IN THE TENTH COURT OF APPEALS
No. 10-08-00306-CV
DONNA ROBINSON, Appellant v.
ELLIOTT ELECTRIC SUPPLY, Appellee
From the 413th District Court Johnson County, Texas Trial Court No. C2007-00718
MEMORANDUM OPINION
Donna Robinson was sued by Elliott Electric Supply regarding a guaranty
agreement signed by Robinson. Robinson did not file an answer to the suit and Elliott
Electric was awarded a default judgment. Robinson timely filed a motion for new trial,
which was overruled by operation of law. Because Robinson met the three elements of
the Craddock test, we reverse the trial court’s judgment and remand for further
proceedings.
In one issue, Robinson argues that the trial court erred in effectively denying her
motion for new trial by allowing it to be overruled by operation of law because, she
argues, she either received no service of the citation and petition or that the service was deficient which would require the default judgment to be set aside and, alternatively,
she satisfied the Craddock elements to warrant a new trial.
We review a trial court's refusal to grant a motion for new trial for abuse of
discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Cliff v.
Huggins, 724 S.W.2d 778, 778 (Tex. 1987).
NO SERVICE/DEFICIENT SERVICE
A default judgment cannot withstand direct attack by a defendant who was not
served in strict compliance with applicable requirements. Wood v. Brown, 819 S.W.2d
799, 800 (Tex. 1991) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde
Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam));
Plains Chevrolet, Inc. v. Thorne, 656 S.W.2d 631, 633 (Tex. App.—Waco 1983, no writ).
Strict compliance does not, however, require "absolute obeisance to the minutest detail."
Herbert v. Greater Gulf Coast Enters., 915 S.W.2d 866, 871 (Tex. App.— Houston [1st Dist.]
1995, no pet.).
Robinson contends that she was not served with the citation and petition because
the officer’s return on the citation indicated that the petition was served in care of
Robinson’s former employer, Patman Drilling. We disagree with Robinson’s
contention. It is clearly stated on the face of the return that a true and correct copy of
the citation and petition was served on “Robinson, Donna, in person….” Robinson’s
statements to the contrary are insufficient to negate what is written on an officer’s
return. See Wood v. City of Galveston, 13 S.W. 227, 228 (Tex. 1890).
Robinson also contends that the return was deficient because it was unclear from
the face of the return who served the citation and petition and the return was not
Robinson v. Elliot Electric Supply Page 2 verified. We again disagree with Robinson’s contention. Contrary to her claim, it is
clear on the face of the return that the citation was served through Constable Pearce by
Deputy Tackett. Further, pursuant to Rule 107, the return need only be verified by an
“authorized person” if the person serving it is not an “officer.” TEX. R. CIV. P. 107.
Because a constable can act through a deputy, the deputy is an officer as contemplated
by Rule 107. See Travieso v. Travieso, 649 S.W.2d 818, 820 (Tex. App.—San Antonio 1983,
no writ). Accordingly, the return was not required to be verified.
As to this particular argument, the trial court did not abuse its discretion in
effectively denying Robinson’s motion for new trial.
THE CRADDOCK TEST
Alternatively, Robinson argues that she met the three elements of the Craddock
test, which would warrant a new trial. A default judgment should be set aside and a
new trial granted when the defaulting party establishes that (1) the failure to appear
was not intentional or the result of conscious indifference, but was the result of an
accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3)
granting the motion will occasion no delay or otherwise injure the plaintiff. Dolgencorp
of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009); Craddock v. Sunshine Bus Lines, Inc.,
134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). When a defaulting party moving for new
trial meets all three elements of the Craddock test, then a trial court abuses its discretion
if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926; Old Republic Ins. Co. v. Scott,
873 S.W.2d 381, 382 (Tex. 1994).
Robinson v. Elliot Electric Supply Page 3 First Element—Intentional Disregard or Conscious Indifference
In determining whether the failure to appear was due to intentional disregard or
conscious indifference we must look to the knowledge and acts of the defendant.
Director, State Emples. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). If
the factual assertions in the defendant's affidavit are not controverted by the plaintiff,
the defendant satisfies her burden if her affidavit sets forth facts that, if true, negate
intentional or consciously indifferent conduct by the defendant. Id. However,
conclusory allegations are insufficient. Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d
80, 82 (Tex. 1992). In determining if the defendant's factual assertions are controverted,
we look to all the evidence in the record. Director, 889 S.W.2d at 269.
