ACCEPTED 03-16-00076-CV 11220170 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/20/2016 10:19:24 AM JEFFREY D. KYLE CLERK ORAL ARGUMENT REQUESTED No. 03-16-00076-CV FILED IN ___________________________________________________________________ 3rd COURT OF APPEALS AUSTIN, TEXAS In The 6/20/2016 10:19:24 AM JEFFREY D. KYLE Clerk COURT OF APPEALS THIRD DISTRICT OF TEXAS Austin, Texas ___________________________________________________________________
BRUCE HITT,
Appellant,
v.
FRANK ZARAUSKAS d/b/a BOONDOCKS BAR & GRILL,
Appellee. ___________________________________________________________________ On Appeal from Cause No. 14C084L In the County Court at Law of Tom Green County, Texas Honorable Ben Nolen, Presiding Judge ___________________________________________________________________
BRIEF FOR APPELLEE _________________________________________________________________
Charles W. King State Bar Number 11436525 101 S. Park San Angelo, Texas 76901 Telephone: (325) 227-6536 Facsimile: (325) 227-6537 Attorney for Appellee IDENTITY OF PARTIES AND COUNSEL
In order to assist the Court in identifying grounds for recusal or
disqualification, Appellee certifies that the following is a complete list of the
names and addresses of the parties to this appeal and their counsel:
APPELLANT: Bruce Hitt
COUNSEL FOR Michael A. Yanof (appellate counsel) APPELLANT: Cassie J. Dallas (appellate & trial counsel) Jason R. Jobe (trial counsel) Thompson, Coe, Cousins & Irons, L.L.P. 700 North Pearl St., 25th Floor Dallas, Texas 75201 Telephone: (214) 871-8200 Facsimile: (214) 871-8209
APPELLEE: Frank Zarauskas d/b/a Boondocks Bar & Grill
COUNSEL FOR Charles W. King APPELLEE: 101 S. Park San Angelo, Texas 76901 Telephone: (325) 227-6536 Facsimile: (325) 227-6537 Email: charles@charleskinglaw.com
2 FOR THE COURT’S CONVENIENCE
Bruce Hitt was the Defendant in the trial court and is the Appellant herein.
For convenience he is referred to as “Hitt” or “Appellant.”
Frank Zarauskas d/b/a Boondocks Bar and Grill was the Plaintiff in the trial
court and is the Appellee herein. For convenience, he is referred to as “Zarauskas”
or “Appellee.”
References to the Clerk’s Record and Reporter’s Record are abbreviated as
“CR” and “RR,” respectively. Because the Reporter’s Record is multiple volumes,
the volume number is placed in front of the Reporter’s Record designation, and
the page number is placed after. For example, Volume 4 of the Reporter’s Record
at page 4 would be cited as 4 RR 4.
Appendix items are attached to this Brief and abbreviated as “Apx. Tab
___.”
3 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ………………………………………………………….. 2 FOR THE COURT’S CONVENIENCE……………………………………………………………….. 3 INDEX OF AUTHORITIES……………………………………………………………………………….. 6 STATEMENT OF THE CASE……………………………………………………………………………. 8 STATEMENT REGARDING ORAL ARGUMENT…………………………………………………..9 ISSUE PRESENTED ………………………………………………………………………………………..10 STATEMENT OF FACTS…………………………………………………………………………………. 11 I. Zarauskas’ Lawsuit and the Eviction Proceeding…………………….11 II. Hitt’s Counsel Withdraws Without Hitt’s Knowledge or Consent…………………………………………………………………………………. 12
III. Hitt Not Served with Discovery or Notice of Hearing on The Merits …………………………………………………………………………….. 13
SUMMARY OF ARGUMENT…………………………………………………………………………...16 ARGUMENT ………………………………………………………………………………………………….18 I. Standard of Review……………………………………………………………………18 II. The Trial Court Did No Abuse Its Discretion in Denying Hitt’s Motion for New Trial………………………………………………………………….19
A. Due process requires that defendants receive notice of a trial setting after appearing in a case; however, a Defendant has a duty to keep the Court informed of His change of address……………………………………………………...19
B. If Hitt did not receive notice of the November 10, 2015 Hearing, it is because he failed to comply with Tex. R. Civil P. 245……………………………………………………………………….21
