 Reverse and Remand in part; Affirm in part; Opinion Filed February 19 2013.




                                                                     In The
                                         (!r’uri ul i\ppia1i
                                 FTttI! DTEtrtrt f Irxa at                                    fta
                                                        No. 05-1l-00201-CV


       TACTICAL AIR DEFENSE SERVICES, INC. AND GARY FEARS, Appellants

                                                                        V.

                                        ChARLES C. SEAROCK, Appellee


                              On Appeal from the 397th Judicial District Court
                                          Grayson County, Texas
                                   Trial Court Cause No. 07-0322-397


                                                             OPINION
                                Beibre Justices Moseley, FitzGerald, and Richter
                                                                         t
                                          Opinion By Justice Moseley

        This is an appeal from the denial of a motion tbr                         new   trial following a post-answer default

judgment. Charles Searock sued several defendants, including Tactical Air Defense Services, Inc.

and Gary Fears, for breach of his employment contract. fraud, conspiracy, and other causes of action

arising out of his employment with another company. Tactical and Fears filed an answer, but after

their attorney withdrew as their counsel, they failed to appear at trial. The trial court rendered a post-

answer default judgment against them. Tactical and Fears moved for a new trial asserting they did

not receive notice of the trial setting. The trial court denied the motion.




    The Honorable Martin E Richter. Retired   Justice, sitting   by assignment.
        We conclude appellants’ affidavits show they did not receive notice of the trial setting and

that the trial court abused its discretion by denying the motion for new trial. We reverse the trial

court’s judgment against Tactical and Fears and remand Searock’s causes of action againct those

parties for further proceedings. In all other respects, we affirm the trial court’s judgment

                                           BACKGROUND

        Searock tiled this lawsuit in 2007. Tactical and Fears answered and participated in discovery

in the case. They filed a no-evidence motion for summaryjudgment in 2008, which was denied by

the trial court. In 2009, Searock’s attorney withdrew as his counsel. Searock, representing himself

requested a trial setting and the trial court scheduled a status conference for December 2, 2009.

According to the docket sheet, Gary Corley, the attorney representing Tactical and Fears, informed

the trial court at the status conference that he would be filing a motion to withdraw. The docket

sheet indicates the case was set for ajuiy trial on October 25,2010, at the status conference.

       Corley filed his motion to withdraw from representing Tactical and Fears on December 7,

2009. The ground stated in the motion was that Corley was unable to effectively communicate with

his clients. The motion states that the case was set for trial on October 25, 2010, and that a copy of

the motion “has been delivered to Defendants at the following addresses,” listing Tactical through

its registered agent at an address in Delaware and Fears at an e-mail address. The motion contains

a notice to the defendants of their right to object to the motion. The certificate of service on the

motion, signed by Corley, states: “The undersigned hereby certifies that a true and correct copy of

the foregoing Motion to Withdraw was served on the following this the 1st day ofDecember, 2009

in the manner described.” Below this statement, Tactical is listed with the address ofthe registered

agent in Delaware and Fears is listed with his e-mail address.

       Tactical and Fears did not ifie a response to the motion to withdraw and did not appear at the



                                                —2—
hearing on the motion. The trial court signed an order granting the motion to                                           ithdraw on January

 I 2. .20 I 0. l’hc order stated the trial setting on October 25. 2010, and ordered that all notices in the

case be served on Tactical and Fears at the addresses shown in the motion to withdraw, There is no

certificate of scr ice on the order.

             When hictical and Fears tailed to appear at trial on October 25. 2010, the trial court heard

evidence and rendered a post—answer default judgment against them. Within thirty days of the

judgment, Tactical and Fears filed a motion for new trial supported by their affidavits arguing they

did not received notice of the trial setting and they met the requirements for setting aside a default

judgment on a motion for new trial.
                             2 Searock filed a response to the motion for new trial raising

several objections to the atliclavits. Searock also tiled an aflidavit from (‘orley who stated he sent

a copy of the order granting the motion to withdraw to Tactical by first—class mail to its registered

agent and to Fears at his e-mail address. Corley’s affidavit, however, stated the case had been set

for trial on August 25, 2010 (not October 25, 2010) and this was the date included in the order he

sent to his former clients. (The copy of the order attached to the affidavit contained the correct trial

setting.)