In her affidavit filed with her motion for new trial, Robinson stated that she was
not personally served with the citation or a copy of the petition in this suit. She further
stated that she was unaware of the lawsuit until June 6, 2008 when she was notified by
Patman Drilling of the default judgment. Robinson then stated in her affidavit that
when she learned of the default judgment, she immediately contacted counsel. These
statements set forth facts which, if true, negate intentional or consciously indifferent
conduct. Elliott Electric did not controvert any of Robinson’s statements.
Robinson has satisfied the first element of the Craddock test.
Second Element—Meritorious Defense
Setting up a meritorious defense does not require proof "in the accepted sense.”
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 928 (Tex. 2009); Ivy v. Carrell, 407 S.W.2d
212, 214 (Tex. 1966). This does not mean that the motion should be granted if it merely
alleges that the defendant "has a meritorious defense." Ivy, 407 S.W.2d at 214. Rather,
Robinson v.
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IN THE TENTH COURT OF APPEALS
No. 10-08-00306-CV
DONNA ROBINSON, Appellant v.
ELLIOTT ELECTRIC SUPPLY, Appellee
From the 413th District Court Johnson County, Texas Trial Court No. C2007-00718
MEMORANDUM OPINION
Donna Robinson was sued by Elliott Electric Supply regarding a guaranty
agreement signed by Robinson. Robinson did not file an answer to the suit and Elliott
Electric was awarded a default judgment. Robinson timely filed a motion for new trial,
which was overruled by operation of law. Because Robinson met the three elements of
the Craddock test, we reverse the trial court’s judgment and remand for further
proceedings.
In one issue, Robinson argues that the trial court erred in effectively denying her
motion for new trial by allowing it to be overruled by operation of law because, she
argues, she either received no service of the citation and petition or that the service was deficient which would require the default judgment to be set aside and, alternatively,
she satisfied the Craddock elements to warrant a new trial.
We review a trial court's refusal to grant a motion for new trial for abuse of
discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Cliff v.
Huggins, 724 S.W.2d 778, 778 (Tex. 1987).
NO SERVICE/DEFICIENT SERVICE
A default judgment cannot withstand direct attack by a defendant who was not
served in strict compliance with applicable requirements. Wood v. Brown, 819 S.W.2d
799, 800 (Tex. 1991) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde
Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam));
Plains Chevrolet, Inc. v. Thorne, 656 S.W.2d 631, 633 (Tex. App.—Waco 1983, no writ).
Strict compliance does not, however, require "absolute obeisance to the minutest detail."
Herbert v. Greater Gulf Coast Enters., 915 S.W.2d 866, 871 (Tex. App.— Houston [1st Dist.]
1995, no pet.).
Robinson contends that she was not served with the citation and petition because
the officer’s return on the citation indicated that the petition was served in care of
Robinson’s former employer, Patman Drilling. We disagree with Robinson’s
contention. It is clearly stated on the face of the return that a true and correct copy of
the citation and petition was served on “Robinson, Donna, in person….” Robinson’s
statements to the contrary are insufficient to negate what is written on an officer’s
return. See Wood v. City of Galveston, 13 S.W. 227, 228 (Tex. 1890).
Robinson also contends that the return was deficient because it was unclear from
the face of the return who served the citation and petition and the return was not
Robinson v. Elliot Electric Supply Page 2 verified. We again disagree with Robinson’s contention. Contrary to her claim, it is
clear on the face of the return that the citation was served through Constable Pearce by
Deputy Tackett. Further, pursuant to Rule 107, the return need only be verified by an
“authorized person” if the person serving it is not an “officer.” TEX. R. CIV. P. 107.
Because a constable can act through a deputy, the deputy is an officer as contemplated
by Rule 107. See Travieso v. Travieso, 649 S.W.2d 818, 820 (Tex. App.—San Antonio 1983,
no writ). Accordingly, the return was not required to be verified.
As to this particular argument, the trial court did not abuse its discretion in
effectively denying Robinson’s motion for new trial.
THE CRADDOCK TEST
Alternatively, Robinson argues that she met the three elements of the Craddock
test, which would warrant a new trial. A default judgment should be set aside and a
new trial granted when the defaulting party establishes that (1) the failure to appear
was not intentional or the result of conscious indifference, but was the result of an
accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3)
granting the motion will occasion no delay or otherwise injure the plaintiff. Dolgencorp
of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009); Craddock v. Sunshine Bus Lines, Inc.,
134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). When a defaulting party moving for new
trial meets all three elements of the Craddock test, then a trial court abuses its discretion
if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926; Old Republic Ins. Co. v. Scott,
873 S.W.2d 381, 382 (Tex. 1994).
Robinson v. Elliot Electric Supply Page 3 First Element—Intentional Disregard or Conscious Indifference
In determining whether the failure to appear was due to intentional disregard or
conscious indifference we must look to the knowledge and acts of the defendant.
