State v. Sledge, 14-96-01511-CV

• Decision Date: 10 December 1998
• Docket Number: No. 14-96-01511-CV,14-96-01511-CV
• Citation: 982 S.W.2d 911
• Parties: The STATE of Texas, Appellant, v. William L. SLEDGE, William Rogers Sledge, Attorney-in-fact For William L. Sledge, & The Estate Of Gladys L. Sledge, William Robert Sledge, Independent Executor, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 911

982 S.W.2d 911

The STATE of Texas, Appellant, v. William L. SLEDGE, William Rogers Sledge, Attorney-in-fact For William L. Sledge, & The Estate Of Gladys L Sledge, William Robert Sledge Independent Executor, Appellees.

No. 14-96-01511-CV.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 10, 1998.

Cavitt Wendlandt, Susan Desmarais Bonnen, Austin, for appellant.

James W. Bradford, Richard L. McElya, William D. Noel, Angleton, for appellees.

Before Chief Justice MURPHY and Justices YATES and O'NEILL.

OPINION

LESLIE BROCK YATES, Justice.

The State of Texas appeals from a default judgment in a cross-action severed from a statutory condemnation case. The State raises twelve points of error. We reverse and remand.

Factual and Procedural Background

The State sought to condemn land to be used as a disposal site for dredge material collected from the Gulf Intracoastal Waterway. In their original petition for condemnation, the State sought 16.451 acres of land, described as a "4 acre tract of land, together with accretions." This description of the land remained the same in their second amended petition. In the State's third amended petition, however, the State changed its description of the property to a 4 acre tract and did not mention the accretions that added another 12 acres. The State claimed it made this change because the appellees only had record title to 4 acres. Appellees argued this change was an attempt to take 16 acres while paying for only 4 acres.

The commissioners entered an award, describing the property condemned as a 16.451 acre tract, including 4 acres, together with accretions. The commissioners awarded damages of $76,436.00 and the State filed objections to this award. Upon the filing of the State's objections, appellees filed their cross-action, alleging the State had entered their property on or about January 1, 1978, entitling appellees to interest on the commissioner's award from that date forward. Alternatively, appellees requested an amount equalling the property's reasonable rental value plus damages should the cause be dismissed. Appellees contended the court was without jurisdiction to grant the State relief because the State refused to negotiate in good faith before seeking to condemn the property. Furthermore, appellees argued the State's conduct was unconscionable, arbitrary, capricious and in violation of the Federal and Texas Constitutions. Finally, appellees included notice that they intended to seek fees, expenses, and reasonable attorney's fees under Texas Civil Practices and Remedies Code section 105.003 if appellees were successful or if the cause was dismissed. ¹

A discovery dispute occurred and appellees filed a motion for sanctions. The court ordered the State to respond to a discovery request and held in abatement any ruling on the motion for sanctions. Thereafter, appellees filed a second motion for sanctions. The court entered an order finding that the State had "engaged in a deliberate course of conduct to harass, intimidate and coerce Defendants." The court granted the motion and struck all of the State's pleadings filed after entry of the commissioner's award. The court severed the cross-action, transforming the sanctions order into a final judgment. The State pursued appellate and original proceeding relief with respect to this judgment. Motion for leave to file petition for writ of mandamus was overruled by the First Court of Appeals in October 1992. The appeal came to this court and the trial court's judgment was affirmed in April 1994. The supreme court denied writ in September 1994.

In the severed cross-action, no activity occurred from the date of severance (June 1992) until a hearing held on July 15, 1996. A notice dated April 23, 1996 was mailed to Oliver Price, assistant attorney general, advising that the cause was set for trial or dismissal docket at 9:00 a.m. on July 15, 1996. The State did not appear. The statement of facts reveals the court convened at 10:41 a.m. and sent the bailiff to page the State. When the State did not appear, the trial court allowed appellees to present evidence on their cross-action. The court awarded judgment on August 23, 1996 in favor of appellees for $204,547.53. ²

The State filed a request for findings of fact and conclusions of law and an amended motion for new trial. In its motion for new trial, the State alleged it met the Craddock ³ requirements. The State filed a motion for leave to file a supplemental motion for new trial, claiming the judgment was void under TEX. CIV. PRAC. & REM.CODE ANN. §§ 39.001-.002 (Vernon 1997). On October 8, 1996, the trial court held a hearing on the State's amended motion for new trial. The State offered testimony at the hearing. On October 28, 1996, the trial court denied the motion for new trial. The court subsequently held a rehearing on the State's amended motion for new trial and, despite having denied leave to file the supplemental motion for new trial, allowed the State to present argument regarding a section 39.002 violation. The trial judge sent all parties a letter stating his intention to deny the rehearing on the amended motion for new trial and first supplemental motion for new trial. The court asked appellees' counsel to prepare an order to this effect, however, no such order appears in the transcript.

