GP Group of Companies, LLC D/B/A GP Construction Group and GP Commercial Roofing v. St. Joseph Catholic Parish and Michael F. Olson, Bishop of the Catholic Diocese of Fort Worth

• Court: Court of Appeals of Texas
• Decided: July 7, 2025
• Docket: 07-25-00065-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-25-00065-CV

GP GROUP OF COMPANIES, LLC D/B/A GP CONSTRUCTION GROUP AND GP COMMERCIAL ROOFING, APPELLANTS

V.

ST. JOSEPH CATHOLIC PARISH AND MICHAEL F. OLSON, BISHOP OF THE CATHOLIC DIOCESE OF FORT WORTH, APPELLEES

On Appeal from the 236th District Court Tarrant County, Texas Trial Court No. 236-355126-24, Honorable Tom Lowe, Presiding

July 7, 2025 MEMORANDUM OPINION 1 Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellants, GP Group of Companies, LLC d/b/a GP Construction Group and GP

Commercial Roofing (“GP Group”) appeal from the trial court’s denial of their motion to

set aside default judgment in favor of appellees St. Joseph Catholic Parish and Michael

1 This case was transferred to this court from the Second Court of Appeals pursuant to the Texas

Supreme Court’s docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3. F. Olson, Bishop of the Catholic Diocese of Fort Worth (“St. Joseph”). Through one issue,

GP Group argues the trial court erred in denying its motion because 1) its failure to timely

file an answer to St. Joseph’s lawsuit was not intentional or the result of conscious

indifference, 2) GP Group presented sufficient arguments and proof of meritorious

defenses, and 3) setting aside the default judgment would not prejudice St. Joseph. We

affirm.

Background

This suit arose from a contract dispute involving roof repairs. St. Joseph hired GP

Group to repair the church’s roofing system. As part of its contract, GP Group provided

to St. Joseph a five-year workmanship warranty, among other warranties. Upon

completion of the work, St. Joseph found it unsatisfactory and attempted to make a

warranty claim. GP Group allegedly ignored the requests; so, St. Joseph sued GP Group

for breach of express warranties, violations of the Texas Deceptive Trade Practices Act,

breach of implied warranty of fitness for a particular purpose, breach of implied warranty

of merchantability, breach of implied warranty of good and workmanlike services,

negligence, and breach of contract. It also sought recovery of attorney’s fees.

St. Joseph initially sent an email on July 31, 2024, directed to GP Group’s owner

and registered agent, Gregg Peterson. The subject line read “St. Joseph Catholic Church

of Arlington.” The email directed the reader to the attached PDF letter, entitled “2024.7.31

GP Commercial Demand Letter.” The attachment contained a notice letter, an inspection

report that spanned over 50 pages, and a copy of St. Joseph’s petition. There was neither

citation nor any direction to file an answer to a lawsuit. Furthermore, the language in the

notice letter included both a demand for either repairs or payment of damages and

2 reference to a lawsuit having been filed. The latter also directed attention to the petition

being attached as “Exhibit 2,” with the phrase “Exhibit 2” underscored in the original

document. Petersen and the general manager of GP Group attested that they 1) did not

realize the documents pertained to a lawsuit, 2) believed the items simply consisted of a

demand notice, and 3) did not notice the petition attached to the packet.

During the first week of August 2024, citation and the petition filed by St. Joseph

was formally served on Peterson. The latter, however, would ultimately attest that he did

not “recall” receiving this service, did not “recall” anyone telling him GP Group had been

sued, and did not realize that GP Group was served with a lawsuit.

Three days later, GP Group received a certified mail packet containing the identical

information included in the July 31 email. Again, Peterson and GP Group personnel

ostensibly believed the company had merely received a demand.

GP Group’s general manager then forwarded the information to the company’s

insurance broker. Soon thereafter, a claims adjuster apparently working on behalf of GP

Group contacted counsel for St. Joseph about the claim. On August 8, 2024, counsel for

St. Joseph responded, which response included both the information the adjuster sought

and the lawsuit. Communications between insurance personnel purportedly investigating

the claim on behalf of GP Group further revealed that by September 11, 2024, or about a

month before entry of default, they knew of the lawsuit having been filed. So too were

they mentioning between themselves the assignment of counsel to represent GP Group.

GP Group never filed an answer to St. Joseph’s lawsuit. And on August 30, 2024,

St. Joseph moved for entry of a default judgment. Said motion was granted on October

10, 2024. That resulted in entry of a final default judgment dated October 15, 2024.