C. The Notice of Hearing did not comply with Tex.R.Civ.
4 P. 245…………………………………………………………………………………. ……22
D. The uncontroverted evidence did not establish each of the Craddock elements ……………………………………………………………….23
1. A post-answer default judgment should be set Aside and a new trial ordered when the Craddock elements are established, but that was not the case here………………………….……………………………………23
2. Hitt’s non-appearance was if not intentional, the result of conscious indifference…………………………........... 23
3. Hitt did not set up a meritorious defense……………………………24
4. Hitt did not demonstrate that granting a new trial would not result in prejudice or delay…………………………………24
CONCLUSION……………………………………………………………………………………………25
CERTIFICATE OF SERVICE …………………………………………………………………………25
CERTIFICATE OF COMPLIANCE………………………………………………………………….26
APPENDIX TO BRIEF OF APPELLEE…………………………………………………………….27
Judgment (CR 60-61) Tab 1
Order Denying Defendant Bruce Hitt’s Motion To Set Aside Post-Answer Default Judgment And Motion for New Trial (CR 131) Tab 2
Affidavit of Bruce Hitt (CR 78-83) Tab 3
5 INDEX OF AUTHORITIES
CASES $429.30 In U.S. Currency v. State, 896 S.W.2d 363 (Tex. App. –Houston [1st Dist.] 1995, no writ)……………………………………19, 22
Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987) …………………………………................18, 20, 22
Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939)……………………………………..…10, 16, 18, 20, 23, 24
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W. 3d 922 (Tex. 2009) (per curiam) ……………………………………..18, 19
Ivy v. Carrell, 407 S.W.2d 212 (Tex. 1966)…………………………………………………………………….23
LBL Oil Co. v. Int’l Power Serv. Inc., 777 S.W.2d 390 (Tex. 1989)…………………………………………………………………….19
Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (per curiam)…………………………………….………21,22
Matsushita Elec. Cor. V. McAllen Copy Data, Inc., 815 S.W.2d 850 (Tex. App. – Corpus Christi 1991, writ denied) ……………….19
Murphree v. Ziegelmair, 937 S.W.2d 850 (Tex.App. –Corus Christi 1991, writ denied)……………………18
Old Republic Ins. Co. v. Scott, 873 S.W.2d 381 (Tex. 1994)…………………………………………………………………..… 18
Smith v. Holmes, 53 S.W.3d 815, 817-18 (Tex. App. – Austin 2001, no pet.) ………..…18, 19, 20
6 Strackbein v. Prewitt, 671 S.W.2d 37,38 (Tex. 1984) ………………………………………………………………….18
STATUTES:
Tex. Civ. Prac. & Rem. Code § 30.015……………………………………………….8,13, 14,18,21
Tex. Civ. Prac. & Rem. Code § 30.015(d)…………………………………………………………8, 12
RULES:
Tex. R. Civ. P. 10……………………………………………………………………………………………12,21
Tex. R. Civ. P. 21a……………………………………………………………………………………..……….20
Tex. R. Civ. P. 245…………………………………………………………………………..4,5,10,16,20,22
7 STATEMENT OF THE CASE ___________________________________________________________________ Nature of This case arises from the breach of an alleged oral lease the case agreement. Appellee Zarauskas asserted both tort and quantum meruit claims against Hitt. (CR 26-35.) Appellant Hitt answered, asserting various defenses, and filed a counterclaim for unpaid rent. (CR 23-25.) The unpaid rent portion of the case was moot at the time of trial. ___________________________________________________________________ Trial Court Cause No. 14C084-L in the County Court at Law, Tom Green County, Texas, the Honorable Ben Nolen, presiding. ___________________________________________________________________ Course of the On October 15, 2015, the trial court issued a Notice of Proceeding Hearing on the Merits. (CR 59.) Pursuant to the Notice of Hearing, the case was called to trial on November 10, 2015. (CR 60; Apx. Tab 1.) Appellee’s position is if Hitt did not receive the Notice of Hearing and did not appear, it was his own fault. He failed to comply with Tex. Civ. Prac. Rem. Code 30.015. (CR 78-83; Apx. Tab 3.) The trial court entered post-answer default judgment in favor of Zarauskas. (CR 60; Apx. 1.) (CR131; Apx. 2.)
It is true that after learning of the adverse judgment, Hitt filed a timely motion for new trial. (CR 64-77.) ___________________________________________________________________ Trial Court’s After a hearing, the trial court denied Hitt’s motion for Disposition new trial because he failed to notify the court of his new address, if he had one. (CR 131; Apx. 2.) ___________________________________________________________________ Appeal Appellee stipulates that Hitt timely filed a notice of appeal, but the trial court should decision should be affirmed (CR 132-34.) ___________________________________________________________________
8 STATEMENT REGARDNG ORAL ARGUMENT
The trial court’s discretion to grant or deny a motion for new trial is broad.
In the case at bar the lack of notice, if any, was Appellant’s own fault because he
failed to comply with Tex. Civ. Prac. & Rem. Code 30.015(d) and failed to apprise
the court of his whereabouts. The trial court’s decision should be affirmed. There
was no abuse of discretion.
9 ISSUE PRESENTED
1. Trial court did not abuse its discretion in denying Appellant’s motion for
new trial; Appellant’s contention that: (a) Appellant did not receive notice
of the trial setting is his own fault for not keeping the court apprised of his
new address; (b) Hence, whether the notice complied with Rule 245 of the
Texas Rules of Civil Procedure is immaterial. Appellant would not have
gotten it because he did not advise the court that he moved, if he did; and
(c) Appellant’s failure to appear was at least the result of conscious
indifference; (d) Appellant may have alleged a meritorious defense; and/or
alleged (e) that granting a new trial would not operate to cause delay or
injury to the Plaintiff-Appellee; but he did not comply with all Craddock
elements.
10 STATEMENT OF FACTS
I. Zarauskas’s Lawsuit and the Eviction Proceeding
Appellee agrees with Appellant that Zarauskas filed his Original
Petition on March 6, 2014. (CR 7-9.) It was pled as a fraud and negligent
misrepresentation case, and in addition the lawsuit arose from the alleged
breach of a lease agreement entered in early 2013 between Zarauskas and
Hitt. (CR 26-35.) Hitt generally denied Zarauskas’s claims, asserted the
affirmative defense of the statute of frauds, and counterclaimed for unpaid
rent. (CR 23-25.) The unpaid rent issue was moot at the time of trial since
Appellee paid rent and that part of said case was resolved.
