Vannerson v. Vannerson

• Decision Date: 03 June 1993
• Docket Number: No. 01-91-00040-CV,01-91-00040-CV
• Citation: 857 S.W.2d 659
• Parties: Don VANNERSON, Appellant, v. Dorothy Jeane VANNERSON, Appellee, and Southwestern Bell Media, Inc., Appellee/Intervenor. (1st Dist.)
• Court: Texas Court of Appeals

Page 659

857 S.W.2d 659

Don VANNERSON, Appellant, v. Dorothy Jeane VANNERSON, Appellee, and Southwestern Bell Media, Inc., Appellee/Intervenor.

No. 01-91-00040-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 3, 1993.

Rehearing Denied July 8, 1993.

Jerry Guerinot, Houston, for appellant.

Kenneth T. Fibich, Rhonda R. Chandler, J. Lawton Henry, D. Brent Wells, Harry L. Tindall, Houston, for appellee.

Before OLIVER-PARROTT, C.J., and COHEN and O'CONNOR, JJ.

OPINION

OLIVER-PARROTT, Chief Justice.

This is an appeal from a post-answer default judgment. After 30 years of marriage, appellee, Dorothy Jean Vannerson, sued appellant, Don Vannerson, for divorce. Having previously obtained a judgment against appellant, Southwestern Bell Media, Inc. intervened in the divorce action. In 84 points of error, appellant complains of the trial court's failure to grant his motion for new trial, the characterization and division of the property and debt, the appointment of a receiver, the granting of injunctive relief and the withdrawal of his attorney. We affirm the judgment as reformed.

The uncontroverted facts are that on July 23, 1990, the trial court sent all parties notification the case would be heard on August 29, 1990. With appellant's knowledge, appellant's counsel was permitted to withdraw on August 6, 1990, and thereafter, appellant proceeded pro se. On August 29, 1990, the case was called to trial before Judge Thomas Stansberry. Appellant did not appear. The trial court proceeded without appellant, and took evidence. The judge granted the divorce, divided the property, apportioned the debt, and entered other orders.

After the trial, appellant obtained counsel and filed a motion for new trial. Because he would be called as a witness at the hearing on the motion for new trial, Judge Stansberry recused himself from hearing the motion. After a full hearing, Judge Daniel Sklar denied the motion for new trial.

I. Appellant's Motion for New Trial

In points of error one through ten, appellant complains the trial court abused its discretion in denying his motion for new trial. The appropriate standard of review requires that we not disturb the trial court's decision in the absence of an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983); Litchfield v. Litchfield, 794 S.W.2d 105, 106 (Tex.App.--Houston [1st Dist.] 1990, no writ).

Over 50 years ago, the supreme court in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), set forth three criteria that must be present before the trial court may grant a motion for new trial after a default judgment:

1) The failure of defendant to answer was not intentional or the result of conscious indifference, on his part, but was due to an accident or mistake;

2) The defendant alleges a meritorious defense; and

3) The motion for new trial is filed at a time when its granting will not cause delay or otherwise work injury to the plaintiff.

Craddock, 133 S.W.2d at 126. While Craddock spoke to no-answer default judgments, the criteria are equally applicable to post-answer default judgments. LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex.1989); Ivey v. Carrell, 407 S.W.2d 212, 213 (Tex.1966).

At the hearing on the motion for new trial, Mrs. Vannerson stipulated appellant had asserted a meritorious defense. Contrary to appellant's statement in his brief, Mrs. Vannerson's counsel did not admit appellant's defense was meritorious, only that it had been asserted. Because of this stipulation, we will discuss only whether appellant met the first and third prongs of the Craddock test.

A. Conscious Indifference

The term "conscious indifference" means the failure to take some action that would seem indicated to a person of reasonable sensibilities in the same circumstances. Johnson v. Edmonds, 712 S.W.2d 651, 653 (Tex.App.--Fort Worth 1986, no writ).

At the hearing on his motion for new trial, appellant testified that even though he was aware the trial was set for Wednesday, August 29, 1990, he left for Washington D.C. on business on Monday, August 27, 1990. On Tuesday, August 28, appellant called the court from Washington D.C. to inquire whether the case would proceed to trial the next day.

Judge Stansberry refused to speak with appellant directly. Instead, appellant spoke to Judge Stansberry's court coordinator, Esther Ramirez. Ramirez read him a letter, that Mrs. Vannerson's counsel, Kenneth T. Fibich, had sent to the court. In the letter, Mrs. Vannerson requested the case be reset so that Judge Stansberry, and not a master, could hear the case. Appellant said he never received a copy of the letter; however, Ramirez read it to him over the telephone. Appellant testified Ramirez told him he needed to contact Fibich and discuss the matter with him.

