ACCEPTED 05-18-00168-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/4/2018 11:42 AM LISA MATZ CLERK
ORAL ARGUMENT REQUESTED
No. 05-18-00168-CV FILED IN 5th COURT OF APPEALS DALLAS, TEXAS IN THE COURT OF APPEALS 6/4/2018 11:42:00 AM LISA MATZ FOR THE FIFTH DISTRICT OF TEXAS Clerk
AT DALLAS _____________________________________________________________
WARREN GATTENBY Appellant
vs.
TIB-THE INDEPENDENT BANK Appellee _____________________________________________________________ On Appeal from the 193rd District Court Dallas County, Texas Trial Court Cause No. DC-17-12078 _____________________________________________________________
APPELLANT’S BRIEF _____________________________________________________________
Robert M. Clark State Bar No. 04298200 Eddleman & Clark 4627 N. Central Expressway Dallas, Texas 75205-4022 (Voice) 214.528.2400 (Fax) 214.528.2434 RMC@RobertMClark.net
ATTORNEY FOR APPELLANT
1 IDENTITY OF PARTIES AND COUNSEL
In accordance with Rule 38.1 of the Texas Rules of Appellate
Procedure, Appellant Warren Gattenby certifies that the following is a
complete list of all parties with any interest in this Appeal from a Default
Judgment by the Hon Carl Ginsberg, Presiding Judge of the 193rd Judicial
District Court.
Appellant WARREN GATTENBY
Appellant’s Attorney ROBERT M. CLARK Eddleman & Clark 4627 North Central Expressway Dallas, Texas 75205-4022 (Voice) 214.528.2400 (Fax) 214.528.2434 RMC@RobertMClark.net
Appellee TIB-THE INDEPENDENT BANK
Appellee's Attorney Christopher R. DeLoney The DeLoney Law Group 6440 N. Central Expressway, Suite 850 Dallas, TX 75206 (voice) 214.741.7911 (fax) 214.573.7970 chris@deloneylawgroup.com
Brief of Appellant - Page ii 2 REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 39.7 of the Texas Rules of Appellate Procedure,
Appellant Warren Gattenby requests oral argument in this case.
Brief of Appellant - Page iii 3 TABLE OF CONTENTS
Identity of Parties and Counsel ............................................................... ii
Request for Oral Argument..................................................................... iii
Table of Contents .................................................................................... iv
Index of Authorities: Case Law......................................................................................... vi Statutes ............................................................................................ vi
Statement of the Case ............................................................................. 1
Statement of Jurisdiction ........................................................................ 3
Issues Presented: Issue 1 ..................................................................................................... 4 Sub-issue 1a ..................................................................................... 4 Sub-issue 1b ..................................................................................... 4 Sub-issue 1c ..................................................................................... 4
Statement of the Facts ............................................................................. 5
Summary of the Argument ..................................................................... 9
Argument and Authorities:
I. The District Court abused its discretion in finding that a new trial was not warranted under Craddock.......................................... 10
II. The Elements or Prongs of the Craddock Test A. First Prong. The District Court Correctly Found that the First Element of the Craddock Test was Satisfied .................... 12 B. Gattenby Satisfied the Second Element of the Craddock Test .. 16 C. Gattenby Satisfied the Third Element of the Craddock Test ..... 20
Prayer for Relief ...................................................................................... 21
Brief of Appellant - Page iv 4 Signature Page ........................................................................................ 22
Certificate of Service .............................................................................. 22
Certificate of Compliance ....................................................................... 22
Index of Appendix .................................................................................. 22
Appendix No. 1: Default Judgment of December 19, 2017 .................. 24
Appendix No. 2: Warren Gattenby’s January 11, 2018 Motion for New Trial after Default Judgment.................................. 26
Brief of Appellant - Page v 5 INDEX OF AUTHORITIES
Cases Angelo v. Champion Restaurant Equip. Co., 713 S.W.2d 96, 98 (Tex. 1986) ................................................................................................ 21 Boyes v. Morris Polich & Purdy, LLP, 169 S.W.3d 448, 453–54 (Tex. App.– El Paso 2005, no pet.) ........................................................... 20 Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.--Fort Worth 2001, pet. denied) ...................................................................................... 18 Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex. 1979) ................................................................................................ 12 City of Laredo v. Montana, 414 SW3d 731, 736 (Tex. 2013) ...................... 19 Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987) ..................................... 21 Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) ................................................................................................ 12 Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939) ........................................................................................ 4, 9, 11 Diagnostic Clinic of Longview, P.A. v. Neurometrix, Inc., 260 S.W.3d 201, 205 (Tex. App.—Texarkana 2008, no pet.) ......................... 11 Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268–69 (Tex. 1994) .............................................................. 13 Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 927–928 (Tex. 2009) ................................................................................................ 16 Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 405 (Tex. App.- El Paso 2009, no pet.) ................................................................................ 18 El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762, 764 (Tex. 2012) .............. 19 Evans, 889 S.W.2d at 270 ....................................................................... 16, 21 Fidelity & Guaranty Ins. Co. v. Drewery Construction Co., 186 S.W.3d 571 (Tex. 2006) ................................................................ 13, 14, 16 Gardner v. Jones, 570 S.W.2d 198, 201 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ) ........................................................................... 19 Hock v. Salaices, 982 S.W.2d 591, 593 (Tex. App.–San Antonio 1998, no pet.) ....................................................................................................... 11 Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) ......................................... 16 Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.–Corpus Christi 1990, writ denied) ................................................................................................ 14 Jaco v. Rivera, 278 S.W.3d 867, 873 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ............................................................................................. 19
Brief of Appellant - Page vi 6 Jaramillo v. Portfolio Acquisitions, LLC, 2010 Tex. App. LEXIS 2219 (Tex. App. – Houston [14th Dist.] 2010, no pet.) ..................................... 18 Kinsel v. Lindsey, 526 S.W.3d 411(Tex. 2017) ............................................ 19 Levine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 168 (Tex. 2008) ................................................................................................ 13 Long v. Griffin, 442 S.W.3d at 255............................................................... 20 Miller v. Miller, 903 S.W.2d 45, 47 (Tex. App.–Tyler 1995, no writ) ........ 12 Moir v. Citibank (S. Dakota), N.A., 2010 Tex. App. LEXIS 4870 (Tex. App. – Dallas 2010, no pet.)...................................................................... 18 Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.--Dallas 2005, no pet.) ............................................................................................. 18 Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.–San Antonio 1996, no writ) ............................................................................................ 12 Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex.1984)...................... 10, 13 Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993) ................................................................................................ 17 Titan Indem. Co. v. Old S. Ins. Group, Inc., 221 S.W.3d 703, 708 (Tex. App.–San Antonio 2006, no pet.) .............................................................. 11 Torrington Co. v. Stutzman, 46 S.W.3d 829, 842 (Tex. 2000)..................... 12 Walker v. Guitierrez, 111 S.W. 3d 56, 64 (Tex. 2003)................................. 13
Statutes Texas Government Code, §22.201(f) ............................................................. 3
Brief of Appellant - Page vii 7 No. 05-18-00168-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS _____________________________________________________________
TIB-THE INDEPENDENT BANK Appellee _____________________________________________________________ On Appeal from the 193rd District Court Dallas County, Texas Trial Court Cause No. DC-17-12078 _____________________________________________________________
STATEMENT OF THE CASE
TO THE HONORABLE JUDGE OF SAID COURT:
Appellant Warren Gattenby respectfully submits his Brief on the Merits and
petition this Court to grant review of the default judgment of the 193rd District
Court, Dallas County, Texas, regarding the issues presented concerning the
requirements for vacating and setting aside a default judgment under the Craddock
test and in support thereof, Petitioners respectfully show the Court the following:
Appellant’s Brief - Page 1 of 23
8 Nature of the case:
This case involves the trial court’s refusal to set aside a default judgment in
a breach of contract case, on the defendant’s motion for new trial.
