Affirmed and Opinion Filed April 17, 2015
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00368-CV
BANCO POPULAR NORTH AMERICA, Appellant V. AMERICAN FUND US INVESTMENTS LP, Appellee
On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. 13-13614
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Francis In three issues, Banco Popular North America appeals the trial court’s denial of its
motion for new trial. We affirm.
American Fund US Investments, LP, filed an application for a post-judgment writ of
garnishment. In the application, AF stated it had a final, unsatisfied judgment against Wildcat
Mockingbird, LLC and Concepts America, Inc., jointly and severally, for $918,582.93 in
damages, $15,270.80 in attorney’s fees, and $268 in costs. AF named JP Morgan Chase Bank
and Banco Popular as garnishees because AF believed, based on representations Wildcat and
Concepts made previously to AF, that Wildcat and Concepts had one or more bank accounts with
JPMorgan and/or Banco Popular.
Banco Popular filed a verified original answer in which it stated: As of the date of its answer, Garnishee is indebted to Concepts America Inc. in the amount of $918,582.93 in account number 6804615562 which is a Concepts America payroll account. . . Other than the indebtedness for Concepts America identified above, Banco Popular was not in the possession of any effects or any other indebtedness belonging to Concepts America or Wildcat Mockingbird LLC. at the time the writ was served or as of the date of this answer. . .
Attached to the verified answer was the affidavit of Poula Hatzi, stating she was duly authorized
to provide the verification on behalf of Banco Popular and swearing that “the facts and
statements are true and correct to the best of her knowledge.” Thereafter, Banco Popular and AF
signed an agreed final judgment that the trial court granted December 12, 2013. AF’s claims
against JPMorgan Chase were dismissed.
That same day, Banco Popular filed a motion for new trial in which it alleged it
“incorrectly stated that it was indebted to Concepts America Inc.” The bank claimed it meant to
state that a hold of $918,582.93 had been placed on the payroll account and that the account, in
fact, had a zero balance. Banco Popular argued the trial court should set aside the agreed
judgment under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939),
because the “entry of judgment was based on a fundamental misunderstanding and was a mistake
and accident.” The trial court denied the motion for new trial.
In its first issue, Banco Popular claims the trial court erred by failing to specify in the
order its reasons for denying the motion for new trial. In support of its complaint, Banco Popular
cites Texas Rule of Civil Procedure 326 and the supreme court’s opinion in In re Toyota Motor
Sales, U.S.A., Inc., 407 S.W.3d 746, 756 (Tex. 2013) (orig. proceeding).
Rule 326 provides, “Not more than two new trials shall be granted either party in the
same cause because of insufficiency or weight of the evidence.” TEX. R. CIV. P. 326. This rule
makes no mention of the form or substance for an order denying a motion for new trial and has
no bearing on the facts of this case.
–2– The opinion in In re Toyota addressed the requirements for an order granting a motion for
new trial. In that case, the supreme court stated, “[A] trial court does not abuse its discretion so
long as its stated reason for granting a new trial (1) is a reason for which a new trial is legally
appropriate (such as a well-defined legal standard or a defect that probably resulted in an
improper verdict); and (2) is specific enough to indicate that the trial court did not simply parrot
a pro forma template, but rather derived the articulated reasons from the particular facts and
circumstances of the case at hand.” In re Toyota Motor Sales, 407 S.W.3d at 756−57 (emphasis
added). Nothing in the opinion or the case law cited requires a trial court to state its reasons for
denying a motion for new trial. See id.; see also In re United Scaffolding, Inc., 377 S.W.3d 685,
689 (Tex. 2012) (orig. proceeding). Because the trial court’s order denied Banco Popular’s
motion for new trial, it was not required to give any reason for doing so. We overrule Banco
Popular’s first issue.
In its second issue, Banco Popular claims the trial court abused its discretion by denying
its motion for new trial because its original answer and the judgment were based on an accident
or mistake. In its motion for new trial, the bank’s affiant testified she apparently misread the
affidavit and meant to say there were no funds in the account. In light of this, Banco Popular
argues the “good cause” standard of Craddock should have been applied and the agreed
judgment set aside.