             The trial court heard arguments from counsel on the motion for new trial, but no evidence

was offered at the hearing. The trial court then denied the motion for new trial in a written order,

sustained most of Searock’s objections to Tactical’s and Fears’s affidavits, and found Fears was not

credible based in part on his conduct in different lawsuit before the trial court. Tactical and Fears

filed a notice of’ appeal from the final judgment and the denial of their motion for new trial.
                                                                                         3




       The   motion also attacked the sufflciencv of the evidence to support the clethult judgment.

      rhe notice of appeal was also flied on behalf of Jamte (ioldstctn. However, Goldstein later Pled   a motion to dismiss   his appeaL By separate
order, we iSrant the motion to dismiss.
                                                          SI:I)Rp OI RFviF:w


            We review a trial court’s denial ofa motion for new trial following a postanswer                                           default for

 abuse of discretion. In             iv   R.R., 209 S.W.3d 112, 1 14— 15 (Tex. 2006); Dir, State Ernj,i,s’. f/brkers

 (‘onip.   Div     t’.   Evans, X89 S .W2d 266. 268 (Tex. 1994). A delault judgment should be set aside and

 a new trial exanted it’( I) the failure to answer or appear was not intentional or the result of conscious

indifference but was due to a mistake or accident, (2) the defendant sets up a meritorious defense,

and (3) the motion is hled at such time that granting a new trial would not result in delay or

other isc injury thy plaintiff                    S      C h/f       [f,u,ns 724 S W 2(1 778 779 ( lex                             I 987) (citing

Craddock v Sunshine Bus Lines, 1 33 S.W.2d 124, 126 (1939)).

            “The defendant’s burden as to the first C’raddock element has been satisfied when the factual

assertions,      if      true, negate intentional or consciously indifferent conduct by the defendant and the

factual assertions are not controverted by the plaintilt.                           ...   In determining if the defendant’s factual

assertions are controverted, the court looks to all the evidence in the record.” In iv R.R., 209 S,W.3d

at 115 (citing See Fid. & Guac Ins. Co. v Divwerv Consti: Co., inc.. 186 S.W.3d 571, 576 (Tex.

2006); Evans, 889 S.W.2d at 269).

           When the first element is established by proof that the defendant was not given notice of a

trial setting, “we have dispensed with the second element for constitutional reasons.” Mathis v.

Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (per curiam); Mosser v Piano Three Venture, 893

S.W.2d 8, 12—13 (Tex. App.—Dallas 1994, no writ) (concluding second and third Craddock

elements do not apply if defendant did not receive notice of setting).
                                                             4 A defendant who has made


       rhc supreme court has not decided whether the third clement must he dispensed with in these types of cases: however, appellants’ motion
       4
asserted that a new trial would net injure Searock and nothing in the record establishes the contrary See .ljoihis. 166 S.W3d at 744: see also
Dolgence,p otix., hs— Leioia, 288 S.W3d 922. 929 (Tex. 2009) (per curiarn) (third element ofCruddock test protects a plaintifYagainst undue
dela or inju that oould result in disadvantage s\hen presenting the merits of the case at a new trial. “such as a loss of svitnesses or other valuable
evidence,” quoting Eva,is, 889 5.W.2d at 270); Cliff. 724 5.W.2d at 779-80 (requiring new trial as ‘there is nothing in the record to show that a new
trial will work an injury to [the plaintiff]”).
an appearance in a case is entitled to notice ofthe trial setting as a matter ofdue process. Set’ Peralta

v. Heights Med. Ctr, Inc., 485 U.S. 80, 84—85 (1988); Lopez v. Lopez, 757 S.W.2d 721,723 (Tex.

1988).