Both Zarauskas and Hitt acknowledged that an agreement was
entered, the terms of the agreement and their rights and obligations as landlord
and tenant were disputed. (CR 23-25, 26-35; see generally 2 RR 6-49.) It is true
that Hitt sued Zarauskas for forcible detainer around the time of the filing of the
Original Petition. (CR 33, 36, 40; 2 RR 36.) And, as set forth in Plaintiff’s First
Amended Petition, the judgment of possession entered by the Justice of the
Peace Court for Tom Green County, Precinct Number 2 was appealed to the
County Court and consolidated by the parties’ agreement into this cause number.
CR 33, 36, 40.)
11 Specifically, by order dated June 3, 2014, the trial court ordered that the
funds placed in the court’s registry for the eviction proceeding be transferred into
this cause number. (CR 40.) Three weeks later, the trial court administratively
closed the proceedings but did not dismiss the case. (CR 41.) Hitt did not notify
the Court that he moved to San Antonio, if he did. (CR 79; Apx. Tab 3.) He
violated Tex. Prac. & Rem. Code 30.015(d).
II. Hitt’s Counsel Withdrew, But He Notified Hitt of His Motion. Hitt Did Not Keep His Own Attorney or the Court Informed of His Whereabouts.
In February 2015, Hitt’s attorney of record, Jeffery Lisson (“Lisson”) filed a
motion to withdraw, citing an inability to communicate with his client as the
grounds for the motion. (CR 47-48, 79; Apx. Tab 3.) Lisson’s motion did contain a
certificate of service (CR 47-48.); and the motion was sent to Hitt’s last known
address. (CR 47.) See Tex. R. Civ. P. 10.
As reflected in the certificate of service attached to the motion, Lisson
apparently attempted to serve Hitt as his mother’s house, located at 1226
Coventry Lane, San Angelo, Texas 76904 (“Coventry Address”), the address
provided to him by Hitt. (CR 47-48, 79; Apx. Tab 3.) Hitt claims he never received
a copy of the motion. (CR 78-80; Apx. Tab 3.)
12 The trial court issued a notice of hearing on the motion to withdraw,
service of which was attempted on Hitt’s residence located at 4730 Muirfield Ave,
San Angelo, Texas 76901 (“Muirfield Address”). (CR 49.) The Register of Actions
reflects that the notice was returned. (CR 82; Apx. Tab 3.) The Court granted
Lisson’s motion to withdraw on March 13, 2015. (CR 50.) Hitt blames his prior
counsel, the court and Appellee’s counsel for the fact that he allegedly was not
getting notice. However, Appellee contends he should have stayed in
communication with his attorney and the court. A court should not have to hunt
the litigants down. That is why Tex. Civ. Prac. & Rem. 30.015 makes sense.
III. Hitt Contends He Was Not Served with Discovery or Notice of Hearing on the Merits.
On July 23, 2015, Zarauskas electronically filed Requests for Admissions (CR
51-58). The certificate of service attached to these requests indicates that they
were sent by certified mail, return receipt requested and regular mail to the
Muirfield Address. (CR 52.) If Hitt did not reside or accept mail at the Muirfield
Address at the time Zarauskas purported to serve him with the requests, he
should have notified the court and the litigants of his new address. (CR 80; Apx.
Tab 3.) Tex. Civ. Prac. & Rem. Code 30.015.
13 On October 15, 2015, the Court issued a Notice of Hearing on the Merits
(“Notice of Hearing”), setting the case for trial on November 10, 2015, at 9:00
a.m. (CR 59.) Service of the Notice of Hearing was attempted on Hitt at the
Muirfield Address. (CR 59, 79-83; Apx. Tab 3.) Appellee contends if Notice of
Hearing was not received by Hitt, then it was his fault not the court’s. (CR 80, 83;
Apx. Tab 3.) Tex. Civ. Prac. & Rem. Code 30.015.
Appellee agrees with Appellant that Zarauskas appeared at trial on
November 10, 2015, and Hitt did not appear. (3 RR 1-15.) Hitt’s liability was
established on the basis of the deemed admissions. Appellee presented evidence
that the request for admissions was sent to Hitt’s last known address. (3 RR 5-6.)
After admitting Zarauskas’s exhibits, which included the deemed admissions, and
hearing testimony from Zarauskas, the trial court entered a judgment against
Hitt, awarding Zarauskas $150,000 in damages and entering a take-nothing
judgment on Hitt’s counterclaim. (CR 60-61; Apx. Tab 1; 3 RR 13-14.)
Hitt contends that he learned of the post-answer default judgment on or
about November 14, 2015, from friends, and timely filed a motion for new trial
seeking to set aside the default judgment. (CR 64-77, 80; Apx. Tab 3.) After a
hearing, the trial court denied Hitt’s motion for new trial. (CR 131; Apx. Tab 2.)
14 The trial court’s ruling was correct. Mr. Hitt did not keep the court or the litigants
apprised of his new address, if any. Hitt filed this appeal. (CR 132-34.)
