial after a default judgment in a divorce action, it may be superceded by the best interest of the child test).

As to the first prong of Craddock, Mr. Lowe is right: to meet Craddock, one must prove that the failure to answer or appear was not the intent of the party or her agent, or the result of the party's or her agent's, conscious indifference. See Director, State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266, 269 (Tex.1994); Estate of Pollack, 858 S.W.2d at 391; Holt Atherton Indus. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). This rule has been applied consistently by the courts. We have reviewed each of these cases and they fall into one of four categories. In the first category, the case law showed that when both the agent and the party acted intentionally or with conscious indifference the party has not passed the Craddock test. See Holt Atherton Indus., 835 S.W.2d at 83. In the second category, the case law showed that when the client was partly responsible, either through intentional or conscious indifference, the party failed to pass the Craddock test. See P & H Transp., Inc. v. Robinson, 930 S.W.2d 857, 861 (Tex.App.--Houston [1st Dist.] 1996, writ denied), Baker v. Kunzman, 873 S.W.2d 753, 755 (Tex.App.--Tyler 1994, writ denied); Wells v. Southern States Lumber and Supply Co., 720 S.W.2d 227, 229 (Tex.App.--Houston [14th Dist.] 1986, no writ). In the third category of cases, the case law showed that when the agent was negligent and the record was silent as to the client's culpability, the party failed to meet Craddock. See Waste Water, Inc. v. Alpha Finishing & Developing Corp., 874 S.W.2d 940, 942-44 (Tex.App.--Houston [14th Dist.] 1994, no writ). In the fourth category, the case law showed that when the party took action initially by sending the citation to the agent, but the record was silent as to the actions taken by the agent, the party could not pass Craddock. See Memorial Hospital Sys. v. Fisher Ins., 835 S.W.2d 645, 652 (Tex.App.--Houston [14th Dist.] 1992, no writ).

But this case does not fall under any of those categories. In fact, we have been unable to find a single case like this one, where the client made an uncontroverted showing by affidavit at the motion for new trial that she was absolutely free of responsibility for the failure to appear and showed, instead that the failure to appear was caused by her lawyer's misrepresentation or at least, his failure to meet his professional duties to his client. We hope we have been unable to find such a case because it has never happened before. We suspect that is not the case.

Nonetheless, we hold that in this case, where (1) the lawyer has misled the client, or wholly failed to perform his or...