Appellant said that when he called Fibich, Fibich immediately told him about the reset letter. Appellant agreed to the reset. Appellant testified that Fibich never told him he would appear and request a reset, nor did Fibich say it was his intention to go ahead and try the case on August 29.

After speaking with Fibich, appellant called Ramirez back and informed her he had spoken with Fibich, who had assured him the case would be reset. Appellant understood Ramirez to say that everything appeared to be in order with Fibich's letter and appellant's agreement with the letter.

We note that while appellant testified he and Fibich discussed the possibility of a settlement meeting the next week, appellant never testified Fibich told him the setting would indeed be passed. And, while appellant said he gave Ramirez his telephone number in Washington, D.C., and asked him to call him if he needed to appear, he did not testify he received confirmation from the court the case was passed.

Appellant also made much of the fact that he had never missed a previous trial setting and that he had three prepaid return tickets so he could return at anytime. He did not, however, introduce any evidence of these tickets.

The testimony of Judge Stansberry and Ramirez controverts appellant's version of the facts. Judge Stansberry testified he had received Fibich's request for a reset. He said he instructed Fibich the parties were to appear as scheduled, and at that time, he would decide whether to hear the case himself, refer it to the master, or postpone the trial setting.

Concerning appellant's call from Washington, Judge Stansberry testified he instructed Ramirez to tell appellant the trial was scheduled to go forward unless it was passed by all the parties, that it was scheduled for 8:30 a.m., the next day, and that everyone was expected to be there. Judge Stansberry could not recall if he was present when Ramirez spoke to appellant; however, Ramirez had worked for him for eight years, and his instructions to her were always followed.

Ramirez testified she told appellant to talk to Fibich and if Fibich agreed to pass the case and if Fibich so advised the trial court, then appellant did not need to appear the next day for trial. When appellant called back, he said he had spoken with Fibich, and Fibich had agreed to pass the case. Ramirez specifically denied stating she told appellant everything appeared to be in order, and he would be notified of when to appear. Ramirez said Fibich never called to indicate the trial would be passed.

Fibich testified concerning his conversation with Judge Stansberry, and his testimony was consistent with that of the judge's. Fibich also testified about appellant's telephone call to him. He said appellant called him about 4:40 p.m. the day before trial, and informed him he did not have a lawyer and did not want to go trial. Fibich said he told appellant of the court's instruction to appear. Fibich said he did not tell appellant the case would be passed, and he did not agree to pass the trial.

In Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex.App.--Houston [14th Dist.] 1988, no writ), the court held that where a defendant's statement concerning conscious indifference is uncontroverted, then Strackbein v. Prewitt, 671 S.W.2d 37 (Tex.1984), "clearly requires a trial court to conclude the defaulting party's failure to answer was the result of mistake or accident." Gotcher, 757 S.W.2d at 401 (citing Strackbein, 671 S.W.2d at 38-39). But when the defendant's statements are controverted by the party who obtained the default judgment in an evidentiary hearing, the trial court must make "an essentially factual inquiry into the acts and knowledge of the defaulting defendant to determine whether his failure to answer was intentional." Gotcher, 757 S.W.2d at 401.

In this case, the trial court conducted a full evidentiary hearing during which appellant's assertions concerning his failure to appear were directly controverted, not only by appellee's counsel but by disinterested court personnel, including the trial judge who heard the case.

After denying appellant's motion for new trial, Judge Sklar entered the following findings of fact:

8. The day before trial [Appellant] telephoned Mrs. Vannerson's counsel and stated he was in Washington, D.C., and would not appear for the trial setting. [Appellant] indicated that he had received notice of the setting, but had not asked the court to reset and expected it to be postponed.

10. The trial court advised [Appellant] through its clerk that the case would not be continued and that Mr. Vannerson should be present at trial.

13. [Appellant's] failure to appear at the trial setting was the result of conscious indifference on his part and not the result of accident or mistake.

A trial court's findings of fact will not be disturbed where there is some evidence in the record to support them. National Bond and Inv. Co. v. Atkinson, 254 S.W.2d 885, 887 (Tex.Civ.App.--Amarillo 1952, writ dism'd). Where there is probative evidence to support the findings, they are binding on the reviewing court even if there is conflicting evidence suggesting...