15 SUMMARY OF ARGUMENT
Appellee agrees with Appellant that once a party has appeared in a lawsuit,
due process requires that he receive notice of a trial setting before a default
judgment may be entered against him and that notice should comply with Rule
245 of the Texas Rules of Civil Procedure. However, the litigants also have a duty
to notify the court of change of address. Therein lies the problem. And, of
course, equitable principles warrant the granting of a new trial only when a party
establishes each and all of the elements stated in Craddock v. Sunshine Bus Lines,
Inc.
In this case, Bruce Hitt appeared, answered, and asserted counterclaims
through his then-attorney. Subsequently, Hitt’s attorney withdrew. If Hitt
stopped receiving notice of the filings and settings in the proceeding, it was his
own fault. If Hitt did not receive notice of the November 10, 2015 hearing on the
merits at which the trial court entered judgment against him, that was his own
fault. The Court has no duty to track down the litigants. A court’s duty to send
notice to litigants is predicated on the litigants keeping the court advised of their
whereabouts.
16 After learning of the judgment, it is true that Hitt timely filed a motion for
new trial and that the trial court denied Hitt’s motion. The trial court did not
abuse its discretion. This Court should affirm the judgment.
17 ARGUMENT
I. Standard of Review
A trial court’s decision on a motion for new trial is reviewed for abuse of
discretion. Appellee agrees with the law cited by Appellant generally, but not as
applied to the case at bar. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987)
(citing Strackbein v. Prewitt, 671 S.W. 2d 37, 38 (Tex. 1984)); see also Smith v.
Holmes, 53 S.W. 3d 815, 817 (Tex. App. – Austin 2001, no pet.) The trial court’s
discretion is not unbridled. Cliff, 724 S.W.2d at 779. That said, the litigants are
required to notify the court of change of address. The court has no duty to track
down the litigants. There is a reason for Rules like Tex. Prac. & Rem. Code 30.015,
and that reason is so that the parties will do their part to inform the court of their
address if they want to receive notice of settings.
If a defaulted party moves for a new trial, he must comply with all three
elements of the Craddock test, . . . a trial court does not abuse its discretion if it
fails to grant a new trial when the defendant was consciously indifferent. In the
case at bar, Appellee contends Appellant was consciously indifferent to the
proceedings and at fault in not providing a change of address. Dolgencorp of
Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam) (citing Old
Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994)).
18 II. The Trial Court Did Not Abuse Its Discretion in Denying Hitt’s Motion for New Trial
In Hitt’s motion for new trial, he contended he did not receive notice of the
trial setting (CR 78-83; Apx. Tab 3; 4 RR 1-28.); but ad nauseam that was because
he failed to keep the court apprised of his address. The trial court properly
denied Hitt’s motion for new trial. (CR 131.) In doing so, the trial court did not
abuse its discretion.
A. While due process requires that defendants receive notice of any trial setting after appearing in a case, litigants are required to keep the court apprised of their change of address.
Appellee agrees with Appellant that once a defendant has made an
appearance in a case, he must receive notice a trial setting as a matter of due
process under the Fourteenth Amendment. Smith, 53 S.W.3d at 817; see also
Murphree v. Ziegelmair, 937 S.W.2d 493, 495 (Tex. App. – Houston [1st Dist.]
1995, no writ (citing LBL Oil Co. v. Int’l Power Serv. Inc., 777 S.W.2d 390, 390-91
(Tex. 1989)). “A post-answer default judgment occurs when a defendant who has
answered fails to appear for trial.” Dolgencorp, 288 S.W.3d at 925. Appellant
correctly states that for a post-answer default judgment to be valid, it must be
shown that the defendants received notice of the hearings. $429.30 In U.S.
Currency v. State, 896 S.W.2d 363, 366 (Tex. App. – Houston [1st Dist.] 1995, no
19 writ); Matsushita Elec. Cor. V. McAllen Copy Data, Inc. , 815 S.W.2d 850, 853 (Tex.
App. – Corpus Christi 1991, writ denied); see also Tex. R. Civ. P. 21a & 245. “A
defendant who does not receive notice of a post-answer default-judgment
proceeding is deprived of due process.” Smith, 53 S.W.3d at 817-18. That is all
true, but that is why it is important to follow all court rules and advise the court of
a change of one’s address. Appellee contends Appellant answered and counter-
claimed and then just ignored the proceedings. The totality of the circumstances
indicate conscious indifference: not communicating with his lawyer, moving, not
telling anyone his new address.
“Rule 21a sets up a presumption that when notice of trial setting properly
addressed and postage prepaid is mailed, that the notice was duly received by the
addressee,” the presumption may be overcome. Cliff, 724 S.W.2d at 779; see also
Tex. R. Civ. P. 21a (“A certificate by a party or an attorney of record, or the return
of an officer, or the affidavit of any person showing service of a notice shall be
prima facie evidence of the fact of service.”). Common sense dictates that a party
claiming a notice problem should have informed the court of his or her change of
address. Hitt cannot satisfy Craddock. Appellee contends Appellant was
consciously indifferent in just disappearing. Appellee contends Hitt should have
changed his address with the court and communicated with his attorney. .