Trial Court:
The 193rd Judicial District of Dallas County, Texas, the Honorable Carl
Ginsberg presiding.
Trial Court’s Disposition:
On December 19, 2017, a no-answer default judgment was rendered in favor
of TIB-THE INDEPENDENT BANK awarding $16,935.87 as principal amount
due and $3,000 as attorney’s fees. On January 11, 2018, Gattenby filed a motion
for new trial after default judgment. The Trial Court held a hearing on January 22,
2018, and entered an order denying Gattenby’s motion on January 22, 2018.
Appellant’s Brief - Page 2 of 23
9 STATEMENT OF JURISDICTION
This Court has jurisdiction over this matter pursuant to sections 22.201(f) of
the Texas Government Code for the following reasons:
This appeal is from the 193rd Judicial District Court of Dallas County,
Texas.
Appellant’s Brief - Page 3 of 23
10 ISSUES PRESENTED
Issue 1: The Trial Court Abused its Discretion in Denying Gattenby’s
Motion for New Trial because He Satisfied All of the Requirements of Craddock v.
Sunshine Bus Lines, Inc.
Sub-issue 1a: The Trial Court Correctly Concluded that Gattenby’s failure to
answer was not intentional, or the result of conscious indifference, but was due to a
mistake or accident.
Sub-issue 1b: The Trial Court Erred in Concluding that Gattenby’s evidence
of a meritorious defense was conclusory. There is evidence disputing TIB’s
standing to bring this claim; there is evidence disputing the amount of damages
even if it does own the claim; and there is no evidence supporting the attorney’s
fees awarded to TIB in the Trial Court or on appeal.
Sub-issue 1c: There was testimony that granting a new trial would occasion
no delay or otherwise work an injury to the plaintiff, and TIB never attempted to
dispute that.
Appellant’s Brief - Page 4 of 23
11 STATEMENT OF FACTS
TIB-The Independent BankersBank [hereinafter “TIB”] alleged that Warren
Gattenby opened credit card account number ending in -0108. TIB further alleged
that Gattenby used or authorized use of the account. TIB alleged that it sent
monthly statements to Gattenby, which statements itemized the transactions,
charges, debits, credits, and/or payments to the account. TIB alleged that Gattenby
ceased making payments on or about April 12, 2014, and that there was an unpaid
balance of $16,935.87. It asserted causes of action for both breach of contract and
account stated. (CR8). TIB also sought $3,000 attorney’s fees in obtaining a
judgment, $1500 if the bank successfully defends a pre-appeal attack on any
judgment it obtained, $10,000 from an unsuccessful appeal to the Court of
Appeals, and an additional $10,000 for an unsuccessful appeal to the Texas
Supreme Court. (CR9).
The record shows that Gattenby was served on October 4, 2017 (CR 12),
which would have made his answer due on October 30, 2017. The record shows
that no answer was filed by that date.
However, the record also shows that no hearing was held to prove up the
defendant’s default. (CR 5-6). Instead, TIP filed a motion for default judgment and
attached affidavits to support damages and attorney’s fees. (CR 15-24). The sole
evidence in support of damages was a business records affidavit by Darlene Pence,
Appellant’s Brief - Page 5 of 23
12 which stated that she worked for TIB, but purported to authenticate a credit card
bill issued by Town North Bank in the name of Warren Gattenby. There was no
evidence explaining any connection between TIB and Town North Bank. (CR 17-
18).
The sole evidence of attorney’s fees is an affidavit by Christopher Deloney.
The affidavit includes no information about Mr. Deloney’s experience. It states
that his hourly rate was $300.00, but includes no information about the hours spent
or expected to be spent subsequent to the entry of judgment. It states that he took
the case on a contingent fee, and includes no billing records or time information.
The affidavit merely states that a reasonable fee for services prior to judgment
were $3,000.00, for post-judgment services would be $1500.00, for appeal to the
court of appeals and $10,000 for appeal to the Supreme Court. There is no
explanation at all for why these particular fees are reasonable. (CR 19-20).
The district court then entered a default judgment in favor of TIB for all of
the amounts requested. (CR 26).
Gattenby filed a motion for new trial which set up a meritorious defense.
(CR 27). The defenses were supported by the affidavit of Warren Gattenby, who
stated that that he had never opened an account with TIB, that he did not owe (a
nonparty) Town North Bank the amount claimed on the statement (CR35-36).
Appellant’s Brief - Page 6 of 23
13 Gattenby’s attorney testified that the file contained no evidence of any assignment
of the claim to TIB. (CR32).