                                                               ANALYsIs

         Appellants’ motion for new trial and their affidavits assert they did not receive notice ofthe

trial setting. Searock makes three arguments for how the trial cowl could have found appellants had

notice of the trial setting: (1) a presumption of service under rule 21a based on the certificate of

service in Corley’s motion to withdraw: (2) imputed notice because Corley was still counsel for

appellants when the case was set for trial at the status conference; and (3) appellants’ affidavits were

controverted by affidavits filed by Searock and the trial court correctly resolved the conflicts as the

finder of fact.

A. Presumption of Service

         Searock relies on the presumption ofservice under rule 21a and a general presumption that

a trial court only hears a case after proper notice to the parties. Searock contends that appellants are

presumed to have received notice under rule 2la because the motion to withdraw contained a

certificate of service.
               5 See TEx. R. Civ. P.21 a. it is true that “noticeproperl.v sent pursuant to Rule

21a raises a presumption that notice was received.” Mathis, 166 S.W.3d at 745 (emphasis added).

But this presumption vanishes if the opposing party offers proof of non-receipt. See Stmbel v.

Marlow, 341 S.W.3d 470,476 (Tex. App.—Dallas 2011, no pet) (citing C4(J 724 S.W.2d at 780).

“[W]hen that presumption is challenged, it mustbe proved according to the rule.” IS (citing Mathic,

166 S.W.3d at 745). The sender may rejoin by presenting other evidence of delivery, but if the

sender relies on office routine to support an inference of receipt, there must be corroborating

   Tlie motion io withdraw is the only documcnt relied ones a basis tbr notice that contains a cutificate of scrvioe.
   5




                                                                   -5-
 evidence, hi.

            Here. the face ot the motion to withdraw and its certificate ol service indicates the motion

was not served by any of the authorized methods listed in rule 2 Ia. Regular mail and email are not

 authorized means of service under the rule. See Ti:x. R. Civ. P. 21 a.                                            Because the motion to

withdraw and the certificate ot service show that the document was not “properly sent” in

compliance with rule 21 a, no presumption of receipt arises from the mere existence ofa certificate.

See id.
    6 Accordingly, the burden fell to Searock to prove service of the motion, including that it was

received by appellants. See Strobe!, 341 S.W.3d at 476 (receipt is an element of service); Pavton

v. ishton, 29 S.\V.3d 896, 898 (Tex. App. -Amarillo 2000, no pet.) (“implicit in the concept of

service is the need for the party upon whom an item is served to actually receive it”).

            In addition, Searock relies on a general presumption of notice of the trial setting when a

judgment is rendered. In the lower court opinion in Muthis v Lockwood, this Court stated, “The law

presumes that a trial court hears a case only after proper notice to the parties.” Mathis v Lockwood,

 132 S.W.3d 629, 631—32 (Tex. App.—Dalias 2004), rev’d, 166 S.W.3d 743 (Tex. 2005). The

supreme court disagreed and concluded this Court erred by indulging such a presumption. Mathis.

166 S.W.3d at 744—45 (“We disagree that there were any such presumptions on the facts presented

here.... {T]he court of appeals was incorrect in indulging a presumption that Mathis received the

notice Lockwood’s counsel sent.”). We follow the supreme court’s ruling and conclude that no such

presumption arose under these facts. Clearly, the motion for new trial supported by affidavits

contested receipt of notice of the trial setting. Under these circumstances, any presumption was




      ‘Searock contends that appellants’ affidavits did not address whether they received the motion to withdraw. But appellants denied receiving
any notice of the tnal setting. Therefore. it is immaterial whether appellants affidavits specifically mentioned the motion to withdraw. Because no
presumption of receipt arose from rule 21a. the burden fell on Seareek to prove receipt ofnotiee of the trial Setting. Nothing in the record indicates
that appellants received the motion to withdraw.




                                                                       —6—
7 Id.
rebutted.

B. Imputed Notice Through Counsel

            Searock argues that notice was imputed to appellants when Corley, their attorney at the time,

received notice of the trial setting. The record indicates that Corley informed the trial court at the

status conference that he would he moving to withdraw. The case was set for trial at the same

conference.

