Pat R. Brady v. State

• Court: Court of Appeals of Texas
• Decided: October 5, 2000
• Docket: 13-99-00393-CV
• Status: Published

Opinion

NUMBER 13-99-393-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

PAT R. BRADY

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 347th District Court of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

This is an appeal from the granting of a default judgment. The State filed suit against appellant, Pat Brady, seeking forfeiture of $2,438. The State alleged that the money was contraband subject to seizure under the forfeiture statute, Chapter 59 of the Texas Code of Criminal Procedure. Brady failed to answer, and the trial court entered a default judgment, ordering forfeiture of the money. The trial court denied Brady's motion for new trial. The sole issue is whether the trial court abused its discretion in denying the motion for new trial. We reverse and remand.

Standard of Review

In determining whether a default judgment should be set aside we apply the test stated in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The Texas Supreme Court has interpreted the Craddock test as having the following three elements: (1) that 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 (2) the motion for new trial sets up a meritorious defense; and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Bank One, Texas v. Moody, 830 S.W.2d 81, 82-83 (Tex. 1992).

I. Conscious Indifference

Brady filed an affidavit along with his motion for new trial. He swore that after being served he had been "out of town" part of the time. He tried to confer with his attorney but could not do so because his attorney was busy with other cases. Brady stated that his failure to file an answer was not intentional nor the result of conscious indifference. He stated that he "did not get a chance to confer with my attorney and file an answer. This was due to mistake or accident."

Brady's affidavit was uncontroverted. When factual allegations in a movant's affidavit are not controverted a conscious indifference question must be determined in the same manner as a claim of meritorious defense. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). It is sufficient that the movant's motion and affidavit set forth facts which, if true, would negate intentional or consciously indifferent conduct. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987).

Although Brady may have been negligent in failing to file an answer, conscious indifference means more than mere negligence. Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). Because Brady set forth facts that, if true, would negate intentional or consciously indifferent conduct in failing to file an answer we conclude that he met the first element of Craddock.

II. Meritorious Defense

Setting up a meritorious defense is determined based on the facts alleged in the movant's motion and supporting affidavit, and it is sufficient that the motion and affidavit set forth facts which in law constitute a meritorious defense. Director v. Evans, 889 S.W.2d 266, 270 (Tex. 1994). Brady swore that the $2,438 was his money and that it was not obtained from or connected to any illegal activity. These facts show that the money was not contraband and, therefore, establish a meritorious defense to the suit. See Tex. Code Crim. Proc. Ann. art. 59.02(a) (Vernon Supp. 2000) (stating that property that is contraband is subject to seizure and forfeiture). We conclude that Brady met the second Craddock element.

III. No Delay or Injury

Once a defendant has alleged that granting a new trial will not injure the plaintiff the burden of going forward with proof of injury shifts to the plaintiff. Evans, 889 S.W.2d at 270. Brady alleged that the motion for new trial was filed at a time when granting it would cause no delay in trial or otherwise work any injury to the State. Brady stated that he was ready to defend the suit. The State offered no evidence to show that granting a new trial would cause delay or injury. We conclude that Brady met the third prong of the Craddock test.

Because Brady met the Craddock test the trial court abused its discretion by denying his motion for new trial. Moody, 830 S.W.2d at 85. We sustain the issue.

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

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 5th day of October, 2000.