The motion also asserted that Gattenby’s failure to timely file an answer was
due to a mistake, which was supported by the affidavits of attorney Robert M.
Clark, and his wife, Kimberly Clark. (CR 32-34). Robert Clark stated in his
affidavit that the failure to timely file an answer was his fault. Gattenby had been
served on October 4, 2017 (which would make his answer due on October 30,
2017). Gattenby met with Clark at Clark’s office on October 18, 2017, but did not
retain him until he delivered a retainer to Clark’s wife at Clark’s personal residence
on October 19, 2017. (CR31). The papers relating to Gattenby’s case were then
inadvertently paperclipped to the papers in another file, and as a result, no file was
opened for Gattenby, and no answer was filed. (CR32). Kimberly Clark confirmed
in her affidavit that she had accidentally paperclipped the Gattenby papers with
papers from another file. (CR 34).
Finally, Gattenby’s motion for new trial asserted that the granting of a new
trial would not prejudice or otherwise injure TIB. (CR 29).
A hearing was held on the Motion on January 22, 2018 (RR1). The trial
court heard no additional evidence at the hearing, but only legal argument. (RR 4-
12).
Appellant’s Brief - Page 7 of 23
14 The trial court conceded that a mistake had occurred and that the failure to
answer was not due to conscious indifference. (RR 4).
However, the court proceeded to declare Gattenby’s evidence of a
meritorious defense to be conclusory, and denied the motion. (RR 12). This,
despite plaintiff’s counsel’s admission that he had failed to allege or prove the
connection between TIB and Town North Bank. (RR 9).
An order denying Gattenby’s Motion for New Trial was signed on January
22, 2018, (CR 45), and a Notice of Appeal was filed February 19, 2018 (CR46).
Appellant’s Brief - Page 8 of 23
15 SUMMARY OF THE ARGUMENT
The Trial Court abused its discretion in denying Gattenby’s motion for new
trial. It is well-established that a Trial Court abuses its discretion in not setting
aside a default judgment when the defendant has satisfied the three requirements
set forth in Craddock v. Sunshine Bus Lines, Inc.: (1) that the defendant’s failure
to answer was not intentional, or the result of conscious indifference, but was due
to a mistake or accident; (2) that there is a meritorious defense; and (3) that
granting a new trial will occasion no delay or otherwise work an injury to the
plaintiff. The trial court conceded that the first element had been met, but held that
Gattenby’s testimony setting forth a meritorious defense was conclusory. The third
element was never contested.
Gattenby’s testimony that he had never opened an account with TIB, that he
did not owe Town North Bank the amount claimed on the statement, and that he
was aware of no assignment of the account from Town North Bank to TIB sets up
no less than two meritorious defenses: that TIB lacked standing to bring the action,
and that even if it did own the claim, the amount of damages claimed was wrong.
It was TIB’s burden to establish its standing to bring this suit by proving that
it owned the account sued upon. Their counsel admitted at the hearing on
Gattenby’s motion for new trial that he had failed to do that. Their evidence
Appellant’s Brief - Page 9 of 23
16 showed an amount due to Town North Bank, and neither alleged nor proved any
connection between TIB and Town North Bank.
Gattenby’s statement that he did not owe Town North Bank the amount
claimed on the statement is also sufficient to set up a meritorious defense. The law
is clear that evidence disputing the amount of damages is sufficient to set up a
meritorious defense under Craddock and would require a remand to prove up the
correct amount of damages.
There is legally insufficient evidence to support the award of attorney’s fees
in the trial court and for any appeals. The attorney’s affidavit states his hourly fee,
but includes no evidence of the time spent or the time expected to be spent in the
future. It includes no billing records and not even an estimate of the time spent.
The affidavit simply states a bald conclusion as to the amount of fees pre-
judgment, post- trial, on appeal to this court and on appeal to the supreme court,
with no explanation whatsoever as to how those amounts were calculated.
ARGUMENT AND AUTHORITIES
I. THE DISTRICT COURT ABUSED ITS DISCRETION IN FINDING THAT ANEW TRIAL WAS NOT WARRANTED UNDER CRADDOCK
A trial court’s denial of a motion for new trial will not be disturbed on
appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d
37, 38 (Tex. 1984). This Court has found that a trial court abuses its discretion in
Appellant’s Brief - Page 10 of 23
17 failing to grant a new trial when the party seeking such relief has demonstrated that
all three Craddock elements have been met. See id. at 38–39; see also Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Pursuant to Craddock,
the party seeking a new trial must demonstrate that: (1) its failure to appear “was
not intentional, or the result of conscious indifference, but was due to a mistake or
accident”; (2) there is a “meritorious defense”; and (3) granting a new trial “will
occasion no delay or otherwise work an injury to the plaintiff.” Craddock, 133
S.W.2d at 126.
The Craddock doctrine addresses a fundamental ideal of our legal system:
the doors to the courthouse should not be shut on anyone without an exceptionally
good reason. Craddock, 133 S.W.2d at 125–26. “It is a basic tenet of jurisprudence
that the law abhors a default judgment because equity is rarely served by a
default.” Diagnostic Clinic of Longview, P.A. v. Neurometrix, Inc., 260 S.W.3d
201, 205 (Tex. App.—Texarkana 2008, no pet.) (citing Titan Indem. Co. v. Old S.
Ins. Group, Inc., 221 S.W.3d 703, 708 (Tex. App.–San Antonio 2006, no pet.));
see also Hock v. Salaices, 982 S.W.2d 591, 593 (Tex. App.–San Antonio 1998, no
pet.). Instead, our legal system prefers decisions based on the merits of a case and,
accordingly, the “historical trend has been toward the liberal granting of new
trials.” Titan Indem. Co., 221 S.W.3d at 708; see also Custom-Crete, Inc. v. K-Bar
Servs., 82 S.W.3d 655, 658 (Tex. App.–San Antonio 2002, no pet.); Norton v.
Appellant’s Brief - Page 11 of 23
18 Martinez, 935 S.W.2d 898, 901 (Tex. App.–San Antonio 1996, no writ); Miller v.
Miller, 903 S.W.2d 45, 47 (Tex. App.–Tyler 1995, no writ).