3 Through it, the court awarded St. Joseph $569,263.00 against GP Group. GP Group

acknowledged receiving notice of the default judgment on October 15, 2024. It waited

until November 11, 2024, to move for new trial setting aside the previously entered default

judgment.

The trial court convened a hearing on GP Group’s motion on December 16, 2024.

Eleven days earlier, GP Group allegedly discovered the formal citation served during the

first week of August. It was found under a pile of papers which included the earlier mailed

notice of demand and suit. Ultimately, the trial court denied the motion.

Analysis

Via its sole issue, GP Group contends the trial court erred in denying its motion to

set aside default judgment. This is purportedly so because it presented evidence

satisfying each element to obtain a new trial. We overrule the issue.

The decision to grant or deny a new trial lies within the discretion of the trial court.

In re Sandoval, 619 S.W.3d 716, 721 (Tex. 2021). That discretion is limited, however.

Id. That is, the trial court must grant the motion for new trial and vacate a default judgment

if: 1) the defendant’s failure to answer was unintentional, did not result from conscious

indifference on its part, but rather was due to a mistake or an accident; 2) the defendant

averred a meritorious defense within its motion; and 3) granting the motion will not delay

or otherwise injure the plaintiff. Id. The burden to satisfy each of those three elements

lies with the party seeking new trial. Hofer Builders, Inc. v. Fireman’s Fund Ins. Co., No.

07-15-00117-CV, 2017 Tex. App. LEXIS 1087, at *6 (Tex. App.—Amarillo Feb. 7, 2017,

no pet.) (mem. op.).

4 Furthermore, when evidence creates an issue of fact regarding the first element,

for instance, the matter becomes a fact question that the trial court resolves. Kinara v.

Ongera, No. 02-22-00068-CV, 2022 Tex. App. LEXIS 8440, at *11 (Tex. App.—Fort

Worth Nov. 17, 2022, no pet.) (mem. op.). That is, “the question of why the defaulted

party failed to answer presents a fact question.” Id. And, under those circumstances, the

trial court, acting as the factfinder, is free to believe all, none, or part of the evidence.” Id.

Indeed, a “trial court does not abuse its discretion when it bases its decision on conflicting

evidence and there is evidence in the record that reasonably supports the decision . . .[;]

‘[t]he trial court’s choices among merely conflicting pieces of evidence cannot be an

abuse of discretion.’” Lopez v. Fluor Corp., No. 05-19-00970-CV, 2022 Tex. App. LEXIS

2763, at *16 (Tex. App.—Dallas Apr. 26, 2022, no pet.) (mem. op.). And, as an appellate

court, we defer to the factfinder’s credibility choices and choices regarding the weight to

assign testimony. Bharadwaja v. Hays, No. 08-24-00075-CV, 2025 Tex. App. LEXIS

4293, at *21 (Tex. App.—El Paso June 19, 2025, no pet. h.) (mem. op.); Hale v. Miller,

No. 01-19-00791-CV, 2021 Tex. App. LEXIS 5948, at *7 (Tex. App.—Houston [1st Dist.]

July 27, 2021, no pet.) (mem. op.). See also Lee v. Lee, No. 02-18-00006-CV, 2019 Tex.

App. LEXIS 5932, at *27 (Tex. App.—Fort Worth July 11, 2019, no pet.) (mem. op.)

(stating appellate courts generally afford great deference to a factfinder’s credibility

determinations although they need not defer to credibility determinations that are

unreasonable).

Regarding the first element, a defendant’s failure to answer is intentional or with

conscious indifference when the evidence illustrates it knew it was sued but did not care.

Kinara, 2022 Tex. App. LEXIS 8440, at *10; see also Milestone Operating, Inc. v.

5 ExxonMobil Corp. 388 S.W.3d 307, 310 (Tex. 2012) (same); Fid. & Guar. Ins. Co. v.

Drewery Constr. Co., 186 S.W.3d 571, 575-76 (Tex. 2006) (same). The court looks to

the knowledge and acts of the defendant in assessing that topic. Kinara, 2022 Tex. App.

LEXIS 8440, at *10. And, in attempting to prove the lack of intent or conscious

indifference, the movant must proffer some excuse for the failure to appear, even though

the excuse need not be a good one. Id. We further note that a defendant can file an

answer any time before the trial court grants default judgment. MCJ Engines, LLC v.

Kearney, No. 01-23-00217-CV, 2024 Tex. App. LEXIS 5576, at *7 (Tex. App.—Houston

[1st Dist.] Aug. 6, 2024, no pet.) (mem. op.).