            The attorneyclient relationship is one of principal and agent. See Gavenda v. Strata Energy,

Inc., 705 S.W.2d 690, 693 (Tex. 1986). However, “[w]here the agent abandons his office before

conclusion of the proceedings, any knowledge possessed by the agent cannot be imputed to the

principal.” Langdaie v Villamii, 813 S.W.2d 187, 189 (Tex. App.—Houston [14th Dist.] 1991, no

writ). See Lynch v McKee. 214 S.W. 484, 485 (Tex. Civ. App.—Dal1as 1919, writ dism’d w.o.j.)

(“In such cases, that is, where the agent abandons his agency before concluding the matter

undertaken and it is consummated through the agency of another, his knowledge, as we understand

the rule, is not to be imputed to the principal.”).

            In seeking to withdraw from representing his clients, Corley did not comply with the

requirements of rule 10. See Tux. R. Civ. p.                          io.   Rule 10 requires a motion to withdraw as counsel

to state, among other things, whether the client consents to the motion and to state the client’s last

known address. Id. That rule also requires an attorney seeking to withdraw from representing his

clients to give them notice either in person or by mail at their last known address by both certified

and regular firstelass mail. Id. Corley’s motion to withdraw does not state whether the clients


       similarly, in this direct attack on the default judgment. any presumption of notice arising from a recital of notice in the judgment was rebutted.
       7
SeeP Bosco & Sons Contracting Co. e Con/e Lot, iVichols Machinery Co., 629 5.W.2d 142. 143 (Tex. App—Dallas 1982, writ ref’d n.r.c.)
(presumption of notice arising from recital in dehiull judgment was rebutted by evidence defendant’s counsel did not receive postcard notice of the
trial setting; burden shifted to plaintiff to show defendant had actual notice of the trial setting); Lease Fin. Group, LLC. n Ghilders, 310 5.W.3d
120, 125 (Tcx. App—Fort Worth 2010, no pet.): Oshorn v. Oshorn, 961 S,W.2d 408, 411 (Tex. App—Houston [1st Dist.i 1997. pet. denied) (“A
recitation of due notice of the trial setting in the judgment constitutes ,some, but not conclusive, evidence that proper notice was given.”).
consented to his withdrawal,      It does not indicate that the addresses listed are the last known

addresses fbr appellants, and for Fears the only address listed is an e-mail address, not a physical

address. Nor does the motion indicate it was delivered in person or by both certi lied and regular

first—class mail.

        These fiulings are significant in the context of determining whethernotice should be imputed

to Corlev’s lbrmer clients. When a statute or court rule provides the method by which notice shall

be given in a particular instance, the notice provision must be followed with reasonable strictness.

John v State, 826 S.W.2d 138, 141 n.4 (Rx. 1992); IV!isiuin v Mis/urn, 902 S.W.2d 195, 197 (Tex.

App.--- Eastland 1995. writ denied). “The rules governing withdrawal contain provisions which arc

obviously placed there to protect the client’s interest.” Moss v. Malone, 880 S.W.2d 45, 50 (Tex.

App.    Tyler 1994, writ denied) (op. on reh’g). Adequate notice is not a mere formality: “The failure

to 2ive adequate notice violates the most rudimentary demands of due process of law.      Mosser, 93

S.W.2d at 12 (citing Perulta, 485 U.S. at 84). By failing to comply with the requirements of rule 10

and its provisions designed to ensure clients are notified when their attorney withdraws, Corley

deprived appellants of valuable due process rights. The record does not indicate (‘orley took steps

to ensure so far as possible that the clients were notified of his withdrawal and of the upcoming trial

setting. That he had some unexplained difficulty communicating with his clients does not excuse

his failure to comply with the straightforward requirements of rule 10.

       While Corley was permitted to withdraw several months before trial, that is of no moment

if his former clients never received actual notice of that fact. And to the extent Searock argues

appellants had an independent duty to investigate whether their attorney was handling the case, the

supreme court’s observation in Mathis is pertinent. The court stated:

       the court of appeals held that litigants have a duty “to keep the court and parties
            apprised ol their correct and current address.’’     But even assuming there is such
                                                                                   .




            a duty, unless noncompliance was intentional rather than a mistake, due process
            requires some lesser sanction than trial without notice or an opportunity to he heard.