20 B. The uncontroverted evidence established that if Hitt did not receive notice of the November 10, 2015 hearing, it was his own conduct that caused him not to be notified.
The notice was properly sent to Mr. Hitt’s last known address Hitt at the
Muirfield Address. (CR 59, 80, 84; Apx. Tab 3.) If Hitt did not reside at or receive
mail at the Muirfield Address any more, then why did he not notify the court of
his change of address? (CR 78-80; Apx. Tab 3.)
Zarauskas’s counsel correctly argued that Hitt had waived the right to
notice because he did not provide an updated address to the trial court. (4 RR 5-
7.) Hitt had a duty to apprise the trial court of his correct and current address.
Tex. Civ. Prac. & Rem. Code 30.015. Appellant cites Mathis, 166 S.W.3d at 746
insisting that new trial should have been granted where any failure to apprise the
court of defaulting party’s last known address resulted from a mistake or
accident. However, Hitt just did not comply with the Rule to notify the court of
change of address. There was no mistake. Hitt did not do his part.
Hitt contends that (1) he was unaware that his attorney had withdrawn; (2)
he did not consent to the withdrawal; and (3) somehow his attorney (a very
reputable one) failed to provide the trial court with Hitt’s correct and current
address in accordance with Rule 10 of the Texas Rules of Civil Procedure. (CR 47-
50, 79-81; Apx. Tab 3.) See Tex. R. Civ. P. 10. Following Hitt’s logic, everyone is at
21 fault but Mr. Hitt. Mr. Hitt knew he was not communicating with his own
attorney. He just disappeared to another city, if he moved at all, and did not
inform anyone of his new address.
Based on the evidence presented, there is a presumption that the Notice
of Hearing was properly sent or received. See Mathis, 166 S.W.3d at 745; see also
Cliff, 724 S.W.2d at 780. A post-answer default judgment is valid if the
defendant received notice of a trial setting—and Hitt did at his last known
address. He should have told the court his new address. The trial court did not
abuse its discretion in failing to grant Hitt’s motion for new trial. See $429.30 in
U.S. Currency, 896 S.W.2d at 365.
C. Even if the Notice of Hearing did not comply with Tex. R. Civ. P. 245, it would not have made a difference since Mr. Hitt did not apprise the court of his new address.
The Notice of Hearing if it failed to comply with Rule 245 of the Texas Rule
of Civil Procedure, which requires that parties in a contested case be given no less
than 45 days’ notice of the first trial setting, is not a causative factor unless the
court has a good address. Hitt did not give the court his new address; so he
cannot really complain that he did not get the full benefit of Tex. R. Civ. P. 245.
In this case Rule 245 in a contested case cannot help someone who does
not notify the court of his change of address. Appellee submits that appellant
22 cannot pick and choose what rules to comply with. If he wanted the benefit of
notices, then he had to notify the court of his new address, if any.
D. Appellant did not meet the Craddock elements.
As Appellee has said, ad nauseam throughout this brief, if Hitt did not
receive notice of the hearing, it is his own doing. He consciously or recklessly
failed to notify the court of his new address. The trial court did not abuse its
discretion by not granting Hitt’s motion for new trial.
1. The post-answer default judgment should not be set aside. The Craddock elements were not established
In Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939), the Texas
Supreme Court held that a default judgment should be set aside when the
defaulting party establishes that: (1) its failure to answer or appear was not
intentional or the result of conscious indifference; (2) that it has a meritorious
defense; and (3) that the granting of a new trial will not operate to cause delay or
injury to the plaintiff. Craddock, 133 S.W.2d at 126; see also Ivy v. Carrell, 407
S.W.2d 212, 213 (Tex. 1966) (holding that Craddock rule applies equally to post-
answer default judgments). Appellant has to establish all three elements of
Craddock.
2. Hitt’s non-appearance was intentional or the result of conscious indifference
23 Hitt should have kept the court apprised of his address. Appellee contends
Hitt basically disappeared, did not communicate with his attorney and did not
notify anyone of his new address, if any.
3. Hitt did not set up a meritorious defense
Even if Hitt demonstrated the existence of a meritorious defense, he did
not comply with the first element of Craddock.
4. Hitt did not demonstrate that granting a new trial would not result in prejudice or delay, nor did Hitt reimburse Appellee for expenses.
Hitt did not satisfy the first element of Craddock. As to the third element,
he simply alleged that granting the motion for new trial would not cause a delay
or otherwise prejudice Zarauskas. Hitt took no responsibility for his own failure to
notify the court of his change of address. He blames everyone but himself.
Because Hitt did not establish each and all of the Craddock elements, his
attempt to attack the trial court’s decision must fail. The trial court did not abuse
its discretion. The decision of the trial court should be affirmed.
24 CONCLUSION
Appellee Frank Zarauskas prays that the Court:
1) affirm the trial court’s judgment; and
2) award any other relief to which Appellee Frank Zarauskas is entitled.
Respectfully submitted,
By/s/Charles W. King Charles W. King 101 S. Park San Angelo, Texas 76901 Telephone: (325) 227-6536 Facsimile: (325) 227-6537 Email: charles@charleskinglaw.com ATTORNEY FOR APPELLEE FRANK ZARAUSKAS
CERTIFICATE OF SERVICE
I hereby certify that on June 16, 2016, a true and correct copy of the foregoing document was served by electronic service to counsel of record.