Conscious Indifference

To reiterate, the burden lay with GP Group to prove its default was neither

intentional nor consciously indifferent, but rather the result of mistake or accident. It

attempted to prove as much by suggesting it knew not of either the citation or lawsuit. In

considering the allegation, the trial court did not simply have uncontroverted evidence

before it. While nothing may controvert Peterson’s allegation that he did not “recall” being

served with process or citation, the same is not true of knowing about the pending lawsuit.

St. Joseph, through its legal counsel, thrice informed GP Group of the suit. Twice was it

informed via the July 31 email and the early August mailing. Both contained a cover letter

explaining St. Joseph’s complaint and demand for repairs or damages. More importantly,

and immediately following the demand for repairs and damages, appeared the following:

Please contact this firm immediately to begin discussions to resolve this dispute and make St. Joseph whole. Because you have refused to honor your warranty and repair your defective work, St. Joseph has been forced to file the lawsuit enclosed as Exhibit 2. St. Joseph had to take this regrettable step because of your delays in handling this issue, but it remains willing to work toward a resolution of this matter. Be aware that if St. Joseph

6 is forced to fully litigate this matter, St. Joseph will also seek to recover treble damages under the Texas Deceptive Trade Practices Act.

(underscore in original). Reference, as of July 31, to a lawsuit having been filed due to

the alleged intransience of GP Group is apparent, though the company endeavors to

nominalize the revelation by casting the entire letter as a mere demand. While the

information may have been included with other data that explained the claim’s nature and

the willingness of the church to resolve the dispute, reference to the existing lawsuit

remains clear. And, that Peterson read both missives can be reasonably inferred from

his 1) statements about interpreting same as simply demands and 2) comments about

the 50-page report attached as Exhibit 1. That is, the trial court could have reasonably

deduced that interpreting the nature of a document meant Peterson had to first peruse it.

This is especially so given that Peterson did not expressly deny reading either letter.

Of further note are the somewhat morphing versions of what occurred offered by

Peterson and Princena, the general manager. For instance, both attested that no one

served them with citation. That changed once the individual who served process offered

his detailed affidavit. That, and the insistence of defense counsel, led Princena to “re-

review[], page-by-page, every single page of documentation we possessed.” And, “[i]t

was at this time that [Princena] discovered the citation papers I had not seen before on

my desk hidden behind a notepad, . . [which] notepad was located behind the Packet of

Demand documents we received via certified mail on August 5th.” In turn, Peterson

subsequently attempted to explain that his initial denial about being served simply related

to the time service was effectuated. And, while he allegedly did not recall ever being

served, he offered an explanation why he did not so recall. It related to the wardrobe

worn by the process server. Rather than wearing a uniform like those serving process in

7 other cases involving GP Group, Peterson “clearly did not realize that the private process

server in this case was performing the same task that uniformed officers do in serving me

an actual lawsuit . . . .” That comment can lead one to wonder why Peterson would

remember the wardrobe of a process server if he actually did not remember being served

with process. This morphing nature of testimony, at the very least, provided the trial court

fodder to question the credibility of those officers or employees testifying on behalf of GP

Group.

Indeed, the trial court’s utterance at the close of its December 16 hearing is telling

upon the topic of credibility when it came to knowing about being served. It said: “I once

heard a lawyer in trial . . . he became frustrated with the witness . . . and he finally said,

look, I can read it to you, but I cannot understand it for you.” We read the anecdote as

the trial court intimating that though Peterson and Princena may not have understood the

notice letters sent them, they nonetheless received and read them.

To that we add legal counsel expressly informing, on August 11, GP Group’s

insurer or insurance broker (Napoli), of the pending lawsuit. So too is there the bit of

evidence revealing that insurance personnel acting on behalf of GP Group or investigating

the claim discussed both 1) the fact of the pending suit and 2) the appointment of counsel

several weeks before entry of default.

Simply put, the trial court had evidence upon which to conclude that GP Group

knew of the lawsuit before entry of default. That very evidence, and reasonable

inferences from it, provided the court basis to 1) discredit or disbelieve the representations

of Peterson and Princena, 2) reject the explanation GP Group offered to justify the default,

and 3) conclude that GP Group failed to carry its burden of proving the default was neither

8 intentional nor consciously indifferent. And, the trial court having evidence to do same,

we cannot say it abused its discretion in denying GP Group’s motion to vacate the default

judgment and must affirm that decision.

Brian Quinn Chief Justice