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Strackbein v. Prewitt

Supreme Court of Texas
Jun 13, 1984
671 S.W.2d 37 (Tex. 1984)

Summary

holding affidavits may be considered in Craddock analysis, stating, "It is sufficient that the movant's motion and affidavits set forth facts which, if true, would negate intentional or consciously indifferent conduct."

Summary of this case from In re C.J.S.

Opinion

No. C-2883.

June 13, 1984.

Appeal from the District Court No. 37, Bexar County, Yates, J.

Law Offices of C. David Evans, Inc., James P. Sieloff, San Antonio, for petitioner.

Law Offices of Richard A. Bentley, Richard A. Bentley, San Antonio, for respondent.


This is an appeal from a denial of a motion for new trial and to set aside a default judgment. The trial court rendered default judgment for Strackbein upon the failure of Prewitt to answer following proper service. In an unpublished opinion, the court of appeals reversed the judgment of the trial court and remanded the cause for trial. We affirm the judgment of the court of appeals.

Strackbein sued Prewitt under the Deceptive Trade Practices Act, TEX.BUS. COMM CODE ANN. §§ 17.41 et seq. (Vernon Supp. 1984) for deceptive acts in connection with a contract for sale of a fully repaired and restored Corvette automobile. Strackbein wrote Prewitt a demand letter on April 30, 1982 and filed suit on May 25. Prewitt was served on June 15 and, upon his failure to answer, default judgment was rendered July 23. Prewitt filed a motion for new trial and to set aside the judgment which was denied after a hearing. No record was made at this hearing and no request was made for findings of fact or conclusions of law. The issue before us is whether the trial court abused its discretion in denying the motion for new trial.

A motion for new trial is addressed to the trial court's discretion and the court's ruling on such will not be disturbed on appeal in the absence of a showing of an abuse of that discretion. Howard Gault Son, Inc. v. Metcalf, 529 S.W.2d 317, 321 (Tex.Civ.App. — Amarillo 1975, no writ); Neunhoffer v. State, 440 S.W.2d 395, 397 (Tex.Civ.App. — San Antonio 1969, writ ref'd n.r.e.); see also Wright v. Swayne, 104 Tex. 440, 140 S.W. 221 (1911). In reviewing the judgment of the trial court where there are no findings of fact and conclusions of law requested or filed, the judgment must be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977). However, as stated by this court in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939), "[w]hile trial courts have some measure of discretion in the matter, as, in truth, they have in all cases governed by equitable principles, it is not an unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle." The Craddock court then set forth the guiding rule or principle which trial courts are to follow in determining whether to grant a motion for new trial:

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 in tentional, or the result of conscious indifference on his part, but was due to a mistake or accident; provided the motion for a new trial sets up a meri torious defense and is filed at a time when the granting thereof will occasion no delay or other wise work an injury to the plaintiff.

Id. at 126.

Strackbein filed no counter affidavits to the motion for new trial. So the trial judge, in considering the motion for new trial, could look only to the record before him at that time which included Prewitt's motion for new trial and the affidavits submitted therewith. Where factual allegations in a movant's affidavits are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense. It is sufficient that the movant's motion and affidavits set forth facts which, if true, would negate intentional or consciously indifferent conduct. Dallas Heating Co., Inc. v. Pardee, 561 S.W.2d 16, 19-20 (Tex.Civ.App. — Dallas 1977, writ ref'd n.r.e.); see also Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966).

The motion for new trial was accompanied by affidavits from Prewitt, Julie Miracle, vice president of Prewitt's company, Richard A. Bentley, his attorney, and Andrea Flores, the setting clerk in the office of the Bexar County District Court Coordinator. Those affidavits stated the following facts: (1) on June 18, three days after being served, Prewitt called Mr. Bentley and asked if Bentley would represent him in the suit. He was advised by Bentley that he would do so if the papers in the case were forwarded to him; (2) Prewitt then instructed Julie Miracle to gather all of the documents pertaining to the Strackbein matter; (3) on June 23, after the documents had been assembled, Prewitt again called Bentley's office and talked with a secretary who advised him that Bentley was out of town but that he should mail the documents to her so that the matter could be timely handled; (4) Prewitt then instructed Julie Miracle to mail the documents to Bentley's office; (5) however, due to a breakdown of communication, Julie Miracle thought Prewitt was going to mail the documents and Prewitt thought Julie Miracle would mail them; (6) instead, the papers were misplaced in the office and were not discovered until Prewitt received notice of default; and (7) until that time, Prewitt believed that the papers were in the attorney's office and that the suit was being handled by the attorney.

In determining whether there was intentional disregard or conscious indifference we must look to the knowledge and acts of the defendant. The above affidavits constitute the only evidence before the trial court and there is no reasonable interpretation of those affidavits which would constitute evidence that Prewitt's failure to answer the citation was a result of an intentional act or conscious indifference.

Prewitt's affidavit stated that he had a meritorious defense to the lawsuit in that he had acted solely as an agent for Corvette Paint and Body Shop, Inc. in all of his dealings with Strackbein, and that he was not liable in his individual capacity as alleged in the petition. He further stated that Strackbein had not paid for the repairs to the Corvette automobile according to their contract. Those factual allegations were sufficient to set up a meritorious defense as required by Craddock. Strackbein is in error in his contention that the meritorious defense must be pleaded in defendant's answer as well as contained in the affidavits accompanying the motion for new trial.