:1 lath/s. 166 S.W.3d at 746. Assuming appellants had a duty to investigate whether (‘orlev continued

to represent their interests and breached that duty, due process requires a lesser sanction than trial

without notice or an opportunity to be heard. Under the circumstances of this case and considering

the importance of preserving the client’s right to due process when an                                            attorney      withdraws, we

conclude that Corley’s knowledge of the trial setting cannot be imputed to his clients.
                                                                               5 See Id,

Lynch, 214 S,W. at 485 (agent’s knowledge is not imputed to principal where agent abandons his

agency);      Moss, 880 S.W.2d at 50.

C. Affidavits and Evidentiary Hearing

            Searock’s last argument is that the affidavits he filed in response to the motion for new trial

controverted appellants’ affidavits and the trial court had the discretion to resolve the conflicts in the

a ftidav its.

           Tactical filed the affidavit of its director, Michael Cariello. in support of its motion for new

trial. Cariello stated that Tactical did not receive notice of the trial setting either from Corley or from

its former registered agent. Cariello stated, “[Factical] did not receive the Order of the Court in this

case granting the motion of attorney Gary Corley to withdraw, and which also set the case for trial.

[Tactical] did not receive the trial setting order/notice either from attorney Gary Corley, from a

registered agent, or otherwise.” Cariello also stated, “If [Tactical] had received such Order or

otherwise received such notice, [Tactical] would have appeared at trial to contest the allegations of


      1n an unpublished opinion in a restricted appeal. we said that notice ofa trial setting received by an attorne before she moved to withdraw
      5
was imputed to her client. See Russell e Russell. 05-09-01674-CV. 1996 WL 732407. at 2 Ocx. App. -Dallas Nov. 26. 1996. no writ) not
designated for publication). Russell is distinguishable because in a restricted appeal. error muSt be Paund on the face ofthe record. See TEX. R. APi’.
P. 30. See also D,eueui. 186 S.W.Sd at 573 (cxpianing ihat cases concerning restricted appeals do not apply to appeals from motions for ness trial
because of differences in procedures between those types of cases). Furthermore. Russell san unpublished opinion issued prior to 2003 and has no
prccedcntial value See FFx. R Ar p P. 47.7(h).




                                                                        —9—
Plaintiff Scarock in this case”

            Fears stated in his affidavit that he did not receive a copy of the order granting the withdrawal

until afterthe defitult judgment and that he did not receive an e-mail from Corley containing the

order ofwithdrawal. He stated, “The case had been set for trial on October 25, 2010, this setting was

without my knowledge, further after the matter was set 1 never received any actual or legal notice

of the trial date,”
             9

            In response to the motion for new trial, Searock filed the affidavits of Corley and an attorney

who represented other defendants in the trial court. Corley’s affidavit does not dispute Tactical’s

affidavit evidence that it did not receive notice. Corley merely explained that he sent the order by

mail to Tactical’s registered agent. Evidence that notice was sent does not controvert evidence that

notice was not received. Muthis, 166 S.W.3d at 745 (“Testimony by Lockwood’s counsel that notice

was sent (lid not contradict Mathis’s testimony that notice was never received.”). Thus, Searock did

not controvert Tactical’s evidence of lack of notice.

           Searock argues Corley’s affidavit controverted Fears’s affidavit as to whether Fears received

the e-mail attaching the order granting the motion to withdraw.’° Corley stated in his affidavit that,

“All of these e-mail addresses where I sent the Order containing the trial setting were received by

all of the recipients, as shown by my own e-mail system.” Corley does not state the factual basis for

this conclusion other than the vague reference to his e-mail system. He does not provide any facts

about how that system reported the e-mail had been received by the recipients as opposed to merely



      Searock did not object to the portions of the affidavits quoted in the text. The trial court granted several of Searock’s objections to other
      9
portions of Cancilo’s and Fears’s affidavits. For example, the trial court sustained objections that Fears’s statements he intended to defend this
lawsuit and he ‘had no knowledge of the trial date” were conclusory, lacked foundation, and hearsay. We express no opinion on the merit of these
objections or the trial court’s ruling because the unobjected-to portions of the affidavits are sufficient to deny receipt of notice.