In Craddock, the defendant bus company received citation of the lawsuit but “in some
unexplained manner, the letter transmitting the citation became mixed with the general, or less
important mail . . . and was not discovered until September 10, the day upon which the default
judgment was rendered.” When discovered, the citation was taken immediately to the attorneys
for the insurance company who was obligated to defend the bus company and, the following day,
a motion for new trial was filed. Id. at 125. The trial court denied the motion for new trial, and
–3– the court of appeals reversed. On further appeal, the supreme court addressed the trial judges’
desire to have a principle or rule to guide them when considering motions for new trials in cases
in which a default judgment had been granted. Id. at 126. Specifically, the court held: “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.” Id.
In contrast to the facts in Craddock, however, Banco Popular filed a verified answer and
signed an agreed judgment. Because the Craddock rule applies to default judgments “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,” we cannot conclude
Craddock applies to the facts of this case. The trial court did not err by denying Banco Popular’s
motion for new trial on this basis. See Craddock, 133 S.W.2d at 126. We overrule Banco
Popular’s second issue.
In its final issue, Banco Popular contends the trial court erred by not having a hearing “to
determine the Absolute Obligation Owed” before entering the agreed judgment. Banco Popular
cites us to no law, and we have found none, that requires a trial court to hold an evidentiary
hearing before entering an agreed judgment.
A valid agreed judgment cannot be rendered by a court when consent by one of the
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Affirmed and Opinion Filed April 17, 2015
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00368-CV
BANCO POPULAR NORTH AMERICA, Appellant V. AMERICAN FUND US INVESTMENTS LP, Appellee
On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. 13-13614
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Francis In three issues, Banco Popular North America appeals the trial court’s denial of its
motion for new trial. We affirm.
American Fund US Investments, LP, filed an application for a post-judgment writ of
garnishment. In the application, AF stated it had a final, unsatisfied judgment against Wildcat
Mockingbird, LLC and Concepts America, Inc., jointly and severally, for $918,582.93 in
damages, $15,270.80 in attorney’s fees, and $268 in costs. AF named JP Morgan Chase Bank
and Banco Popular as garnishees because AF believed, based on representations Wildcat and
Concepts made previously to AF, that Wildcat and Concepts had one or more bank accounts with
JPMorgan and/or Banco Popular.
Banco Popular filed a verified original answer in which it stated: As of the date of its answer, Garnishee is indebted to Concepts America Inc. in the amount of $918,582.93 in account number 6804615562 which is a Concepts America payroll account. . . Other than the indebtedness for Concepts America identified above, Banco Popular was not in the possession of any effects or any other indebtedness belonging to Concepts America or Wildcat Mockingbird LLC. at the time the writ was served or as of the date of this answer. . .
Attached to the verified answer was the affidavit of Poula Hatzi, stating she was duly authorized
to provide the verification on behalf of Banco Popular and swearing that “the facts and
statements are true and correct to the best of her knowledge.” Thereafter, Banco Popular and AF
signed an agreed final judgment that the trial court granted December 12, 2013. AF’s claims
against JPMorgan Chase were dismissed.
That same day, Banco Popular filed a motion for new trial in which it alleged it
“incorrectly stated that it was indebted to Concepts America Inc.” The bank claimed it meant to
state that a hold of $918,582.93 had been placed on the payroll account and that the account, in
fact, had a zero balance. Banco Popular argued the trial court should set aside the agreed
judgment under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939),
because the “entry of judgment was based on a fundamental misunderstanding and was a mistake
and accident.” The trial court denied the motion for new trial.
In its first issue, Banco Popular claims the trial court erred by failing to specify in the
order its reasons for denying the motion for new trial. In support of its complaint, Banco Popular
cites Texas Rule of Civil Procedure 326 and the supreme court’s opinion in In re Toyota Motor
Sales, U.S.A., Inc., 407 S.W.3d 746, 756 (Tex. 2013) (orig. proceeding).
Rule 326 provides, “Not more than two new trials shall be granted either party in the
same cause because of insufficiency or weight of the evidence.” TEX. R. CIV. P. 326. This rule
makes no mention of the form or substance for an order denying a motion for new trial and has
no bearing on the facts of this case.
–2– The opinion in In re Toyota addressed the requirements for an order granting a motion for
new trial. In that case, the supreme court stated, “[A] trial court does not abuse its discretion so
long as its stated reason for granting a new trial (1) is a reason for which a new trial is legally
appropriate (such as a well-defined legal standard or a defect that probably resulted in an
improper verdict); and (2) is specific enough to indicate that the trial court did not simply parrot
a pro forma template, but rather derived the articulated reasons from the particular facts and
circumstances of the case at hand.” In re Toyota Motor Sales, 407 S.W.3d at 756−57 (emphasis
added). Nothing in the opinion or the case law cited requires a trial court to state its reasons for
denying a motion for new trial. See id.; see also In re United Scaffolding, Inc., 377 S.W.3d 685,
689 (Tex. 2012) (orig. proceeding). Because the trial court’s order denied Banco Popular’s
motion for new trial, it was not required to give any reason for doing so. We overrule Banco
Popular’s first issue.
