Opinion issued August 26, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-12-01000-CV
                            ———————————
        ROBERT KELLY D/B/A BRENHAM FLOWERS, Appellant
                                        V.
 BRENHAM FLORAL COMPANY D/B/A BRENHAM FLORAL, Appellee



                   On Appeal from the County Court at Law
                         Washington County, Texas
                       Trial Court Case No. 2011-092



                        MEMORANDUM OPINION

      Robert Kelly d/b/a Brenham Flowers appeals the post-answer default

judgment for appellee, Brenham Floral Company d/b/a Brenham Floral. In two

issues, Kelly contends that the trial court abused its discretion in (1) denying his
motion for new trial to set aside the default judgment and (2) awarding attorney’s

fees in the amount of $12,895 to Brenham Floral. We affirm.

                                     Background

      Brenham Floral, a florist shop in Brenham, Texas, has been in business since

1962. In February 2011, Kelly opened Brenham Flowers located at 801 A&B

South Market Street, in Brenham, Texas. 1

      On May 24, 2011, Brenham Floral sued Kelly for trademark infringement,

unfair competition, and dilution based on Kelly’s use of “Brenham Flowers.” In its

lawsuit, Brenham Floral alleged that Kelly’s use of the name “Brenham Flowers”

and “Brenham Wildflowers” had “caused numerous instances of actual confusion,

mistake, or deception among members of the relevant consuming public, all to the

detriment of [Brenham Floral] and its goodwill.”             Brenham Floral sought

injunctive relief and recovery of its attorney’s fees. 2

      On August 11, 2011, Kelly filed a letter addressed to the court clerk which

functioned as his answer to the lawsuit. In the letter, he stated that Brenham


1
      At the hearing on the motion for new trial, Kelly’s attorney stated that Kelly had
      filed the d/b/a for the business on behalf of his fiancée, Deann Klingman, and that
      Klingman actually ran the day-to-day operations.
2
      In its amended petition, Brenham Floral sought actual damages based on its
      trademark infringement and unfair competition claim. However, at trial, Debbie
      Woltmann, one of the owners of Brenham Floral, testified that Brenham Floral
      was not seeking damages but only injunctive relief and recovery of its attorney’s
      fees.
                                            2
Flowers had willingly changed its name to Brenham Wildflowers after receiving a

request from Brenham Floral’s attorney to do so. He further stated that, despite

making every effort to differentiate his business from Brenham Floral, Brenham

Floral had filed suit against his company. On October 5, 2011, Brenham Floral

filed a motion for default judgment alleging that Kelly had not filed a pleading

constituting an answer or otherwise entered an appearance in the suit.

      By letter dated May 7, 2012, the trial court notified the parties that the case

“will be dismissed by the Court for want of prosecution at its docket call on June

14, 2012 . . . unless a written Motion to Retain, together with a proposed Pre-Trial

Order complying with Rule 165a(1), is filed by the date stated above.” On June 6,

2012, Brenham Floral filed a motion to retain, a motion for summary judgment,

and a proposed pretrial order.

      On June 13, 2012, the trial court filled out the pretrial order setting trial for

August 15, 2012. Brenham Floral and its counsel appeared for trial but Kelly did

not. At the conclusion of the proceeding, the trial court orally granted Brenham

Floral’s motion for default judgment and signed an order granting the motion, the

requested injunctive relief, and an award of attorney’s fees to Brenham Floral in

the amount of $12,895.

      On September 4, 2012, Kelly filed a motion for new trial and, following a

hearing, the trial court denied Kelly’s motion. Kelly timely filed this appeal.

                                          3
                                     Discussion

      In his first issue, Kelly contends that the trial court abused its discretion in

denying his motion for new trial to set aside the default judgment. His second

issue argues the sufficiency of the evidence to support the award of attorney’s fees.

   A. Post-Answer Default Judgment

      1. Applicable Law

      A post-answer default judgment is a judgment rendered after the defendant

has filed an answer but failed to appear for trial. See Stoner v. Thompson, 578

S.W.2d 679, 682 (Tex. 1979).        A post-answer default “constitutes neither an

abandonment of defendant’s answer nor an implied confession of any issues thus

joined by the defendant’s answer.” Id. In such a case, judgment may not be

entered on the pleadings; instead, the plaintiff must offer evidence and prove his

case as in a judgment upon a trial. Id.; see also Sharif v. Par Tech, Inc., 135

S.W.3d 869, 873 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

      A trial court must set aside a post-answer default judgment when the

defendant satisfies the test articulated in Craddock v. Sunshine Bus Lines, Inc., 133

S.W.2d 124, 126 (1939), pursuant to which the defendant must demonstrate that

(1) his failure to appear was not intentional or the result of conscious indifference;

(2) there is a meritorious defense; and (3) the granting of a new trial will not

operate to cause delay or injury to the opposing party.