Michael A. Yanof (appellate counsel) Cassie J. Dallas (appellate & trial counsel) Jason R. Jobe (trial counsel) Thompson, Coe, Cousins & Irons, L.L.P. 700 North Pearl St., 25th Floor Dallas, Texas 75201 Telephone: (214) 871-8200 Facsimile: (214) 871-8209 Attorneys for Appellant /S/Charles W. King Charles W. King Attorney for Appellee
25 CERTIFICATE OF COMPLIANCE
I certify that this Brief contains 4,307 words, not including the parts excluded by Tex. R. App. P. 9.4(i)(1). Accordingly, it complies with Rule 9.4(i)(2)(B).
/s/ Charles W. King Charles W. King
26 APPENDIX TO BRIEF OF APPELLEE
Order Denying Defendant Bruce Hitt’s Motion To Set Aside Post-Answer Default Judgment And Motion for New Trial (CR 131) Tab 2
27 NO. 14C084l
FRANK ZARAUSKAS D/B/A § IN THE COUNTY COURT AT lAW BOONDOCICS BAR & GRIU § Plaintiff § § vs. § OF § BRUCEHm § Defendant § r::J
0 ::r.: :::0 ~
JUDGMENT '!." ('"") C) 0 . ~ ) ,.._, On this~ day of November, 2015, the above case was called to trial on the merits; the- Plaintiff appeared in person/by his attorney, Charles W. King. The Defendant although having been duly notified failed to appear and made default.
The Court next took Judicial Notice of the Pleadings and other papers on file in this cause; the Court also finds that Requests for Admissions were propounded to the Defendant on or about July 23, 2015 and answers were due in 30 days. The Court further finds that the Defendant did not answer the Requests for Admissions and that the Requests for Admissions are deemed admitted so the Defendant is liable to the Plaintiff for the allegations in Plaintiffs First Amended Original Petition and liable to the Plaintiff for damages.
The Court further finds that the Plaintiff should have Judgment against Defendant for the sum of$/ r u_o tl(). uo . 7 IT IS THEREFORE ORDEREfl. ADJUDGED AND DECREED that Plaintiff have judgment against Defendant for the sum of / rcJ oou. JJiJ together with post Judgment interest at the maximum lawful rate from the date of judgment until paid and costs of court, for which let execution issue if not timely paid.
IT IS FURTHER ORDERED that Defendant and Counter Plaintiff take nothing against Plaintiff and Counter Defendant by way of any Counterdaims, if any, that remain pending in this cause or the companion landlord tenant case.
Signed this L!!.._day of November, 2015.
~~- Judge Presiding
TAB 1 60 Approved:
Charles W. King TBN.11436525 Attorney for Plaintiff/Counter Defendant, Frank Zarauskas d/b/a Boondocks Bar & Grill
TAB 1 61 CAUSE NO. l4C084L
FRANKZARAUSKAS D/B/A § IN THE COUNTY COURT AT LAW BOONDOCKS BAR & GRILL § Plaintiff, § § v. § § BRUCEHITT § Defendant. §
"Gitl~~ ORDER OS QIITRIG DEFENDANT BRUCE HITT'S MOTION TO SET ASIDE POST-ANSWER DEFAULT JUDGMENT AND MOTION FOR NEW TRIAL
On the 21st day of January, 2016, the Court considered Defendant Bruce Hitt' s Motion to
Set Aside Post-Answer Default Judgment and Motion for New Trial seeking to set aside the
Judgment entered in this cause on November 10, 201 5. Having considered Defendant's motion, €- any response by Plaintiff, and the arguments of counsel, the Court finds that the motion is well IJ£11/J:G_~ ~- awhould be Qe\iffE(). ~ It is therefore, ORDERED, ADJUDGED, AND DECREED that Defendant Bruce Hitt's 0~N.C~4'A> Motion to Set Aside Post-Answer Default Judgment and Motion for New Trial is 6£1\if'WJII. • ~
~T:A1 Cemt fwtiM oreers a ttew trial in dre httetest ofjustlee mid Ul'ltMss. e_
SIGNED this~ day of January, 2016.
JUDGE PRESIDING
ORDER 8" +I ili'L DEFENDANT BRUCE HITT'S MOTION TO PAGEl SET ASIDE POST·ANSWER DEFAULT JUDGMENT AND MOTION FOR NEW TRIAL 2353356vl 11131.002 TAB 2 131 Filed for Record 12/9/2015 11 :33:37 AM Elizabeth McGill , County Clerk Tom Green County, Texas 14C084-L CAUSE NO. l4C048L ~:;~~w~~k~~n Deputy FRANK ZARAUSKAS D/ B/A § IN THE COUNTY COURT AT LAW BOONDOCKS BAR & GRILL § Plaintiff, § § v. § § BRUCE HITT § Defendant. § TOM GREEN COUNTY, TEXAS
AFFIDAVIT OF BRUCE HITT
STATEOFTEXAS § § COUNTY OF TOM GREEN §
BEFORE ME on this day personally appeared Bruce Hitt, who, upon his oath, deposed and stated:
l. "My name is Bruce Hitt. I am over 18 years of age, have never been convicted of a felony or a misdemeanor involving moral turpitude, and am fully competent to testify to the matters and facts stated in this Affidavit. All the facts set forth in this Affidavit are within my personal knowledge and are true and correct.