In TIB’s default judgment, the Trial Court provided no factual or legal basis
for its ruling other than the boiler plate language that it had considered the
pleadings and records in the file in this cause and the evidence…” which supported
the judgment (CR25). Absent findings of fact and conclusions of law, the court of
appeals must presume that the trial court made findings necessary to support its
order if there is sufficient evidence to support such findings. Torrington Co. v.
Stutzman, 46 S.W.3d 829, 842 (Tex. 2000) (citing Carter v. William Sommerville
& Son, Inc., 584 S.W.2d 274, 276 (Tex. 1979) (“When no findings of fact and
conclusions of law are filed, the trial court's judgment implies all necessary
supporting fact findings.”). Where there is some evidence tending to support the
trial court’s conclusions, the trial court does not abuse its discretion in refusing to
set aside the default judgment. Continental Coffee Prods. Co. v. Cazarez, 937
S.W.2d 444, 450 (Tex. 1996). In this case there is no evidence to support the Trial
Court’s finding that Gattenby failed to satisfy the Craddock elements; therefore,
the Trial Court abused its discretion by refusing to grant a new trial.
II. ELEMENTS OR PRONGS OF THE CRADDOCK TEST
A. The District Court Correctly Found that the First Element of the Craddock Test was Satisfied.
Appellant’s Brief - Page 12 of 23
19 The trial court correctly found that Gattenby’s failure to file an answer a
mistake and not conscious indifferent. RR13.
A defendant will satisfy the first element of the Craddock test if its factual
assertions are uncontroverted and negate intent or conscious indifference. See
Walker v. Guitierrez, 111 S.W. 3d 56, 64 (Tex. 2003); see also Director, State
Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268–69 (Tex. 1994)
(in determining whether the first prong of the Craddock test has been met, a court
“must consider the knowledge and acts of the defendant.”). This Court has stated
that “intentional or conscious indifference” is synonymous with the sentiment that
“the defendant knew it was sued but did not care.” Fid. & Guar. Ins. Co. v.
Drewery Constr. Co., 186 S.W.3d 571, 575–76 (Tex. 2006) (per curiam). Thus, the
standard to demonstrate “intentional or conscious indifference” is more onerous
than the “reasonable person” standard necessary to demonstrate negligence. See
Levine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 168 (Tex.
2008); see also Fidelity, 186 S.W.3d at 575–76. To satisfy the first element of the
Craddock test, a defendant’s excuse “need not be a good one to suffice.” Fidelity,
186 S.W.3d at 576.
In evaluating whether the first element of the Craddock test was satisfied,
the Court must consider whether the evidence relating to Gattenby’s actions was
uncontroverted. Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex.1984) (Where
Appellant’s Brief - Page 13 of 23
20 the factual allegations are not controverted, it is sufficient to set forth facts which,
if true, would negate intentional or consciously indifferent conduct.); see also
Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.–Corpus Christi 1990, writ
denied) (same).
Moreover, there is nothing in Mr. Clark’s testimony, or anywhere else in the
record, that even suggests the failure to answer was deliberate or the result of
conscious indifference (CR31-33).
In Fidelity & Guaranty Ins. Co. v. Drewery Construction Co., 186 S.W.3d
571 (Tex. 2006), the Supreme Court was called upon to examine the burden
necessary to demonstrate conscious indifference under the first prong of the
Craddock test in circumstances similar to those in the case at bar. In that case,
Drewery Construction Company (“Drewery”) obtained a default judgment against
Fidelity and Guaranty Insurance Company (“Fidelity”). Id. at 573. After the default
judgment was rendered, Fidelity filed a motion for new trial based on Craddock
and attached four affidavits1 to the motion. Id. The trial court denied the motion for
new trial. Id. After coming to the conclusion that the four affidavits attached to
Fidelity’s motion were conclusory, the court of appeals affirmed the trial court’s
decision. Id. at 575. In support of its decision, the appellate court explained that
1 The four affidavits demonstrated the following: (1) that Fidelity’s registered agent had received the petition and citation; (2) the procedures by which Fidelity handled service papers; (3) that the procedures for handling service papers were not followed in the instant case; and (4) that Fidelity’s agent did not remember receiving the service papers. Fidelity, 186 S.W.3d at 573.
Appellant’s Brief - Page 14 of 23
21 there was “no affidavit from a person explaining how the citation was lost or where
in the chain of communication a breakdown occurred” and that “a court cannot
vacate a default judgment based only upon general allegations or conclusions.” Id.
The Supreme Court of Texas reversed the court of appeals’ decision. Id. at
576. In support of the reversal, the Court first disagreed that the four affidavits
were not “general or conclusory” because the affidavits Fidelity attached to its
Motion for New Trial “detail[ed] the procedures for handling service papers in
general and what was known about Drewery’s papers in particular.” Id. at 575.
Moreover, the Supreme Court disagreed with the court of appeals that, to meet the
first element of the Craddock test, a party must describe how the loss of a petition
occurred. See id. (“People often do not know where or how they lost something –
that is precisely why it remains ‘lost.’”). While this Court acknowledged that “a
conclusory statement that documents were ‘lost’ must generally be supported by
some explanation from the person most likely to have seen the efforts made to find
them,” the court reiterated that “[a]n excuse need not be a good one to suffice.” Id.
at 575–576 (emphasis added). In line with this reasoning, this Court found that the
uncontroverted affidavits Fidelity put forth demonstrated “neither intent nor
indifference” and that “the trial court was not at liberty to disregard [the
evidence].” Id. at 576.
Appellant’s Brief - Page 15 of 23
22 The Supreme Court’s decision in Fidelity demonstrates that the Trial Court
did not abuse its discretion in holding that Gattenby satisfied the first element of
the Craddock test.
The Trial Court in this case agreed that the above requirements were met
when examining the facts of this case. More specifically, the court found that the
failure to file an answer was a mere mistake (RR13).
The uncontroverted evidence demonstrates that Gattenby satisfied his
burden to demonstrate a lack of intent or conscious indifference. Consequently, the
Court should affirm the Trial Court’s finding that Gattenby satisfied the first
element of the Craddock test. Accordingly, this Court should find that the district
court did not abuse its discretion in holding that Gattenby satisfied the first element
of the Craddock test (RR13).