In its second issue, Banco Popular claims the trial court abused its discretion by denying
its motion for new trial because its original answer and the judgment were based on an accident
or mistake. In its motion for new trial, the bank’s affiant testified she apparently misread the
affidavit and meant to say there were no funds in the account. In light of this, Banco Popular
argues the “good cause” standard of Craddock should have been applied and the agreed
judgment set aside.
In Craddock, the defendant bus company received citation of the lawsuit but “in some
unexplained manner, the letter transmitting the citation became mixed with the general, or less
important mail . . . and was not discovered until September 10, the day upon which the default
judgment was rendered.” When discovered, the citation was taken immediately to the attorneys
for the insurance company who was obligated to defend the bus company and, the following day,
a motion for new trial was filed. Id. at 125. The trial court denied the motion for new trial, and
–3– the court of appeals reversed. On further appeal, the supreme court addressed the trial judges’
desire to have a principle or rule to guide them when considering motions for new trials in cases
in which a default judgment had been granted. Id. at 126. Specifically, the court held: “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.” Id.
In contrast to the facts in Craddock, however, Banco Popular filed a verified answer and
signed an agreed judgment. Because the Craddock rule applies to default judgments “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,” we cannot conclude
Craddock applies to the facts of this case. The trial court did not err by denying Banco Popular’s
motion for new trial on this basis. See Craddock, 133 S.W.2d at 126. We overrule Banco
Popular’s second issue.
In its final issue, Banco Popular contends the trial court erred by not having a hearing “to
determine the Absolute Obligation Owed” before entering the agreed judgment. Banco Popular
cites us to no law, and we have found none, that requires a trial court to hold an evidentiary
hearing before entering an agreed judgment.
A valid agreed judgment cannot be rendered by a court when consent by one of the
parties is lacking. See Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951). Consent must
exist at the very moment the court undertakes to make the agreement the judgment of the court,
and a trial court should not enter an agreed judgment if it possesses information that would
reasonably prompt further inquiry, and such inquiry, if pursued, would disclose a lack of consent.
–4– Id. When consent has either been withdrawn or is lacking at the time the agreed judgment is
rendered, the judgment is void. See Samples Exterminators v. Samples, 640 S.W.2d 873, 875
(Tex. 1982).
In this case, the record reflects AF stated, in its application for writ of garnishment, that
Wildcat Mockingbird, LLC and Concepts America, Inc., jointly and severally, owed AF
$918,582.93 in damages. In its verified answer, Banco Popular did not dispute this amount and
signed an agreed judgment in the amount of $918,582.93. Furthermore, Banco Popular did not
withdraw its consent to the agreed judgment before the judgment was entered. Nothing in the
record indicates the trial court possessed information that would reasonably prompt further
inquiry that could reveal a lack of consent. Under these circumstances, we cannot conclude the
trial court erred. See Arriaga v. Cavazos, 880 S.W.2d 830, 833 (Tex. App.―San Antonio 1994,
no writ) (stating party has right to revoke consent to settlement agreement any time before
rendition of judgment, but not after rendition); see also W. L. Moody & Co., Bankers v.
Yarbrough, 510 S.W.2d 396, 398−99 (Tex. Civ. App.―Houston [1st Dist.] 1974, writ ref’d
n.r.e.) (court, acting in ministerial capacity, is empowered to enter agreed judgment without
regard to pleadings and proof). We overrule Banco Popular’s third issue.
We affirm the trial court’s judgment.
140368F.P05
/Molly Francis/ MOLLY FRANCIS JUSTICE
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BANCO POPULAR NORTH AMERICA, On Appeal from the 116th Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. 13-13614. No. 05-14-00368-CV V. Opinion delivered by Justice Francis, Justices Lang-Miers and Whitehill AMERICAN FUND US INVESTMENTS participating. LP, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee AMERICAN FUND US INVESTMENTS LP recover its costs of this appeal from appellant BANCO POPULAR NORTH AMERICA.
Judgment entered April 17, 2015.
–6–