Litchfield v. Litchfield

794 S.W.2d 105, 1990 Tex. App. LEXIS 1855, 1990 WL 105859

• Court: Court of Appeals of Texas
• Decided: July 26, 1990
• Docket: 01-89-00585-CV
• Status: Published

Opinions

OPINION

MIRABAL, Justice.

This is an appeal from a post-answer default judgment for child support arrear-ages in the principal amount of $43,800.00.

The trial court entered a default judgment against appellant, William Litchfield, because neither he nor his attorney was present at the time the case was called for trial. Appellant timely filed a motion for new trial, and, after a hearing, the trial court denied the motion. We reverse.

In his first point of error, appellant asserts that the trial court abused its discretion in denying appellant’s motion for new trial.

A motion for new trial is addressed to the trial court’s discretion, and the court’s ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). However, trial courts do not have unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle. Id. The guiding rule, applicable alike to motions for new trial that seek to set aside default judgments entered on failure of a defendant to file an answer, and those entered on failure to appear for trial, was stated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), as follows:

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 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.

Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966) (quoting Craddock, 134 Tex. at 393, 133 S.W.2d at 126).

Appellee filed no response to appellant’s motion for new trial.¹ Where factual allegations in a movant’s affidavits are not controverted, they will be sufficient to entitle the movant to a new trial if facts are set forth that, if true, would negate intentional or consciously indifferent conduct. Strackbein, 671 S.W.2d at 38-39.

Appellant’s motion for new trial was accompanied by affidavits from appellant and his trial counsel. His trial counsel’s affidavit stated the following facts: An eviden-tiary hearing was set for February 20, 1989, on appellee’s “motion to enforce child support order by contempt, to confirm ar-rearage and render judgment, and to withhold from earnings.” On February 20, 1989, at approximately 8:20 a.m., appellant’s counsel telephoned the clerk of the trial court and advised her that he had other matters pending that morning in two other Harris County district courts, and he would be in the trial court as soon as possible; he told the clerk which courts he would be in. Appellant’s counsel was in one district court from 9:00 a.m. to 10:00 a.m. in connection with pleas in abatement, a motion to stay, and special exceptions. When he arrived in the second court to oppose a motion for summary judgment at approximately 10:00 a.m., he was advised that he needed to go to the trial court immediately because it appeared that the trial court was going to proceed without him. When appellant’s counsel arrived in the trial court at approximately 10:05 a.m., he learned that the trial court had entered a default judgment against appellant, apparently without considering appellant’s pending motion to dismiss, motion for continuance, and special exceptions. It appeared to appellant’s counsel that the trial court had entered the default judgment when the judge reached the incorrect conclusion that appellant’s counsel was not in fact in either of the other two courts that morning. Attached to the affidavit of appellant’s counsel is a handwritten letter from the presiding judge of the first court that appellant’s counsel had appeared in that court on February 20; the letter confirms that appellant’s counsel was present in that court from 9:00 a.m. until approximately 10:00 a.m. on February 20.

Appellant’s counsel’s affidavit continues as follows: He had sought an agreement for a one week continuance of the trial in written correspondence with appellee’s counsel due, in part, to the fact he had several other hearings scheduled for the morning of February 20, but appellee’s counsel refused to agree to a continuance. He had also attempted to reschedule the matters pending in the other two district courts so that he could proceed solely with the trial in the trial court, but neither the courts nor the other opposing counsel would agree to continuances. He acted in complete good faith and did not intentionally delay the trial court’s proceedings; he did everything he could to accommodate the trial court’s docket.

In determining whether there was intentional disregard or conscious indifference, we must look to the knowledge and acts of the defendant and his counsel. Strackbein, 671 S.W.2d at 39. Appellant’s counsel’s affidavit constituted the only evidence before the trial court on that issue, and we find that there is no reasonable interpretation of that affidavit which would constitute evidence that he intentionally, or with conscious indifference, allowed a judgment to be entered against his client by his failure to be physically present in the trial court when the case was called for trial. Rather, the affidavit shows appellant’s counsel was mistaken when he anticipated the trial court would delay the start of trial until he was in attendance.²

We further find that appellant’s motion for new trial, with supporting affidavits, satisfies the second and third requirements of Craddock, i.e., it sets up a meritorious defense, and it was filed at a time when the granting thereof would occasion no delay or otherwise work an injury to appellee.

It is true that the trial court apparently reached a different conclusion after conducting a hearing on appellant’s motion for new trial. However,

[t]he 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 of Craddock. If the motion and the affidavits meet those requirements, a new trial should be granted.

Strackbein, 671 S.W.2d at 39.

We hold that, in this case, the Craddock requirements have been met, and we accordingly sustain appellant’s first point of error. It is therefore unnecessary to address appellant’s remaining points of error.

We reverse the judgment and remand the cause for a new trial.

EVANS, G.J., dissents.

1 . Also, appellee did not file a responsive brief in this appeal.

2 . From the transcript of the non-evidentiary hearing on the motion for new trial, it appears that the trial judge did request his clerk to locate appellant’s counsel in the other courts, and the clerk was unable to do so. The trial court then proceeded to trial without appellant's counsel.