Martin v. Allman

• Decision Date: 17 February 1984
• Docket Number: No. 05-82-01267-CV,05-82-01267-CV
• Citation: 668 S.W.2d 795
• Parties: Alice MARTIN, Appellant, v. Peggy Mitchell ALLMAN, Appellee.
• Court: Texas Court of Appeals

Page 795

668 S.W.2d 795

Alice MARTIN, Appellant, v. Peggy Mitchell ALLMAN, Appellee.

No. 05-82-01267-CV.

Court of Appeals of Texas Dallas.

Feb. 17, 1984.

Lanny E. Perkins, Dallas, for appellant.

Lee S. Bane, Dallas, for appellee.

Before STEPHENS, WHITHAM and STEWART, JJ.

WHITHAM, Justice.

Although she had answered, appellant, Alice Martin, failed to appear in person or by attorney at trial. Martin appeals the money judgment rendered in favor of appellees, Peggy Mitchell Allman and Steven E. Allman, d/b/a Peggy Mitchell Associates. Upon learning of the judgment against her, Martin timely filed a motion for new trial. Although the record is silent on what action the trial court took on the motion, the briefs of the parties agree that the trial court overruled the motion. The present case presents this court with an unusual procedural question. What should this court's judgment be when (a) the trial court errs in excluding all of the evidence at hearing on motion for new trial which establishes one of the three conditions requiring a new trial and the other two conditions are met, (b) all the excluded evidence is brought forward by bill of exception, and (c) complaint is made of the exclusion by proper point of error? For the reasons that follow, we reverse the judgment of the trial court and remand for new trial.

In her first point Martin contends that the trial court abused its discretion in overruling her motion for new trial. In disposing of Martin's first point we must determine (1) whether on motion for new trial Martin established that her failure to appear at trial "was not intentional, or the result of conscious indifference on [her] part, but was due to a mistake or accident," (2) whether Martin set up a "meritorious defense" on motion for new trial and (3) whether granting of the motion "will occasion no delay or otherwise work an injury to [the Allmans]." Craddock v. Sunshine Bus Lines, 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939). We must make these determinations because as noted in Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966), the applicable rule on motion for new trial is the same whether a party seeks to set aside a judgment rendered on default for failure to appear and answer or to set aside a judgment rendered after a party, having filed an answer, failed to appear for trial. Thus, the applicable rule in either case is as stated in Craddock, 133 S.W.2d at 126:

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 an accident; provided the motion for 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. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.

We have no difficulty with the second and third conditions mentioned in Craddock; meritorious defense and delay or injury to the plaintiff.

The Meritorious Defense.

The record, the briefs, and oral argument suggest uncertainty and dispute as to whether this case was brought as a suit on a sworn account and as to whether Martin's sworn motion for new trial and attached affidavit would constitute a denial under oath. Martin's trial pleadings contained no denial under oath. The Allmans contend that the present case is a suit upon a sworn account under TEX.R.CIV.P. 185 and that Martin's failure to file the written denial under oath required by Rule 185 justifies the trial court's action in overruling Martin's motion for new trial. For reasons discussed below, we conclude that it is not necessary to decide whether the Allmans brought a suit on a sworn account under Rule 185 or whether Martin filed "a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true" as required by Rule 185. For the purposes of this opinion we assume, but do not decide, that the Allmans brought a proper suit on a sworn account and that Martin failed to file a proper denial under oath all as required of each of the parties under Rule 185.

A meritorious defense is one that, if proved, would cause a different result upon a retrial of the case. Perez v. Columbia Civic Center, Inc., 658 S.W.2d 341, 343 (Tex.App.--Corpus Christi 1983, no writ). A party's failure to file a counter-affidavit which conformed with Rule 185 does not preclude a party from asserting and proving an affirmative defense. Gayne v. Dual-Air, Inc., 600 S.W.2d 373, 375 (Tex.App.--Houston [14th Dist.] 1980, no writ).

Martin's trial pleadings alleged in pertinent part:

Defendant would allege that the Plaintiff delivered the merchandise and services subject to Plaintiffs' Original Petition in a damaged and unusable condition to a vast extent.

