                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00287-CV

                                         Juan RODRIGUEZ,
                                              Appellant

                                                v.
                                               Mary
                                          Mary BOLANOS,
                                              Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-CI-12393
                            Honorable Karen H. Pozza, Judge Presiding 1

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 29, 2013

REVERSED AND REMANDED

           After a default judgment was entered against Juan Rodriguez in a lawsuit arising from an

automobile accident, he filed a motion for new trial, which was denied by the trial court. On

appeal, Rodriguez contends the trial court erred in denying his motion for new trial and the

evidence is insufficient to support the damages awarded in the default judgment. Because

Rodriguez established his entitlement to a new trial, we reverse the trial court’s judgment and

remand the cause to the trial court for a new trial.

1
The Honorable Karen H. Pozza signed the default judgment in the underlying cause; however, the Honorable
Antonia Arteaga signed the order denying the motion for new trial.
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         In Texas, an adjudication on the merits is preferred.       Milestone Operating, Inc. v.

ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012). Accordingly, “the law abhors a default

because equity is rarely served by a default.” Titan Indem. Co. v. Old S. Ins. Grp., Inc., 221

S.W.3d 703, 708 (Tex. App.—San Antonio 2006, no pet.).

         A trial court must set aside a default judgment if (1) “the failure of the defendant
         to answer before judgment was not intentional, or the result of conscious
         indifference on his part, but was due to a mistake or an accident”; (2) “the motion
         for a new trial sets up a meritorious defense”; and (3) granting the motion “will
         occasion no delay or otherwise work an injury to the plaintiff.”

Milestone Operating, Inc., 388 S.W.3d at 309 (quoting Craddock v. Sunshine Bus Lines, Inc.,

134 Tex. 388, 133 S.W.2d 124, 126 (1939)). “The historical trend in default judgment cases is

toward the liberal grant of new trials.” Titan Indem. Co., 221 S.W.3d at 708. “Thus, where the

elements of the Craddock test are satisfied, a trial court abuses its discretion in denying a motion

for new trial.” Id.

         1.     Conscious Indifference

         “Consciously indifferent conduct occurs when the defendant knew it was sued but did not

care.”   Milestone Operating, Inc., 388 S.W.3d at 310 (internal quotations omitted).            “The

absence of an intentional failure to answer rather than a real excuse for not answering is the

controlling fact.” Id. “A defendant satisfies its burden under this element when its factual

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

factual assertions are not controverted by the plaintiff.” Id.; see also Titan Indem. Co., 221

S.W.3d at 708–09.

         In his affidavit, which was attached to his motion for new trial, Rodriguez stated that he

was unaware that a lawsuit had been filed against him until notified by his insurance agent that a

default judgment had been taken against him. Rodriguez noted that the officer’s return indicated



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that “the lawsuit papers were posted to a gate at 3003 Kiowa Street” where his mother lived.

Rodriguez stated, “If she received the suit papers, she never advised me of that fact.”

       The record contains a motion for substituted service, stating that service of citation was

attempted by personally delivering it to Rodriguez at 3003 Kiowa St. and requesting substitute

service by: (1) leaving a copy of the citation with any person over the age of sixteen at that

address; (2) placing it inside the premises through a door mail chute or by slipping it under the

front door; or (3) “If none of these methods are possible, the citation should be securely affixed

to the front door or main entry at the above specified location.” In the affidavit in support of the

motion, Margarito Vasquez stated that she attempted to personally serve Rodriguez at 3003

Kiowa St. on three occasions. On her first and third attempts, no one answered the door. On the

second attempt, Vasquez spoke to a woman who stated that Rodriguez did not live at the address

but “comes and picks up his mail.” After the motion for substituted service was granted, the

officer’s return states that citation was served by posting the citation to a locked gate.

       At the hearing on the motion for new trial, which was held on May 2, 2012, Rodriguez

testified that he had resided at 607 West Ridgewood Court, Apartment #3, for almost five years.

Rodriguez admitted that he sometimes received mail at the Kiowa address. Rodriguez also

admitted that his mother had told him someone had gone by the house looking for him, but she

never told him someone had taped a lawsuit to her door. Rodriguez stated that the mail he

received at the Kiowa address was mainly junk mail. Rodriguez stated that his family moved

often while he was growing up, and the house on Kiowa St. belonged to his grandmother whose

address was used by a lot of the family as “like home base.” When asked whether the Kiowa

address was the best address for him since he had moved several times, Rodriguez responded, “I

guess so.”



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       Rodriguez testified that the driver’s license he handed the police officer at the scene of

the accident listed his address on West Ridgewood Court, which was his only address since the

date of the accident. Rodriguez stated that his bills for utilities, student loans, and credit cards

are all sent to the West Ridgewood Court address. The police report also listed the Kiowa

address because Rodriguez’s mother paid for the insurance coverage on the car and her address

was listed on the insurance card.