                                          4
Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Cliff v. Huggins,

724 S.W.2d 778, 779 (Tex. 1987).

      The law presumes that a trial court will hear a case only after giving proper

notice to the parties. Tex. Dep’t of Pub. Safety v. Mendoza, 956 S.W.2d 808, 812–

13 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Due process requires notice

that is reasonably calculated under the circumstances to effectuate service.

Withrow v. Schou, 13 S.W.3d 37, 40 (Tex. App.—Houston [14th Dist.] 1999, pet.

denied). If the defendant did not receive notice of a trial setting, he satisfies the

first prong of Craddock and need not prove the existence of a meritorious defense

to be entitled to a new trial. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988).

      We review the denial of a motion for new trial under an abuse of discretion

standard. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). An abuse of

discretion occurs if the trial court acts without reference to any guiding rules or

principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Accordingly, a

trial court abuses its discretion in denying a new trial to a defendant who satisfies

the Craddock test. Cliff, 724 S.W.2d at 779; Ashworth v. Brzoska, 274 S.W.3d

324, 329 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

      2. Analysis

      In his motion for new trial, Kelly denied receiving notice of the August 15

trial setting at which the court granted Brenham Floral’s motion for default

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judgment. He argues that because he never received notice of the trial setting, his

failure to appear at trial was not intentional or the result of conscious indifference.

Thus, he claims, he has satisfied the first prong of Craddock and need not prove

the existence of a meritorious defense to be entitled to a new trial. Brenham Floral

argues that the trial court did not abuse its discretion in denying Kelly’s motion for

new trial because there was sufficient evidence presented to support the court’s

conclusion that Kelly had received notice of the trial setting.

      A presumption of receipt arises when a party presents evidence that a

document was placed in the United States mail with the proper address and

sufficient postage. Southland Life Ins. Co. v. Greenwade, 159 S.W.2d 854, 857

(Tex. 1942); Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex. App.—Houston [1st

Dist.] 2004, no pet.).    Direct testimony that a letter was properly addressed,

stamped, and mailed to the addressee raises a presumption that the letter was

received by the addressee in due course. Texaco, Inc., 137 S.W.3d at 767. The

matters of proper addressing, stamping, and mailing may be proved by

circumstantial evidence, such as the customary mailing routine of the sender’s

business. Id. The mere denial of receipt is sufficient to rebut the presumption; id.;

Gulf Ins. Co. v. Cherry, 704 S.W.2d 459, 461 (Tex. App.—Dallas 1986, writ ref’d

n.r.e.), however, the denial is not conclusive and merely presents a fact issue for

the factfinder. Texaco, Inc., 137 S.W.3d at 767; Cooper, 489 S.W.2d at 415. The

                                          6
presumption of receipt is overcome conclusively only when “the evidence tending

to support the contrary inference is conclusive, or so clear, positive, and

disinterested that it would be unreasonable not to give effect to it as conclusive.”

Texaco, Inc., 137 S.W.3d at 767.

      At the hearing on Kelly’s motion for new trial, Brenham Floral presented

testimony by the court clerk that she mailed 3 the signed pretrial order to Kelly on

June 13, 2012:

      Q:     Is it your testimony that what was contained inside that
             envelope was the order for pretrial?

      A:     Yes.

      Q:     Are you absolutely sure that that was contained in that
             envelope?

      A:     Yes, sir.
                                         ....

      Q:     Do you feel like you mailed that document closer to June or
             closer to July, or closer to August?

      A:     No, it was mailed – the document was mailed on June the 13th.

      The clerk’s testimony, therefore, raised the presumption that Kelly received

the pretrial order in due course. See id. at 767–68.

3
      The envelope in which the pretrial order was sent is addressed to John Kelly d/b/a
      Brenham Flowers rather than Robert Kelly. The original petition named John
      Kelly but was later amended to correctly reflect his name as Robert Kelly.
      However, the address on the envelope is correct—801 A&B South Market Street,
      Brenham, Texas 77833—the address to which all other correspondence was sent
      and received.
                                          7
      As previously noted, however, the mere denial of receipt is sufficient to

rebut the presumption, see id. at 767, and Kelly testified that he never received the

pretrial order setting the June 13 trial date. His fiancée, Deann, testified that she

too never received the signed pretrial order and clarified that she is the only person

who receives and reviews the mail delivered to the shop. The presumption of

receipt having been rebutted, the factfinder is presented with a fact issue to resolve.