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Defendant would show that the commission sued for is not due because the services were not substantially performed as agreed.

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Defendant would show that all lawful offsets and credits have not been allowed.

In her sworn motion for new trial Martin alleged in pertinent part:

[T]he Defendant can and does set up the meritorious defense that the goods or services allegedly provided or performed by Plaintiffs were not in fact provided, or, in some cases, provided or performed defectively, or were not reasonably worth the prices charged by Plaintiffs. The facts contained in the Affidavit of ALICE MARTIN, attached and incorporated herein by reference, establish such defense precluding the Plaintiff's recovery on this cause of action.

Martin's affidavit attached to, and incorporated in, her motion for new trial reads in pertinent part:

I have read the Defendant's First Amended Original Answer, which is on file in this case. All the facts set forth in that Answer are within my personal knowledge and are true and correct. In particular, chairs provided to me by the Defendant, were delivered in a broken and unusable condition. Carpet delivered to me by Plaintiffs was defective in that it was not padded and to my personal knowledge, not worth the price charged me by Plaintiffs.

Furthermore, the statements in Plaintiffs' First Amended Original Petition concerning the amount of money which we had agreed to pay, are not true, since the total price was supposed to have been $5,500.00, of which $4,000.00 was in fact, paid. The remaining amount owed, $1,500.00, has not been paid due to the defects in the goods and services provided, including those mentioned in this Affidavit.

The defense of failure of consideration presupposes that there was a consideration in the first instance, but that it later failed. National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691, 692 (1935). We interpret Martin's allegations on motion for new trial of broken and unusable chairs delivered and unpadded carpet delivered as pleading the affirmative defense of failure of consideration. Evidence was offered at the hearing on motion for new trial supporting this affirmative defense of failure of consideration. Accordingly, we conclude that Martin's motion for new trial set up a meritorious defense. Craddock, 133 S.W.2d at 126.

Delay or Injury to the Allmans.

In the present case there is no evidence that the granting of the motion for new trial would have created any delay in bringing this case to trial or in any manner prejudiced the Allmans' cause of action. See Ward v. Nava, 488 S.W.2d 736, 739 (Tex.1972). In the present case, as in Ward, the party seeking a new trial established that if granted a new trial she is willing to pay the expenses and costs of the hearing of the motion for new trial in the setting aside of the judgment. Ward, 488 S.W.2d at 738-39. These costs can be assessed against Martin by the trial court in a final judgment, if any, to be entered on retrial. Ward, 488 S.W.2d at 738-39. Accordingly, we conclude that granting Martin's motion for new trial "will occasion no delay or otherwise work an injury to the [Allmans]." Craddock, 133 S.W.2d at 126.

The Failure to Appear.

Problems arise, however, concerning the first condition mentioned in Craddock, i.e., whether on motion for new trial Martin established that her failure to appear at trial "was not intentional, or the result of conscious indifference on [her] part, but was due to a mistake or accident." At the hearing on motion for new trial, Martin offered evidence that would establish these facts through the testimony of two attorneys she had employed, Mr. Larry E. Perkins and Mr. Tony Michael Kaufman. It is at this point that the procedural question surfaces. Following the Allmans' objections, the trial court excluded the testimony of Perkins and Kaufman. The testimony of Perkins and Kaufman was brought forward by bill of exception.

The testimony of Perkins and Kaufman established the following facts. Two months prior to trial setting Martin discharged the attorney who had appeared and answered in her behalf and she and her husband employed two new attorneys, Perkins and Kaufman. Perkins and Kaufman had the obligation to appear in the trial court at the time the present case was then set for trial on the merits and there represent Martin as attorneys at law at the trial on the merits which resulted in the judgment before us in this appeal. Perkins and Kaufman failed to do so. Confusion between these two new attorneys caused neither of the two new attorneys to appear at trial. The confusion arose because one of the new attorneys thought the other new attorney had filed federal bankruptcy proceedings for both Martin and her husband and obtained a stay of the state court proceedings in the present case. Bankruptcy proceedings, however, had been filed only on behalf of Martin's husband; there was no stay of the ...