       In this case, Rodriguez’s factual assertions are uncontroverted. Appellee contends that

the trial court properly denied the motion for new trial because Rodriguez did not present any

testimony from his mother. Appellee asserts, “When a defendant’s excuse in failing to answer is

his reliance on a third party to notify him, he must similarly prove that the third party’s failure

was not intentional or the result of conscious indifference.” The law on which Appellee relies,

however, relates to a defendant’s reliance on an agent or third party to file his answer or to notify

him of a trial setting. See Titan Indem. Co., 221 S.W.3d at 708; Ferguson & Co. v. Roll, 776

S.W.2d 692, 697 (Tex. App.—Dallas 1989, no writ). In this case, Rodriguez was not relying on

his mother to file an answer. Instead, Appellee was relying on Rodriguez’s mother to notify him

of the lawsuit it posted on her locked gate. Under these circumstances, Rodriguez is not required

to offer any testimony from his mother when his uncontroverted testimony was that his mother

never notified him about the lawsuit.        Accordingly, since no evidence was presented to

controvert Rodriguez’s testimony, Rodriguez satisfied his burden of establishing that his failure

to answer was not intentional or the result of conscious indifference. See Titan Indem. Co., 221

S.W.3d at 711 (noting credibility is not an issue where testimony is uncontroverted); see also

Milestone Operating, Inc., 388 S.W.3d at 310 (reversing court of appeals judgment affirming

trial court’s denial of motion for new trial on this Craddock element where evidence that

defendant’s failure to answer was neither intentional nor the result of conscious indifference was
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uncontroverted); Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex.

2006) (holding when evidence establishing lack of intent or conscious indifference is

uncontroverted, “the trial court is not at liberty to disregard it”).

        2.      Meritorious Defense

        “In order to satisfy the second prong of the Craddock test, the defaulting party must set

up a meritorious defense by alleging facts, supported by affidavit, which in law would constitute

a defense to the cause of action pled by the plaintiff.” Titan Indem. Co., 221 S.W.3d at 711. “A

meritorious defense is one, that if ultimately proved, will cause a different result when the case is

tried again.” Id. “Craddock requires that a defendant ‘set up’ a meritorious defense, not that it

prove one.” Id.

        In his affidavit, Rodriguez stated, “With respect to the accident, I contend that the

plaintiff did not exercise any evasive action to avoid the collision, which could have been

avoided or minimized had she done so.” At the hearing on the motion, Rodriguez’s attorney

clarified “what Mr. Rodriguez contends is that Ms. Bolanos, the plaintiff, did not exercise any

evasive action, did not apply her brakes or veer in either direction before the collision. And it’s

our position that that would have minimized or a jury could ultimately find maybe some

comparative negligence on Ms. Bolanos.” We hold the foregoing is sufficient to set up a

meritorious defense. See Jackson v. Mares, 802 S.W.2d 48, 51–52 (Tex. App.—Corpus Christi

1990, writ denied) (holding plaintiff’s contributory negligence presents a meritorious defense);

see also Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1973) (holding affidavit contained sufficient

facts to raise issues of contributory negligence even though it did not detail all of the facts

relating to the occurrence).




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       3.         No Delay or Prejudice

       “In order to satisfy the third prong of Craddock, the defaulting party must establish that

the granting of its motion for new trial would not occasion a delay or otherwise work an injury to

the plaintiff.”    Titan Indem. Co., 221 S.W.3d at 712.          “Important factors to consider in

determining whether delay or injury will occur are: (1) whether the defendant has offered to

reimburse the plaintiff for the costs involved in obtaining the default judgment; and (2) whether

the defendant is ready, willing, and able to go to trial.” Id.

       In this case, the record reflects that Rodriguez was ready, willing, and able to go to trial,

and appellee’s attorney conceded at the hearing that appellee would not be harmed with regard to

any delay. Appellee contends, however, that Rodriguez did not offer to reimburse her costs

involved in obtaining the default judgment. Appellee relies on her attorney’s testimony that “in

obtaining the default judgment and the subsequent hearings and the numerous hours and days of

research and in corresponding back and forth with [Rodriguez’s attorney], and — Your Honor, I

would estimate my attorney’s fees to be in the neighborhood of around $7500. But — so I think

anywhere — I think somewhere between 5,000 and 7500 would be a fair award of attorney’s

fees. … And it wasn’t just going down there to do the default. It was all the motions

afterwards, all the — it was the hearing, the research, and all the corresponding back and forth.”

Rodriguez’s attorney countered that if appellee had served Rodriguez at his address where he

resided for five years and which was listed on the police report, instead of seeking substitute

service, reasonable attorney’s fees of $250 to $500 would be appropriate. We construe the

comments made by Rodriguez’s attorney as an offer to reimburse appellee her “reasonable”

costs. See United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958, 959 (Tex. 1976) (noting

defendant is not required to reimburse plaintiff for all expenses incidentally incurred in obtaining

a default judgment and the amount of expenses a defendant should be required to reimburse is an
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equitable determination that is dependent on the facts of each case).           The parties simply

disagreed with regard to what a “reasonable” amount would be. We further note that the

testimony by appellee’s attorney does not appear to be limited to the “costs involved in obtaining

the default judgment.” Because Rodriguez’s attorney offered to reimburse the appellee for

“reasonable” costs, we hold that this prong of the Craddock test was satisfied.

                                           CONCLUSION

       Because Rodriguez satisfied his burden of establishing all three elements of the Craddock

test, the trial court erred in denying his motion for new trial.       Therefore, the trial court’s

judgment is reversed, and the cause is remanded to the trial court for a new trial.

                                                      Patricia O. Alvarez, Justice




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