Director, State Emples. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). If
the factual assertions in the defendant's affidavit are not controverted by the plaintiff,
the defendant satisfies her burden if her affidavit sets forth facts that, if true, negate
intentional or consciously indifferent conduct by the defendant. Id. However,
conclusory allegations are insufficient. Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d
80, 82 (Tex. 1992). In determining if the defendant's factual assertions are controverted,
we look to all the evidence in the record. Director, 889 S.W.2d at 269.
In her affidavit filed with her motion for new trial, Robinson stated that she was
not personally served with the citation or a copy of the petition in this suit. She further
stated that she was unaware of the lawsuit until June 6, 2008 when she was notified by
Patman Drilling of the default judgment. Robinson then stated in her affidavit that
when she learned of the default judgment, she immediately contacted counsel. These
statements set forth facts which, if true, negate intentional or consciously indifferent
conduct. Elliott Electric did not controvert any of Robinson’s statements.
Robinson has satisfied the first element of the Craddock test.
Second Element—Meritorious Defense
Setting up a meritorious defense does not require proof "in the accepted sense.”
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 928 (Tex. 2009); Ivy v. Carrell, 407 S.W.2d
212, 214 (Tex. 1966). This does not mean that the motion should be granted if it merely
alleges that the defendant "has a meritorious defense." Ivy, 407 S.W.2d at 214. Rather,
Robinson v. Elliot Electric Supply Page 4 the motion sets up a meritorious defense if it alleges facts which in law would constitute
a defense to the plaintiff's cause of action and is supported by affidavits or other
evidence providing prima facie proof that the defendant has such a defense.
Dolgencorp, 288 S.W.3d at 928; Ivy, 407 S.W.2d at 214. Once such requirements are met,
controverting evidence offered by the nonmovant should not be considered. Id.
In her motion for new trial, Robinson asserted as her “meritorious defense” that
1. she served as an assistant to the Chief Operating Officer during her employment with Patman Drilling;
2. she was never a principal of Patman Drilling;
3. she has not, and it was never her intent to, “personally guarantee any debts of Patman Drilling.”
While inartfully stated, it appears Robinson is arguing that she did not sign the credit
agreement with Elliott Electric in her individual capacity. The credit agreement,
attached to Elliott Electric’s original petition, indicates that Robinson’s signature is
followed by the words, “Assistant to C.O.O.” Further, Robinson asserts she had not
personally guaranteed Patman Drilling’s debts. We hold this is sufficient proof of a
meritorious defense that Robinson did not sign the application for credit in her
individual capacity and as such did not personally guarantee her employer’s debt to
satisfy the Craddock test.
Robinson has satisfied the second element of the Craddock test.
Third Element—Delay or Injury
In satisfying the third Craddock element, once the defendant has alleged that the
granting of a new trial will not delay or otherwise injure the plaintiff, the burden of
going forward with proof of injury shifts to the plaintiff for these are matters peculiarly
Robinson v. Elliot Electric Supply Page 5 within the plaintiff's knowledge. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); see
also Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 929 (Tex. 2009). An offer to
reimburse the plaintiff for costs incurred in obtaining the default judgment or readiness
for trial are not a precondition for granting the motion. Id.; Angelo v. Champion
Restaurant Equip. Co., 713 S.W.2d 96, 97 (Tex. 1986).
Robinson alleged in her motion for new trial that granting her motion would not
injure Elliott Electric or cause an unreasonable delay in rendering a fair and equitable
judgment between the parties. Elliott Electric did not address this assertion at all in its
response to Robinson’s motion.
Therefore, Robinson has satisfied the third element of the Craddock test.
Conclusion
Because Robinson has satisfied all three elements, the trial court abused its
discretion in effectively denying her motion for new trial by allowing it to be overruled
by operation of law. Robinson’s issue is sustained.
Having sustained Robinson’s sole issue, we reverse the judgment of the trial
court and remand this case for a new trial.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Reyna, and Justice Davis Reversed and remanded Opinion delivered and filed November 25, 2009 [CV06]
Robinson v. Elliot Electric Supply Page 6