        >The affidavit of the attorney for the other defendants attached a copy of an e-mail he received from Corley containing the order granting the
        1
motion to withdraw. This evidence does not controvert Fears’s affidavit stating he did not receive the c-mail and order. See Mathis, 166 5.W.3d
at 745.




                                                                       —10—
being sent from his system. The sender may challenge evidence of non-receipt, “but if the sender

relies on office routine to support an inference of receipt. there must be corroborating evidcncc.’

Strobe!. 341 S.W.3d at 476. (‘orley presented no evidence to corroborate the statement that the c

mail was received, such as documentation analogous to a courier receipt. fax transmittal report. or

certified mail return receipt.

        However, assuming Corley’s conclusory statement was sufficient to controvert Fears’s

statement ofnon-receipt, the conflict could not be resolved without an evidentiary hearing. A trial

court generally may not resolve disputed fact issues regarding intent or conscious indifference on

affidavits alone.   Estate   of Pollack v. McMurrçy, 858 S.W.2d 388, 292 (Tex. 1993) (“contested

issues are ordinarily decided after a hearing at which witnesses present sworn testimony in person

or by deposition rather than by affidavit”). The supreme court cited one of our opinions in support

ofits ruling. Id. (citing Healy v. Hick Bldg. vs., Ina, 560 S.W.2d 713,721 (Tex. Civ. App.— Dallas

1977. writ refd n.r.e.) (op. on reh’g)). In Healy, we held:

       “We hold, therefore, under these circumstances, that a court cannot make findings of
       fact solely from the record on file without hearing evidence and findings so made are
       without effect. We also hold that in such a situation, the court is bound to accept as
       true the affidavits of the movant unless his opponent requests an evidentiary
       hearing.”

Healy, 560 S.W.2d at 721; see also Averift v. Bruton Paint & Floor Ca, 773 S.W.2d 574,576 (Ta.

App.—Dallas 1989, no writ) C’On a motion for new trial, the trial court is bound to accept as true

the affidavits of the movant, unless the opponent requests an evidentiary hearing.”).

       In Averiti, notice ofthe hearing was sent by certified mail to the defendant’s address, but his

verified motion for new trial stated the notice was received by his father and not given to him until

after the default judgment. Abefltt, 773 S.W.2d at 576. The plaintiffdid not request an evidentiary

hearing on the motion or otherwise attempt to controvert the sworn denial of receipt of notice. Id.



                                                —11—
at 575. Therefore, the trial court abused its discretion by denying the motion for new trial. Id; see

also Dallas Heating Co. v Pardee, 561 S,W.2d 16, 20 (fex. Civ, App.—Dallas 1977, writ ref’d

n.r.c.). Although these cases dealt with the intent or conscious indifference element of the Craddock

standard, we think they apply equally to proof of whether the defendant received notice of the trial

setting.

            Here, Searock offered no evidence at the hearing to controvert that Tactical did not receive

notice of the trial setting. Nor did Searock offer evidence beyond the conclusory statement in

Corley’s affidavit to show that Fears received notice by e-mail. Thus, this case is similar to Healy

where we said:

           A court is, howevei justified in determining disputed questions of fact with respect
           to the “conscious indifference” standard. Howe vet; we know o/no authority/or a
           trial court to resolve disputed flict issues without hearing evidence. Even though
           facts contained in the Healys’ affidavits were disputed by Wick’s affidavit as to
           whether the Healys showed a lack of conscious indifference to the suit, no
           evidentiary hearing on these disputed issues was requested nor had.

flealy, 560 S.W.2d at 721 (emphasis added). Thus, even if Tactical’s and Fears’s affidavits were

controverted about whether they received notice, no evidentiary hearing was requested and the trial

court abused its discretion by resolving factual disputes on affidavits alone. See Pollock, 858 S.W.2d

at 292; Averitt, 773 S.W.2d at 576; Healy, 560 S.W.2d at ?
                                                         l.
                                                         2