2. I am a Licensed Real Estate Broker in the State of Texas. I am also in the business of buying, improving, and selling real estate for investment purposes.
3. Because of the nature of my business, my residence changes frequently. I typically live at the same physical location for relatively short periods of time between approximately 12 to 36 months. As a result, I consistently maintain the same Post Office Box address to receive mail ("P.O. Box Address") .
4. I am the former owner of the residential property located at 4730 Muirfield Avenue, San Angelo, Texas 7690 I ("Muirfield Address"). I purchased the property in 20 I 2 as an investment and lived at the property while it was being remodeled. I moved from that address and sold the property in late January 2015.
5. While I was living at the Muirfield Address, I never set up a mail box at that address, and I did not use the property as my mailing address. In any event, I have not lived at the Muirfield Address since late January 201 5.
TAB 3 78 6. My mother is the current owner and resident of the residential property located at 1226 Coventry Lane, San Angelo, Texas 76904 (" Coventry Address"). I do not reside at this address, but 1 have on occasion received mail at the Coventry Address. The Coventry Address also appears on my driver' s license.
7. At all relevant times, I have maintained .as my mailing address and regularly checked the "P.O. Box Address."
8. I am the Defendant in the above referenced lawsuit, styled Frank Zarauskas d/b/a Boondocks Bar & Grill v. Bruce Hitt, No. 14C048L; in the Country Court at Law, Tom Green County, Texas (the " Lawsuit" ). As a result I am familiar with the underlying fact s of the case.
9. I am the former owner of a commercial property located at 3314 F.D. Road. San Angelo, Texas 76904 (" Restaurant Property"), which was operated for approximately one year by Zarauskas as Boondocks Bar & Grill.
I 0. On or about March 6, 2014, Frank Zarauskas ("Zarauskas") filed the Lawsuit against me related to an alleged oral lease agreement regarding the Restaurant Property.
11. On April 8, 2014, I, by and through my then counsel of record Jeffrey Lisson ("Lisson"), answered the Lawsuit. 1 generally denied each and every allegation in Zarauskas 's Petition, asserted the affirmative defense of the Statute of Frauds, and counterclaimed for unpaid rent on the Restaurant Property.
12. Although the terms of the alleged oral lease agreement are disputed, 1t 1s not disputed that Zarauskas failed to pay rent as it came due. As of April 8, 2014, Zarauskas had not paid rent since September 2013. The failure to pay was a material breach of the lease agreement and relieved me of any of any obligation to perform under the alleged oral lease agreement.
13. The Lawsuit was administratively closed on June 24, 2014 . After that time, I believed that Zarauskas intended to abandon his claims related to the Restaurant Property in the Lawsuit.
14. Following the administrative closing of the Lawsuit, I moved in approximately late June or early July 2014 to San Antonio, Texas. During this time, I continued to maintain and regularly check my Post Office Box address as my mailing address.
15 . Unbeknownst to me, the Lawsuit was re-opened.
16. Unbeknownst to me, and without my consent, Lisson filed a motion to withdraw as my attorney, citing an inability to communicate with me. Lisson apparently attempted to serve his motion to withdraw on me at the Coventry Address. I do not recall or have a record of having received any telephone calls from Lisson.
TAB 3 79 17. As reflected in the Court' s Rcg1ster of Actions, the notice of hearing on the motion to withdraw, which was apparently sent to the Muirfield Address, was returned.'
18. As further reflected in the Court 's Register of Actions, Zarauskas electronically filed Requests for Admissions on July 23 , 2015 . The Certificate of Service attached to these Requests states that it was apparently sent to the Muirfield Address by Certified Mail, Return Receipt Requested and Regular U.S. Mail.
19. 1 did not reside or accept mail at the Muirfie1d Address at the time Zarauskas purported to serve me with the Request for Admissions. 1 never received service of the Request for Admissions.
20. As further reflected in the Court 's Register of Actions, on October 16, 2015, the Court issued a Notice of Hearing to be held on November I 0, 2015 . The Notice of Hearing reflects that it was purportedly served on me at the Muirfield Address.
21 . I did not reside or accept mail at the Muirfie1d Address at the time the Notice of Hearing was purportedly served.
22 . Further, the Register of Actions reflects that the Notice of Hearing was returned as undeliverable.
23. I never received service of the Notice of Hearing and did not learn about the hearing or the November 10, 2015 Judgment until on or about November 14,2015, when several friends told me that a judgment had been entered against me.
24. My failure to attend the November 10, 2015 Hearing was not intentional and not the result of conscious indifference. Rather I did not appear at the hearing because I never received the Notice of Hearing.
25 . The motion for new trial filed on my behalf is not being sought for the purposes of delay. To my knowledge, Zarauskas will not be prejudiced by the granting of a new trial.
FURTHER, AFFIANT SAYETH NAUGHT."
1 A true a nd correct copy of the Register of Actions is attached as Exhibi t A- 1.
TAB 3 80 // / DATED this_ day of December, 201y l BRUCEHITI
SUBSCRIBED AND SWORN TO BEFORE ME this ~day of December, 201 .