B. Gattenby Satisfied the Second Element of the Craddock Test
The second element of the Craddock test requires a defaulting party to
demonstrate a meritorious defense. Evans, 889 S.W.2d at 270. “Setting up a
meritorious defense does not require proof ‘in the accepted sense.’” Dolgencorp of
Tex., Inc. v. Lerma, 288 S.W.3d 922, 927–928 (Tex. 2009) (citing Ivy v. Carrell,
407 S.W.2d 212, 214 (Tex. 1966)).” Rather, a motion for default judgment will set
up a meritorious defense “if it alleges facts which in law would constitute a
Appellant’s Brief - Page 16 of 23
23 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.” Id.
Gattenby asserted facts that, if true, would negate TIB’s cause of action on
retrial (CR35). As noted above, in its petition, TIB alleged that it opened a credit
account on October 11, 2013 at the request of and for Defendant. TIB claimed that
Defendant used or authorized the use of the account. TIP also claimed to have
generated and sent monthly statements to Gattenby which contained itemizations
of transactions, charges, debits, credit and/or payments on the account. TIB
claimed that Defendant ceased making payment on or about April 12, 2014.
Gattenby clearly controverted these allegations. First, he stated that he never
had any financial or personal relationship with TIB. (CR35). TIB’s own evidence
only showed an account Gattenby had with Town North Bank, (CR 18), and they
neither alleged nor attempted to prove any relationship between TIB and Town
North Bank, or that TIB had acquired a claim to be derived from Town North
Bank. Gattenby also testified that he was not aware of the Town North Bank
account being transferred to TIB. (CR 35-6).
Standing, a necessary component of subject-matter jurisdiction, is a
constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). Standing cannot be
waived and can, therefore, be raised for the first time on appeal. Id. at 445-46.
Appellant’s Brief - Page 17 of 23
24 Only the party whose primary legal right has been breached may seek redress for
an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.--Dallas
2005, no pet.). Without a breach of a legal right belonging to that party, that party
has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex.
App.--Fort Worth 2001, pet. denied).
In order for TIB to have standing to sue to bring a cause of action for an
unpaid credit card account, it must prove that it owns the account at issue. Eaves v.
Unifund CCR Partners, 301 S.W.3d 402, 405 (Tex. App.--El Paso 2009, no pet.);
Jaramillo v. Portfolio Acquisitions, LLC, 2010 Tex. App. LEXIS 2219 (Tex. App.
– Houston [14th Dist.] 2010, no pet.); Moir v. Citibank (S. Dakota), N.A., 2010
Tex. App. LEXIS 4870 (Tex. App. – Dallas 2010, no pet.).
TIB’s counsel conceded at the hearing on Gattenby’s motion for new trial
that he had failed to allege or prove the relationship between TIB and Town North
Bank. (RR 9). TIB’s lack of standing is a meritorious defense that justifies
remanding this case.
In addition, Gattenby testified that he never owed the amount claimed by
Town North Bank of Lawrenceville, Georgia (CR35). Disputing the amount of
damages is sufficient to set up a meritorious defense under Craddock. In such
cases, the amount of damages would have to be remanded. Jaco v. Rivera, 278
Appellant’s Brief - Page 18 of 23
25 S.W.3d 867, 873 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Gardner v.
Jones, 570 S.W.2d 198, 201 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ).
Similarly, Robert Clark’s affidavit set up a meritorious defense to the
amount of attorney’s fees awarded. He stated, correctly, that the evidence
supporting the award of attorney’s fees were entirely conclusory. TIB’s fee
affidavit simply asserted an amount of fees it claimed to be reasonable for services
pre-judgment, post-judgment, on appeal to this Court and on appeal to the Supreme
Court, with no evidence of the time spent on any task or the time expected to be
spent on future tasks. (CR 19-20).
The Supreme Court of Texas has held that legally sufficient evidence
“includes, at a minimum, documentation of the services performed, who performed
them and at what hourly rate, when they were performed, and how much time the
work required.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762, 764 (Tex.2012);
see also Long v. Griffin, 442 S.W.3d 253 (Tex. 2014)(per curiam); see also City of
Laredo v. Montana, 414 SW3d 731, 736 (Tex. 2013); accord: Kinsel v. Lindsey,
526 S.W.3d 411(Tex. 2017). The proof must be sufficient to permit a court “to
perform a meaningful review of their fee application.” El Apple I at 764. This
Court has said that if contemporaneous time records are not available, the attorneys
involved should work to reconstruct them. Id. Generalities about tasks performed
provide insufficient information for the fact tinder to meaningfully review whether
Appellant’s Brief - Page 19 of 23
26 the tasks and hours were reasonable and necessary under the lodestar method. Id. at
763. In City of Laredo v. Montano, the Supreme Court likewise held that evidence
of fees was insufficient where the party failed to provide evidence of the time
devoted to specific tasks. Id., 414 S.W.3d 731,736-37 (Tex.2013); see also Long v.
Griffin, 442 S.W.3d at 255.
Under this standard, the testimony supporting the awards of legal fees to TIB
in this case is legally insufficient.
Thus, Gattenby has established meritorious defenses. These statements are
not merely conclusory allegations, but facts, supported by evidence, which
demonstrate Gattenby’s meritorious defense. See Boyes v. Morris Polich & Purdy,
LLP, 169 S.W.3d 448, 453–54 (Tex. App.–El Paso 2005, no pet.). Taken as true,
they would produce a different result on retrial of the case. Therefore, Gattenby has
satisfied the second element of Craddock, and this case should be remanded for
trial on the merits, or at least for a new trial on damages and attorney’s fees.
C. Gattenby Satisfied the Third Element of the Craddock Test
In order to satisfy the third element of the Craddock test, the defaulting party
must establish that granting a motion for new trial would not occasion a delay or
otherwise work an injury to the plaintiff. Evans, 889 S.W.2d at 268. Once it has
been alleged that granting a new trial will not harm the plaintiff, the burden of
going forward with proof of injury then shifts to the plaintiff. Cliff v. Huggins, 724
Appellant’s Brief - Page 20 of 23
27 S.W.2d 778, 779 (Tex. 1987); Angelo v. Champion Restaurant Equip. Co., 713
S.W.2d 96, 98 (Tex. 1986). Equitable principles are involved and the court should
handle the facts on a case by case basis. Id. Factors to consider in determining
whether delay or injury will occur are: (1) whether the party has offered to
reimburse the plaintiff for the costs involved in obtaining the default judgment; and
(2) whether the party is ready, willing, and able to go to trial. Evans, 889 S.W.2d at
270.