           The trial court’s findings in its order denying the motion for new trial make clear that it did

not credit Fears’s affidavit and credited Corley’s affidavit. However, disbelieving evidence is not

the same as proof of the contrary: “Even if the trial judge disbelieved Mathis s testimony, that would             ‘




       5earock relies on our opinion in Hanners e State Bar o/Iiwas, 860 5.W,2d 903 (Tex. App——Dallas 1993. no writ) to argue that the trial
       t
court acts as a fact finder at a hearing on a motion for new trial. See id. at 908. However, in Hanners there was an evidentiary hearing with
conflicting testimony presented regarding notice. Id. at 907. Thus, the trial court did not abuse its discretion by deciding the issue. Here, although
affidavits were submitted by opposing parties, 5earock did not request an evidentiary hearing on the issue of notice. Thus, the trial court was not
authorized to resolve disputed fact issues as to intent or conscious indifference on affidavits alone. See Pollock, 858 5.W.2d at 292; Averilt, 773
5.W,2d at 576: fIeaIr, 560 5.W.2d at 721,
 not provide affirmative evidence that service occurred. i1
                                                          athis, 166 S.W.3d at 745 (citing                                                         BoNe


 (   np. v.    CoI1c!Inu’IN       Unio,i     o/   US. Inc.. 466 U.S. 45, 5 12 (I 044) (“When the testimony of a

 witness is not believed, the trier of fact may simply disregard it. Normally the discredited testimony

 is not considered a sufficient basis for drawing a contrary conclusion.’)). And if the trial court could

 resolve the conflicting atfdavits and accept Corlev’s affidavit over appellants’ affidavits,                                                it   \vOUld

be an abuse of discretion to find that Corley gave them                                notice     of the October 25. 2010 trial setting

when his affidavit states the trial setting was August 25, 2010.

                                                                  CONCLUSION

            The appellants’ motion for new trial and affidavits assert facts indicating they did not receive

notice of the trial setting. Searock attempted to controvert some of those facts, but failed to request

an evidentiary heanng to resolve the conflicting affidavits. We conclude the trial court abused its

discretion by denying the motion for new trial. Accordingly, we sustain appellants’ first issue.’
                                                                                          2

            We reverse the trial court’s judgment against Tactical and Fears and remand that portion of

the case for Iuirther proceedings. In all other respects, weafflim the trial court’s judgment.




                                                                                      / /
                                                                                  )4MMOELY
                                                                                          /11/,
                                                                                             1
                                                                            /JuSTICE

11020 IF.P05




            need not address the legal suflictencv issue because it oilers no greater rehef than appellants would be entitled to under their first issue.
See Do!ge,tcorp o/ Tev.. Inc. e Lerntu. 255 5.W.3d 922. 929 (rex. 2009) (per eurlam) (concluding the appropriate remedy for legal insufficiency
in a post-answer delault judgment case isa remand for a new trial).
                                 Q!nurt uf ppiahi
                          Fifth Oiitrict t’if Lrxw tt Ja1Izu5

                                         JUDGMENT
TACTICAL AIR DEFENSE SERViCES,                         Appeal from the 397th Judicial District
INC ,AND (AR\ FEARS Appcllants                         Court of Grayson County, Texas. (Tr.Ct.No.
                                                       07-0322-397).
No. 05—Il —002() I —(A’        V                       Opinion delivered by Justice Moseley,
                                                       Justices FitzGerald and Richter
CHARLES J. SEAROCK, JR., Appellee                      participating.


         In accordance with this Court’s opinion of this date, the judgment of the trial court against
appellants Tactical Air Defense Services, Inc. and Gary Fears is REVERSED and that part of this
cause is REMANDED to the trial court for further proceedings. In all other respects, the judgment
of the trial court is AFFIRMED. It is ORDERED that appellants Tactical Air Defense Services,
Inc., and Gary Fears recover their costs of this appeal ftom appeilee Charles J. Searock, Jr.


Judgment entered February 19, 2013


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                                                      JlM.MOSELEY
                                                      UST1CE