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AFFIDAVIT OF BRUCE HITI PAGE4 2327770vl 11131.002
TAB 3 81 Page I of2
REGISTER OF ACTIONS CAsE :-
FRANK ZARAUSKAS d/b/a BOONDOCK S BAR & GRILL vs. BRUCE HITT § Case Type· Suits on Debt § Date Filed: 0310612014 § Location: County Court at Law § File Custody/Location: County Clerk's Office §
RE.I...Al"ED CA!:iE INFORMATION
Related Cases t4C 162-L (other)
t'AMTY (Nl'ORMATION
Lead Attorneys Defendant HITT, BRUCE Cassie J . Dallas 4730 MUIRFIELD AVE Retained SAN ANGELO. TX 76901 214 -871-8200(W)
Plaintiff ZARAUSKAS, FRANK Doing Business CHARLES W. KtNG As BOONDOCK'S BAR & GRILL Retained 1106 AMBERTON PKWY 325-227-6536(W) SAN ANGELO. TX 76901
J.o:vuns & OK.DENS Ol·· nu: Couw:r DISPOSITIONS
I 1111012015 Default Judgment (Judicial Officer: Nolen. Ben)
OT!D;N EVt:NTS AND HEARINGS 0310612014 Original Peti tion & REQUEST FOR T R. 0 .. WITH AFFIDAVIT 03/0712014 Notice OF HEARING ON TEMP. RESTRAINING ORDER SET FOR 04-01-2014 AT 1:30PM 03110/201 4 Citation By Personal Service TO CONSTABLE FOR SERVICE 0311 012014 Citation BRUCEHITT HITT, BRUCE Served 0311812014 Returned 03119/2014 03/19/2014 Notice OF APPEARANCE 0410112014 Temporary Restraining Order (1 :30PM) (Judicial Officer Nolen, Ben) 0410212014 Order - DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER/INJUNCTION II SIGNED BY JUDGE NOLEN 04/0812014 Answer DEFENDANT'S ORIGINAL ANSWER AND COUNTERCLAIM 04/16/2014 Am ended PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION 06/03/2014 Order TRANSFER REGISTRY FUNDS FROM JP2 CASE#C14-082J2 AND CCL CASE 14C162-L TO THIS CAUSE 06/05/2014 COpy Sent TO BOOKKEEPER FOR TRANSFER 06124/2014 Order ADMINISTRATIVE CLOSING ORDER - WITHOUT PREJUDICE, UNTIL FURTHER ACTION IS INITIATED BY THE PARTIES 07/21/2014 ~ PLAINTIFF'S CERTIFICATE OF WRITTEN DISCOVERY DIRECTED TO DEFENDANT BRUCE HITT 09/2412014 Certificate PLAINTIFF'S CERTIFICATE OF WRITTEN RESPONSES TO DEFENDANTS REQUESTS FOR DISCLOSURE 11112/2014 Letter LETTER TO JUDGE NOLEN'S OFFICE FROM A TTY-CHARLES W KING 0212612015 Motion Motion (No Fee)- TO WITHDRAW 02/2612015 Proposed Order Proposed Order 0310312015 Notice OF HEARING ON MOTION TO WITHDRAW SCHEDULED FOR MARCH 12, 2015AT 9.00A.M.- MAIL SENT TO BRUCE HITTWA S RETURNED 03112/2015 Motion to Withdraw (9:00AM) (Judicial Officer Nolen. Ben) 0311312015 Order ALLOWING COUNSEL TO WITHDRAW SIGNED BY JUDGE NOLEN 07/231201 5 REQUEST FOR ADMISSIONS 10/16/2015 Notice
http://odysseypa.co.tom-green.tx.us/CaseDetail.aspx?CaseiD=946772 12/8/2015 TAB 3 82 Page 2 of2
OF HEARING ON MERTIS 11-10-1 5 AT 9:00AM Ill NOTICE TO BURGE HITT RETURNED UNDELIVERABLE 1111012015 Merits (9:00AM) (Judicial Off~eer Nolen, Ben) 11/1012015 Judgment JUDGMENT 1210412015 Notice Notice of Appearance or Counsel
FINANCIAL lNFOIU\tA T!ON
Defendant HITI, BRUCE Total Financial Assessment 36 00 Total Payments and Credits 36.00 Balance Due as of 12108/2015 0.00
11 /3012015 Transaction Assessment 36.00 1113012015 Payment Receipt# 2015-2566 HITI, BRUCE (36.00)
Plaintiff ZARAUSKAS. FRANK Total Financial Assessment 364.00 Total Payments and Credits 364 00 Balance Due as of 12108/2015 0.00
03/06/2014 Transaction Assessment 235.00 03/0612014 Transaction Assessment 4.00 03/06/2014 Transaction Assessment 75.00 03/06/2014 Payment Rece•pt # 2014-0522 KING. CHARLES W (314.00) 04/0812014 Transaction Assessment 50.00 0410812014 Payment Receipt# 2014 -0806 CARTER, BOYD, LISSON & HOHENSEE (50 00)
http://odysseypa.co.tom-green.tx.us/CascDetail.aspx?CaselD=946772 12/8/2015 TAB 3 83