Gattenby alleged that a new trial will cause neither injury nor delay to TIB.
At that point, the burden was therefore shifted to TIB to demonstrate that a new
trial would have done it injury. See Cliff, 724 S.W.2d at 779; Angelo, 713 S.W.2d
at 98. TIB presented no evidence that a new trial would cause it to be injured.
Thus, TIB has failed in its burden to demonstrate injury. Moreover, Gattenby has
averred that he is ready to proceed to trial after discovery and willing to reimburse
TIB for all reasonable expenses incurred in obtaining the default judgment (CR32).
Consequently, Gattenby has satisfied the third and final element of Craddock, and
this Court should reverse and remand for a trial on the merits.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant Warren Gattenby
respectfully prays that the Court the Trial Court’s default judgment of December
19, 2017 be reversed and that the case be remanded to the trial court for trial. In
Appellant’s Brief - Page 21 of 23
28 addition, Appellant Warrant Gattenby requests all such other and further relief to
which he may justly be entitled.
Respectfully submitted,
_________________________ ROBERT M. CLARK State Bar No. 04298200 EDDLEMAN & CLARK 4627 North Central Expressway Knox Central Place, Suite 2000 Dallas, Texas 75205-4022 Phone 214.528.2400 Fax 214.528.2434 RMC@RobertMClark.net Counsel for Appellants
Certificate of Service I certify that a true copy of the above Appellant’s Brief was served through the electronic filing manager per the requirements of Rule 9.5 Texas Rules of Appellate Procedure on counsel for Appellee, R. Deloney at The DeLoney Law Group, 6440 N. Central Expressway, Suite 850, Dallas, TX 75206, Fax 214.573.7970, chris@deloneylawgroup.com on the 4th day of June, 2018.
___________________________ Robert M. Clark
Certificate of Compliance Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 5,436 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate of compliance). This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for indexes, footnotes and quotations which are in 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
_____________________________ Robert M. Clark
Appellant’s Brief - Page 22 of 23
29 Index Of Appendix Appendix No. 1: Default Judgment of December 19, 2017 .....................................24
Appendix No. 2: Warren Gattenby’s January 11, 2018 Motion for New Trial after Default Judgment .....................................................26
Appellant’s Brief - Page 23 of 23
30 • - CAUSE NO. DC-17-12078
Tffi-THE INDEPENDENT § BANKERSBANK § IN TIIE DISTRICT COURT Plaintiff, § § vs. § 193RD JUDICIAL DISTRICT § § WARREN GAITENBY § DALLAS COUNTY, TEXAS Defendant. §
DEFAULT JUDGMENT
Defendant, although duly cited to appear and answer herein, has failed to file an answer within the time allowed by law. The Court has considered the pleadings and records on file in this cause and the evidence and is of the opinion that judgment should be rendered for Plaintiff. It is accordingly ADJUDGED that TIB-THE INDEPENDENT BANKERSBANK, Plaintiff, recover from WARREN GATIENBY, Defendant, judgment for- I. $16,935.87 as the principal amowtt due; 2. $3,000.00 as reasonable and necessary attorney's fees; 3. Conditi~nal award of reasonable and necessary attorney's fees as follows: a. $1,500.00 for defending any attacks on the judgment prior to any appeal; b. $10,000.00 for defending each unsuccessful attack upon the judgment in the Texas Court of Appeals; c. $10,000.00 for defending each unsuccessful attack upon the judgment in the Texas Supreme Court; 4. all costs of court; and 5. post judgment interest at the rate of five percent per year on the total judgment from the date of judgment until paid.
It is ORDERED that Plaintiff shall have all writs of execution and other process necessary to enforce this judgment.
This judgment finally disposes of all parties and all claims and is appealable.
Default Judament Paaet 2l091TtB-THli INDEPENDENT BANKERSBANK va. WARREN GATillNBY
Appendix No. 1 31 11 SIGNED on _ ___::fd'-+--<.__.:1+1----X.J,.:...._..:.....11" __
APPROVED AS
By: --~-------------+------ Christopher R. DeLoney State Bar No. 24032126 chris@deloneylawgroup.com William R. DeLoney State Bar No. 00792455 bill@deloneylawgroup.com The DeLoney Law Group, PLLC 6440 N . Central Expressway, Ste. 850 Dallas, Texas 75206 214-741-7911 Fax: 214-573-7970 Attorney for Plaintiff
Default Judgment Page2 23091TIB-THE INDEPENDENT BANKBRSBANK vw. WARRBN OATI'SNBY
Appendix No. 1 32 FILED DALLAS COUNTY 1/11/2018 12:21 PM FELICIA PITRE DISTRICT CLERK
No. DC-17-12078 TIB-THE INDEPENDENT * In the District Court BANKERSBANK * * v. * 193rd Judicial District * WARREN GATTENBY * Dallas County, Texas
MOTION FOR NEW TRIAL AFTER DEFAULT JUDGMENT
This Motion for New Trial after a Default Judgment is brought by Warren
Gattenby, Defendant, who shows in support:
I. FACTS
On September 13, 2017, Plaintiff TIB-The Independent BankersBank [hereinafter
“TIB”] sued Warren Gattenby. On that date, it filed Plaintiff’s Original Petition with Requests
for Disclosure and Requests for Admissions. Defendant Gattenby had never had an account with
Plaintiff and the petition did not indicate that the claim was based upon an assignment.
On October 4, 2017, the Original Petition in this case was served on Defendant.
Fourteen days later, on Wednesday, October 18, 2017, Defendant Gattenby had an appointment
with attorney Robert M. Clark regarding defending this case. The meeting was held at Mr.
Clark’s law office at 4627 North Central Expressway, Dallas, Texas. Mr. Gattenby was quoted a
fee but did not retain Mr. Clark on that day. However, on the next day, Mr. Gattenby’s wife,
Jackie, dropped off the agreed $1500 retainer in cash to Mr. Clark’s wife, Kimberly Clark, at the
attorney’s home at 4306 Rawlins Street, Dallas, Texas as Mrs. Gattenby had been requested.