See id. at 768. The presumption of receipt is overcome conclusively only when

“the evidence tending to support the contrary inference is conclusive, or so clear,

positive, and disinterested that it would be unreasonable not to give effect to it as

conclusive.” Id. at 767. In addition to the testimony of the clerk, Kelly, and

Deann, the trial court heard evidence that the envelope containing the signed

pretrial order was never returned to the clerk’s office as undelivered; 4 Kelly

received all other correspondence regarding the lawsuit at the same address to

which the pretrial order was sent; the address is the same listed on Kelly’s pro se

answer; and that Kelly and Deann assumed that the case was going to be dropped




4
      In Withrow v. Schou, 13 S.W.3d 37 (Tex. App.—Houston [14th Dist.] 1999, pet.
      denied), the clerk mailed notice to counsel at his last known address listed on his
      pleadings but the notice was returned undelivered. See id. at 40. A post-answer
      default judgment was granted against the defendant when counsel failed to appear
      at trial. See id. On appeal, the court held that the default judgment was proper
      because the clerk mailed notice in full compliance with the rules of civil
      procedure. See id. at 41–42.
                                           8
based on the notice of dismissal for want of prosecution that they had previously

received from the court.

      Kelly, however, asserts on appeal that Deann’s testimony that she was the

only one with access to the mail, that the mail carrier typically deposited the mail

in a basket in the shop, and that she regularly checked the mail suggests that it is

highly unlikely that anyone took the mail. Thus, he argues, the most reasonable

conclusion is that the letter never arrived because the clerk’s office never sent it.

Kelly further points to the court clerk’s testimony that, in this particular instance,

the envelope containing the signed pretrial order was photocopied before it was

postmarked rather than postmarked first as is the customary practice.

      As factfinder, the trial court is given great latitude to believe or disbelieve a

witness’s testimony, particularly if the witness is interested in the outcome. See In

re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000). The trial court’s task was to decide

whether Kelly had presented evidence “so conclusive, or so clear, positive, and

disinterested” as to overcome the presumption of receipt, and it did so in favor of

Brenham Floral. Texaco, Inc., 137 S.W.3d at 767. Because we may not substitute

our judgment for that of the factfinder, we hold that the evidence is sufficient to

support the trial court’s finding that Kelly received notice of the trial setting. See

Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (stating that court

of appeals may not pass upon witnesses’ credibility or substitute its judgment for

                                          9
that of factfinder, even if evidence would clearly support different result). Because

Kelly did not satisfy the first prong of Craddock, the trial court did not abuse its

discretion in denying his motion for new trial. See Cliff, 724 S.W.2d at 779. We

overrule Kelly’s first issue.

    B. Attorney’s Fees

      In his second issue, Kelly contends that there is insufficient evidence to

support the trial court’s award of attorney’s fees in the amount of $12,895 to

Brenham Floral.     Specifically, he argues that the evidence is scant, conclusory,

and ignores the factors set out by the Texas Supreme Court in Arthur Andersen &

Co. v. Perry Equipment Co., 945 S.W.2d 812 (Tex. 1997).5 Because Kelly raises

this argument for the first time on appeal, the issue is not preserved for our review.

See TEX. R. APP. P. 33.1(a).

      To preserve a complaint for appellate review, a party must have presented its

complaint to the trial court by timely request, objection, or motion with sufficient


5
      A trial court may consider the following non-exclusive factors when determining
      an award of attorney’s fees: (1) the time and labor required, the novelty and
      difficulty of the questions involved, and the skill required to perform the legal
      service properly; (2) the likelihood that the acceptance of the particular
      employment will preclude other employment by the lawyer; (3) the fee
      customarily charged in the locality for similar legal services; (4) the amount
      involved and the results obtained; (5) the time limitations imposed by the client or
      the circumstances; (6) the nature and length of the professional relationship with
      the client; (7) the experience, reputation, and ability of the lawyer or lawyers
      performing the services; and (8) whether the fee is fixed or contingent on results
      obtained or uncertainty of collection before the legal services have been rendered.
      Arthur Andersen & Co. v. Perry Equip. Co., 945 S.W.2d 812, 818 (Tex. 1997).
                                           10
specificity to make the trial court aware of the complaint.        Id.   Kelly never

complained about the award of attorney’s fees to the trial court in either his motion

for new trial or at the hearing on his motion. Trial error regarding the award of

attorney’s fees is not fundamental error and, thus, must be preserved by timely

request, objection, or motion. Reagan Nat’l Adver. of Austin, Inc. v. Capital

Outdoors, Inc., 96 S.W.3d 490, 496–97 (Tex. App.—Austin 2002, pet. granted,

judgm’t vacated w.r.m.) (concluding party waived error regarding award of

attorney’s fees when it failed to complain about sufficiency of evidence at hearing

and filed neither motion for new trial nor other post-judgment motion bringing its

complaint to trial court’s attention); Tex. Dep’t of Pub. Safety v. Burrows, 976

S.W.2d 304, 307 (Tex. App.—Corpus Christi 1998, no pet.) (finding complaint

regarding award of attorney’s fees waived where party did not raise issue in motion

for rehearing or motion for new trial). Because Kelly did not raise the issue before

the trial court, it has not been preserved for our review. See TEX. R. APP. P.

33.1(a). We overrule Kelly’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.


                                                    Jim Sharp
                                                    Justice

Panel consists of Justices Jennings, Sharp, and Brown.

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