Munson v. State
| Decision Date | 06 December 1978 |
| Docket Number | No. 12853,12853 |
| Citation | 576 S.W.2d 440 |
| Parties | Elwood L. MUNSON, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Elwood L. Munson, James L. McManus, law intern, Austin, for appellant.
Davis Grant, Gen. Counsel, Claude E. Ducloux, Asst. Gen. Counsel, State Bar of Texas, Austin, for appellee.
Appellant seeks to overturn a default judgment of disbarment against him. The court overruled appellant's motion for new trial.
We will affirm the action of the trial court.
This case originated from complaints filed with the Grievance Committee for the State Bar of Texas District 9. After several hearings conducted by the Grievance Committee, it was of the opinion that the appellant herein should be disciplined for certain acts of professional misconduct. The Committee then offered Munson a term of suspension which he, as was his right, refused to accept.
Suspension may not be imposed by a Grievance Committee without the specific written consent of the accused; therefore, the Committee's only alternative was to seek discipline through the filing of a formal complaint in district court. Such a suit was filed in the district court against appellant alleging the acts of misconduct. He was served with citation on December 27, 1977. Appellant failed to file an answer by the appearance date, January 23, 1978, and a default judgment was entered against him on January 26, 1978.
Appellant is before us on three points of error; however, since we overrule his first point concerning his excuse for failure to answer, we do not reach the other points which are directed towards establishing a meritorious defense.
The first point assigns error of the trial court in overruling appellant's motion for new trial because the court did not follow the test set out in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), and in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966).
The test set out in Craddock and again in Ivy is as follows:
"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 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."
After a review of the testimony in this case, which lasted for the better part of two days, we conclude that appellant did not sustain his burden of showing that his failure to answer before judgment was not intentional, or the result of conscious indifference on his part. Consequently, we do not reach appellant's points asserting a meritorious defense.
The testimony in the record before us was offered, principally, by appellant and Terry L. Belt, an attorney in Austin. Belt, who had represented appellant before the Grievance Committee, gave testimony that was fully developed, clear and unequivocal. He testified that he told appellant, well before the deadline for filing an answer, that Belt would not represent him any further unless a fee of $5,000 was paid. Appellant then proposed he assign to Belt an oil royalty belonging to some woman in Houston. Belt agreed to this transfer believing that the royalty was for $870 a month, but also insisted upon receiving the royalty prior to filing an answer. As time passed and no royalty was forthcoming, Belt learned from appellant that the royalty was an annual payment and not monthly, so Belt declined to accept this arrangement. Belt then informed appellant that for a payment of $2,000, he would file an answer in the case. According to Belt, appellant stated next that he definitely could not come up with the necessary $2,000. At that point Belt informed appellant he was no longer representing appellant and that appellant should pick up his files from Belt. Appellant denies hearing Belt...
To continue reading
Request your trial
-
Ex parte Raborn
...§ 16(c); however, actual suspension by a committee may not be imposed without written consent of the accused, Munson v. State, 576 S.W.2d 440 (Tex.Civ.App.--Austin 1978) writ ref'd n.r.e. (In the case at bar trial counsel for applicants confirmed that his was "an agreed suspension.") Suspen......
-
Dunn v. Parker
...court determines the credibility of the witnesses and the weight to be given their testimony. Munson v. State, 576 S.W.2d 440, 441 (Tex. App.—Austin 1978, writ ref'd n.r.e.) (per curiam). "[C]onscious indifference" is "something other than an intentioned failure to appear." O'Connell, 843 S......
-
Utz v. McKenzie
...79 S.W.3d at 641;Jackson v. Mares, 802 S.W.2d 48, 50 (Tex.App.-Corpus Christi 1990, writ denied); Munson v. State, 576 S.W.2d 440, 441–42 (Tex.Civ.App.-Austin 1978, writ, ref'd n.r.e.); see also Evans, 889 S.W.2d at 269 (to determine if defendant's factual assertions are controverted, trial......
-
Metro A, LLC v. Polley
...Invs., Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex. App.—Fort Worth 1982, writ ref'd n.r.e.) (citing Munson v. State, 576 S.W.2d 440, 442 (Tex. Civ. App.—Austin 1978, writ ref'd n.r.e.)). In other words, while the cases citedabove state that a trial court may not disregard uncontroverted evide......