This is because Mr. Clark was in mediation on that day and was not at his office.
However, purely by mistake, a file was never opened and, therefore, an answer
was never filed on the answer date which occurred on October 30, 2017. This is because the
Motion for New Trial After a Default Judgment - Page 1 of 8 Appendix No. 2 33 only documents regarding this case in Clark’s possession were inadvertently paper clipped to the
papers in another file.
On December 18, 2017, Plaintiff filed a Motion for Entry of Default Judgment
which was internally inconsistent in that it and its attached November 13, 2017 affidavit of
Darlene Pence failed to connect Plaintiff to the alleged original lender, Town North Bank of
Lawrenceville, Georgia. Furthermore, the attorney’s fee affidavit was wholly conclusory. The
Court signed the proposed default judgment on December 19, 2017. Within three or four days,
Defendant Gattenby received notification from the court, and he notified Attorney Clark on
December 26, 2017. This Motion for New Trial after Default Judgment has been timely filed.
II. ARGUMENT
Defendant Gattenby’s failure to answer was not intentional, but was accidental as
described below. Gattenby brings this action by way of petition and motion pursuant to Texas
Rules of Civil Procedure 329(a) and asks this Court to grant a new trial.
Warren Gattenby has a meritorious defense to the cause of action alleged in this
case in that he never received a loan or any funds from Plaintiff and the attorney fees requested
are conclusory. The granting of a new trial would not injure Plaintiff. Justice will not be
properly served unless a new trial is granted.
Defendant attaches affidavit to this motion as Exhibit A to establish facts not
apparent from the record and incorporates them by reference.
III. MISTAKE OR ACCIDENT
When a defendant does not file an answer because of a mistake or an accident, the
court should set aside the default judgment and grant a new trial if the defendant can meet the
requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).
Craddock requires the defendant to do all of the following:
Motion for New Trial After a Default Judgment - Page 2 of 8 Appendix No. 2 34 a. Demonstrate that the failure to file an answer was not intentional or the result of conscious indifference, but was a mistake or an accident. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993); Craddock, 133 S.W.2d at 126. The mistake and inadvertence in this default judgment was by Defendant’s counsel. The file was never opened as the payment for the retainer was made at defense counsel’s home in cash.
b. Set up a meritorious defense. In re R.R., 209 S.W.3d at 114; Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966); Craddock, 133 S.W.2d at 126. Defendant must allege facts that constitute a defense to plaintiff’s cause of action and must support the allegations with affidavits or other evidence that set up, not prove, a prima facie defense. Estate of Pollack, 858 S.W.2d at 392; Ivy, 407 S.W.2d at 214. Defendant has never had any business or professional relationship with Plaintiff, nor has he made purchases with Plaintiff’s card. The filings contain no indication of an assignment and, therefore, is internally inconsistent.
c. Demonstrate that granting a new trial will not cause delay or otherwise injure plaintiff. In re R.R., 209 S.W.3d at 114-15; Craddock, 133 S.W.2d at 126. In this case, no witnesses are unavailable or was there any loss of evidence.
The court should grant a new trial because defendant’s failure to answer was not
intentional, but was accidental. Specifically, there was a clerical mistake and this inadvertence
in the defense counsel’s office in that the file was misplaced causing the answer to not be timely
filed. This was an accident and not intentional. Defendant Gattenby is, thereby, wholly free of
responsibility or knowledge that an answer had not been timely filed. See Lowe v. Lowe, 971
SW2d 720, 723 (Tex. App. – Houston [14th Dist.] 1998, pet. denied); Hahn v. Whiting
Petroleum Corp., 171 SW3d 307, 310 (Tex. App. – Corpus Christi, 2005, no pet.).
The court should grant a new trial because defendant has a meritorious defense.
Specifically, the Defendant does not owe the monies being sued for. Defendant has never had a
financial relationship with Plaintiff and there is no indication in the filings of any assignment.
The court should grant a new trial because a new trial will not cause delay or
prejudice Plaintiff or otherwise injure plaintiff. There is no loss of witnesses or other valuable
evidence and very little time has passed since the date of judgment. Defendant is ready for trial
Motion for New Trial After a Default Judgment - Page 3 of 8 Appendix No. 2 35 and willing to reimburse plaintiff for all reasonable expenses incurred in obtaining the default
judgment.
PRAYER
For these reasons, and in the interest of justice and fairness, Defendant asks the
court to set aside the default judgment signed on December 19, 2017, to strike the deemed
admissions that were contained in the Plaintiff’s Original Petition to allow the Defendant to
respond to the requests, and to grant a new trial.
EDDLEMAN & CLARK 4627 North Central Expressway Knox Central Place, Suite 2000 Dallas, Texas 75205-4022 Phone 214.528.2400 Fax 214.528.2434 RMC@RobertMClark.net
______________________________ ROBERT M. CLARK State Bar No. 04298200 Attorney for Defendant
Certificate of Service
I certify that a true copy of the above was served on counsel for Plaintiff, Christopher R. Deloney at The DeLoney Law Group, 6440 N. Central Expressway, Suite 850, Dallas, TX 75206, Fax 214.573.7970 in accordance with Rule 21a of the Texas Rules of Civil Procedure on the 11th day of January, 2018.
___________________________________ Robert M. Clark
Motion for New Trial After a Default Judgment - Page 4 of 8 Appendix No. 2 36 STATE OF TEXAS * * AFFIDAVIT COUNTY OF DALLAS *
BEFORE ME, the undersigned authority, on this day personally appeared
Robert M. Clark, known to me to be the person whose signature is set forth herein, and who
being by me duly sworn, on oath states:
“My name is Robert M. Clark. I am over eighteen (18) years of age. I am a
resident of Dallas County, Texas and am fully competent to make this affidavit.
I have read the foregoing Motion for New Trial after a Default Judgment, and
it is true and correct. Defendant’s failure to answer was not intentional, but was accidental.
Specifically, there was a clerical mistake in my office and in my home in that the file was
misplaced causing the answer to not be timely filed as described below. The facts set forth
therein are within my personal knowledge and the same are true and correct and are also based
upon the filings in this case.