The third requirement of Craddock is that the motion for new trial be filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. It is not disputed that the plaintiff's attorney would have sought a jury trial. The affidavit of Andrea Flores stated that had the suit been answered on July 12, 1982 the earliest possible jury setting would have been March, 1983. The affidavit of Mr. Bentley stated that he had offered to reimburse Strackbein for all costs incurred through the hearing on the motion for new trial. This uncontroverted evidence supports the third requirement of Craddock.

Finally, Strackbein contends that if the trial court conducts a hearing on a defaulting defendant's motion for new trial the appellate court should not substitute its discretion for that of the trial court. The issue is not one of which court's discretion shall prevail. Rather, it is a matter of the appellate court reviewing the acts of the trial court to determine if a mistake of law was made. The law in the instant case is set out in Craddock. That law requires the trial court to test the motion for new trial and the accompanying affidavits against the requirements ofCraddock. If the motion and affidavits meet those requirements, a new trial should be granted. In this case those requirements have been met.

The judgment of the court of appeals is affirmed.


Summaries of

Strackbein v. Prewitt

Supreme Court of Texas
Jun 13, 1984
671 S.W.2d 37 (Tex. 1984)

holding affidavits may be considered in Craddock analysis, stating, "It is sufficient that the movant's motion and affidavits set forth facts which, if true, would negate intentional or consciously indifferent conduct."

Summary of this case from In re C.J.S.

holding that when factual allegations in new-trial movant's affidavits are uncontroverted, "a conscious indifference question must be determined in the same manner as a claim of meritorious defense"; therefore, "[i]t is sufficient that the movant's motion and affidavit set forth facts which, if true, would negate intentional or consciously indifferent conduct"

Summary of this case from Rasco v. Ducars Inv.

finding no conscious indifference when the failure to answer was the result of a “breakdown of communication” between two individuals, each of whom thought the other was going to forward the relevant materials to the attorney

Summary of this case from Sutherland v. Spencer

finding no intent or conscious indifference when defendant "believed that the papers were in the attorney's office and the suit was being handled by the attorney" because he and company officer each thought the other had sent the papers

Summary of this case from Serr. at Sym. v. Rutledge

affirming appellate court's reversal of trial court's denial of motion for new trial challenging default judgment based upon uncontroverted factual allegations in affidavits attached to motion for new trial

Summary of this case from Minh Tran v. Hong Kong Dev. Corp.

In Strackbein, since there was no record of the hearing and the nonmovant did not file controverting affidavits, the movant's evidence was uncontroverted and supported the requirements of Craddock. The court of appeals could only look to the evidence before it (the motion and supporting affidavits) to determine if the trial court abused its discretion in denying a new trial.

Summary of this case from State Employees Workers' Comp. Div. v. Evans

In Strackbein, we held that when the factual allegations in a movant's affidavits are not controverted, the question of conscious indifference must be determined in the same manner as a claim of meritorious defense.

Summary of this case from State Employees Workers' Comp. Div. v. Evans

discussing Craddock factors and explaining that those factors provide guiding rule or principle that trial courts are to follow in determining whether to grant motion for new trial after default judgment

Summary of this case from Seven-Thousand Eight-Hundred Twenty-Six Dollars in U.S. Currency v. State

reviewing trial court's denial of a motion for new trial under abuse of discretion standard

Summary of this case from Jones v. Jones

providing that such determination is question of fact for trial court

Summary of this case from Rivas v. Rivas

stating that it is "sufficient that the movant's motion and affidavits set forth facts which, if true, would negate . . . consciously indifferent conduct"

Summary of this case from Metro a v. Polley

stating that it is "sufficient that the movant's motion and affidavits set forth facts which, if true, would negate . . . consciously indifferent conduct"

Summary of this case from Boatman v. Griffin

considering factual allegations in affidavits attached to motion for new trial on the conscious indifference factor of the Craddock test for setting aside a default judgment

Summary of this case from State for Prot. Holst, 12-08-00360-CV

In Strackbein, affidavits of the persons actually served accompanied the motions for new trial and precisely described how the citations were misplaced. Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984).

Summary of this case from Freeman v. Pevehouse

In Strackbein and Ferguson Co., affidavits of the persons actually served accompanied the motions for new trial along with various other affidavits.

Summary of this case from Banctexas Mckinney v. Desalination

In Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984), Prewitt, like Norris here, suffered a default judgment when no answer was filed in his behalf.

Summary of this case from Norris v. Hubbard

In Strackbein, the only evidence before the trial court was the affidavits presented in support of the motion for new trial, which, if true, negated intentional or consciously indifferent conduct and set up a meritorious defense.

Summary of this case from Young v. Kirsch

In Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984), the supreme court emphasized that "[w]here factual allegations in a movant's affidavits are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense.

Summary of this case from Sisco v. Briones

In Strackbein, a fact situation similar to ours, the uncontroverted affidavits showed that suit papers were inadvertently misplaced in the defendant's office, rather than mailed to his attorney.

Summary of this case from State Farm Life v. Mosharaf

In Strackbein, 671 S.W.2d 37, the party opposing the motion for new trial failed to file controverting affidavits, and the trial court conducted a hearing on the motion for new trial.

Summary of this case from Peoples S L Ass'n v. Barber
Case details for

Strackbein v. Prewitt

Case Details

Full title:Donald STRACKBEIN, Petitioner, v. Gary PREWITT, Respondent

Court:Supreme Court of Texas

Date published: Jun 13, 1984

Citations

671 S.W.2d 37 (Tex. 1984)

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