Motion for New Trial

In point of error four, the State claims the trial court erred in failing to grant the motion for new trial because the State established it met the Craddock requirements. These requirements include:

(1) the appellant's failure to answer was not intentional, or the result of conscious indifference, but was due to a mistake or accident;

(2) the motion for new trial sets up a meritorious defense; and

(3) the motion for new trial is filed when the granting will not occasion a delay or otherwise work an injury to the appellees.

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). The supreme court has held that these requirements apply to post-answer default judgments. See Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987).

Appellees do not dispute that the State satisfied the second and third prongs of the Craddock test. Thus, the only issue is whether the State's failure to appear was intentional or the result of conscious indifference. Conscious indifference means failing to take some action which would seem indicated to a person of reasonable sensibilities under similar circumstances. See Prince v. Prince, 912 S.W.2d 367, 370 (Tex.App.--Houston [14th Dist.] 1995, no writ); see also Guardsman Life Ins. Co. v. Andrade, 745 S.W.2d 404, 405 (Tex.App.--Houston [1st Dist.] 1987, writ denied) (holding that for negligence to rise to level of conscious indifference, evidence must show "appellant was clearly aware of the situation and acted contrary to what such awareness dictated."). In determining whether the failure to appear was intentional or the result of conscious disregard, we must look to the knowledge and acts of the State. See Director, State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266, 269 (Tex.1994).

To set aside a default judgment, the State need only show a slight excuse for failing to appear. See State & County Mut. Fire Ins. Co. v. Williams, 924 S.W.2d 746, 748-49 (Tex.App.--Texarkana 1996, no writ); see also Europa Cruises Corp. v. AFEC Int'l, 809 S.W.2d 783, 785-86 (Tex.App.--Houston [14th Dist.] 1991, no writ) (holding that the failure to answer was excused where the general manager in charge of answering the petition resigned, and a new manager was retained after the answer due date). A failure to appear is not intentional or due to conscious indifference merely because it was deliberate; it must also be without adequate justification. See Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.1995). Conscious indifference means more than mere negligence. See id.

At the October 8, 1996 hearing on the amended motion for new trial, assistant attorney general Mark Heidenheimer conceded he received notice of the "try or dismiss" docket hearing, but did not appear. The notice, dated April 23, 1996, and addressed to Oliver Price of the Attorney General's Office and to Richard McElya, attorney for appellees, stated the following:

Judge James Blackstock has set the above styled and numbered cause for trial or dismissal docket at 9:00 a.m. on July 15, 1996, in County Court at Law No. 3 and Probate Court, Brazoria County, Texas (Room 300).

Heidenheimer testified that the lead attorney on the case, Oliver Price, retired in November 1993, and had never opened a separate file for the cross-action or made provision for substitution of counsel when he retired. Mistakenly believing the case was closed, Heidenheimer testified he prepared a formal memorandum to the Texas Department of Transportation, closed the file and sent it to storage. Heidenheimer also testified he thought the case would be dismissed because he thought appellees had received all the relief they wanted in the condemnation case.

Heidenheimer further testified he was unable to reach the opposing attorney, Richard McElya, by telephone. Heidenheimer stated that he called the correct number but got an answering machine that did not identify the location as McElya's office. Heidenheimer did not try to call again, claiming he had a mistaken belief McElya was no longer practicing law and had disconnected his phone. ⁴

Heidenheimer admitted he did not call the clerk's office regarding the notice; however, he claimed that, because of his previous experience, he misinterpreted the notice. He stated that he believed this type of notice merely meant the case would be dismissed for want of prosecution if the plaintiff did not appear. If the plaintiff did appear, the case would be set for trial at a later date. Thus, Heidenheimer concluded the case would be dismissed at the July 15 th setting and he did not need to...