On September 13, 2017, Plaintiff TIB-The Independent BankersBank [hereinafter
“TIB”] sued Warren Gattenby. On that date, it filed Plaintiff’s Original Petition with Requests
for Disclosure and Requests for Admissions. Defendant Gattenby had never had an account with
Plaintiff and the petition did not indicate that the claim was based upon an assignment.
On October 4, 2017, the Original Petition in this case was served on Defendant.
Fourteen days later, on Wednesday, October 18, 2017, Defendant Gattenby attended an
appointment with attorney Robert M. Clark regarding defending this case. The meeting was held
at Mr. Clark’s law office at 4627 North Central Expressway, Dallas, Texas. Mr. Gattenby was
quoted a fee but did not retain Mr. Clark on that day. However, on the next day, Mr. Gattenby’s
wife, Jackie, dropped off the agreed $1500 retainer in cash to Mr. Clark’s wife, Kimberly Clark,
Motion for New Trial After a Default Judgment - Page 5 of 8 Appendix No. 2 37 Exhibit A at the attorney’s home at 4306 Rawlins Street, Dallas, Texas as Mrs. Gattenby had been
requested. This is because Mr. Clark was in mediation on that day and was not at his office.
However, purely by mistake, a file was never opened and, therefore, an answer
was never filed on the answer date which occurred on October 30, 2017. This is because the
only documents regarding this case in Clark’s possession were inadvertently paper clipped to the
On December 18, 2017, Plaintiff filed a Motion for Entry of Default Judgment
which itself was internally inconsistent in that it and its attached November 13, 2017 affidavit of
Darlene Pence failed to connect Plaintiff to the alleged original lender, Town North Bank of
Lawrenceville, Georgia. Furthermore, the attorney’s fee affidavit was wholly conclusory. The
Court signed the proposed default judgment on December 19, 2017. Within three or four days,
Defendant Gattenby received notification from the court, and he notified Attorney Clark on
December 26, 2017. This Motion for New Trial after Default Judgment has been timely filed.
Warren Gattenby has a meritorious defense to the cause of action alleged in this
case in that he never received a loan or any funds from Plaintiff, had no relationship with TIB,
there is no evidence of any assignment of the claim to TIB. Furthermore, the attorney fees
requested are conclusory. The court should grant a new trial because a new trial will not cause
delay or prejudice Plaintiff or otherwise injure Plaintiff. There is no loss of witnesses or other
valuable evidence and very little time has passed since the date of judgment. Defendant is ready
for trial and willing to reimburse Plaintiff for all reasonable expenses incurred in obtaining the
default judgment. Justice will not be properly served unless a new trial is granted.”
Further, Affiant sayeth not.
Motion for New Trial After a Default Judgment - Page 6 of 8 Appendix No. 2 Exhibit A 38 ________________________ Robert M. Clark
SUBSCRIBED and SWORN to before me, the undersigned authority, on this the 2nd day of January, 2018, to certify which witness my hand and seal of office.
_____________________________ NOTARY PUBLIC in and for the State of Texas
Motion for New Trial After a Default Judgment - Page 7 of 8 Appendix Exhibit A No. 2 39 STATE OF TEXAS * * AFFIDAVIT OF KIMBERLY K. CLARK COUNTY OF DALLAS *
BEFORE ME, the undersigned authority, on this day personally appeared
Kimberly K. Clark, known to me to be the person whose signature is set forth herein, and who
“My name is Kimberly K. Clark. I am over eighteen (18) years of age. I am a
resident of Dallas County, Texas and am fully competent to make this affidavit.
I have read the foregoing Motion for New Trial after a Default Judgment and
the facts therein are correct. Since Robert M. Clark was in mediation and unavailable, on
Thursday, October 19, 2017, Mr. Gattenby’s wife, Jackie, dropped off a cash retainer of $1500
for Robert M. Clark at our home at 4306 Rawlins Street, Dallas, Texas. I received the payment
and provided a receipt to Jackie Gattenby. However, due to a clerical mistake by myself, the
case papers were accidentally paper clipped to a different file and the answer was not calendared
or filed. This was no fault of Warren Gattenby but an accident in our office. The facts set forth
herein are within my personal knowledge and the same are true and correct.
________________________ Kimberly K. Clark
SUBSCRIBED and SWORN to before me, the undersigned authority, on this the 2nd day of January, 2018, to certify which witness my hand and seal of office.
_____________________________ NOTARY PUBLIC in and for the State of Texas
Motion for New Trial After a Default Judgment - Page 8 of 8 Appendix No. 2 40 Exhibit B STATE OF TEXAS * * AFFIDAVIT OF WARREN GATTENBY COUNTY OF DALLAS *
BEFORE ME, the undersigned authority, on this day personally appeared
Warren Gattenby, known to me to be the person whose signature is set forth herein, and who
"My name is Warren Gattenby. I am over eighteen (18) years of age. I am a
resident of Dallas County, Texas and am fully competent to make this affidavit.
On October 4, 2017, I was served with Plaintiff’s Original Petition with Requests
for Disclosure and Requests for Admission. The petition which I was served with was from a
Plaintiff TIB-The Independent BankersBank [hereinafter TIB], who I had never had any
financial or personal relationship. The petition did not indicate that the claim was based upon an
assignment, although the attached statement indicated that the claimed debt was connected with a
Town North Bank of Lawrenceville, Georgia. On October 18, 2017, I had an appointment with
attorney Robert M. Clark at his office about defending this case. I was quoted a retainer fee of
$1500, which I caused to be delivered by my wife Jackie to Mr. Clark’s home the next day.
A little over two months later, I received from the 193rd Judicial District Court
Clerk a notice of judgment in this case. Within a few days, I provided the notice to Mr. Clark.
I never had any financial or any other type of relationship with TIB and never
owed the amount which might be claimed to be derived from Town North Bank of
Lawrenceville, Georgia. There has been little or no delay in this case which would otherwise
injure Plaintiff if the default is set aside and a new trial on the merits is granted.”
Affidavit of Warren Gattenby - Page 1 of 2
Appendix No. 2 41 SUBSCRIBED and SWORN to before me, the undersigned authority, on this the 10th _ day of January, 2018, to certify which witness my hand and se f offi e.
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Affidavit of Warren Gattenby -Page 2 of2
Appendix No. 2 42