                                                                                            ACCEPTED
                                                                                        03-16-00076-CV
                                                                                              11220170
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  6/20/2016 10:19:24 AM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                                     ORAL ARGUMENT REQUESTED
                         No. 03-16-00076-CV
                                                        FILED IN
___________________________________________________________________
                                                                3rd COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                     In The                     6/20/2016 10:19:24 AM
                                                                    JEFFREY D. KYLE
                                                                         Clerk
                     COURT OF APPEALS
                       THIRD DISTRICT OF TEXAS
                            Austin, Texas
___________________________________________________________________

                                 BRUCE HITT,

                                              Appellant,

                                       v.

           FRANK ZARAUSKAS d/b/a BOONDOCKS BAR & GRILL,

                                      Appellee.
___________________________________________________________________
                        On Appeal from Cause No. 14C084L
              In the County Court at Law of Tom Green County, Texas
                       Honorable Ben Nolen, Presiding Judge
___________________________________________________________________

                         BRIEF FOR APPELLEE
_________________________________________________________________

                                 Charles W. King
                          State Bar Number 11436525
                                   101 S. Park
                            San Angelo, Texas 76901
                          Telephone: (325) 227-6536
                           Facsimile: (325) 227-6537
                            Attorney for Appellee
                        IDENTITY OF PARTIES AND COUNSEL

      In order to assist the Court in identifying grounds for recusal or

disqualification, Appellee certifies that the following is a complete list of the

names and addresses of the parties to this appeal and their counsel:

APPELLANT:                Bruce Hitt

COUNSEL FOR               Michael A. Yanof (appellate counsel)
APPELLANT:                Cassie J. Dallas (appellate & trial counsel)
                          Jason R. Jobe (trial counsel)
                          Thompson, Coe, Cousins & Irons, L.L.P.
                          700 North Pearl St., 25th Floor
                          Dallas, Texas 75201
                          Telephone: (214) 871-8200
                          Facsimile: (214) 871-8209

APPELLEE:                 Frank Zarauskas d/b/a Boondocks Bar & Grill

COUNSEL FOR               Charles W. King
APPELLEE:                 101 S. Park
                          San Angelo, Texas 76901
                          Telephone: (325) 227-6536
                          Facsimile: (325) 227-6537
                          Email: charles@charleskinglaw.com




                                           2
                          FOR THE COURT’S CONVENIENCE

        Bruce Hitt was the Defendant in the trial court and is the Appellant herein.

For convenience he is referred to as “Hitt” or “Appellant.”

        Frank Zarauskas d/b/a Boondocks Bar and Grill was the Plaintiff in the trial

court and is the Appellee herein. For convenience, he is referred to as “Zarauskas”

or “Appellee.”

        References to the Clerk’s Record and Reporter’s Record are abbreviated as

“CR” and “RR,” respectively. Because the Reporter’s Record is multiple volumes,

the volume number is placed in front of the Reporter’s Record designation, and

the page number is placed after. For example, Volume 4 of the Reporter’s Record

at page 4 would be cited as 4 RR 4.

        Appendix items are attached to this Brief and abbreviated as “Apx. Tab

___.”




                                           3
                                 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ………………………………………………………….. 2
FOR THE COURT’S CONVENIENCE……………………………………………………………….. 3
INDEX OF AUTHORITIES……………………………………………………………………………….. 6
STATEMENT OF THE CASE……………………………………………………………………………. 8
STATEMENT REGARDING ORAL ARGUMENT…………………………………………………..9
ISSUE PRESENTED ………………………………………………………………………………………..10
STATEMENT OF FACTS…………………………………………………………………………………. 11
         I.      Zarauskas’ Lawsuit and the Eviction Proceeding…………………….11
         II.     Hitt’s Counsel Withdraws Without Hitt’s Knowledge or
                 Consent…………………………………………………………………………………. 12

         III.    Hitt Not Served with Discovery or Notice of Hearing on
                 The Merits …………………………………………………………………………….. 13

SUMMARY OF ARGUMENT…………………………………………………………………………...16
ARGUMENT ………………………………………………………………………………………………….18
    I.          Standard of Review……………………………………………………………………18
    II.         The Trial Court Did No Abuse Its Discretion in Denying Hitt’s
                Motion for New Trial………………………………………………………………….19

                A.    Due process requires that defendants receive notice
                      of a trial setting after appearing in a case; however, a
                      Defendant has a duty to keep the Court informed of
                      His change of address……………………………………………………...19

                B.    If Hitt did not receive notice of the November 10, 2015
                      Hearing, it is because he failed to comply with Tex. R.
                      Civil P. 245……………………………………………………………………….21

                C. The Notice of Hearing did not comply with Tex.R.Civ.

                                           4
          P. 245…………………………………………………………………………………. ……22

      D. The uncontroverted evidence did not establish each of the
         Craddock elements ……………………………………………………………….23

          1. A post-answer default judgment should be set
             Aside and a new trial ordered when the
             Craddock elements are established, but that was
             not the case here………………………….……………………………………23

          2. Hitt’s non-appearance was if not intentional,
             the result of conscious indifference…………………………........... 23

          3. Hitt did not set up a meritorious defense……………………………24

          4. Hitt did not demonstrate that granting a new trial
             would not result in prejudice or delay…………………………………24

CONCLUSION……………………………………………………………………………………………25

CERTIFICATE OF SERVICE …………………………………………………………………………25

CERTIFICATE OF COMPLIANCE………………………………………………………………….26

APPENDIX TO BRIEF OF APPELLEE…………………………………………………………….27


Judgment (CR 60-61)                                                Tab 1

Order Denying Defendant Bruce Hitt’s Motion
To Set Aside Post-Answer Default Judgment
And Motion for New Trial (CR 131)                                  Tab 2

Affidavit of Bruce Hitt (CR 78-83)                                 Tab 3




                                     5
                            INDEX OF AUTHORITIES

CASES
$429.30 In U.S. Currency v. State,
      896 S.W.2d 363
      (Tex. App. –Houston [1st Dist.] 1995, no writ)……………………………………19, 22

Cliff v. Huggins,
        724 S.W.2d 778, 779 (Tex. 1987) …………………………………................18, 20, 22

Craddock v. Sunshine Bus Lines,
     133 S.W.2d 124 (Tex. 1939)……………………………………..…10, 16, 18, 20, 23, 24

Dolgencorp of Tex., Inc. v. Lerma,
     288 S.W. 3d 922 (Tex. 2009) (per curiam)    ……………………………………..18, 19

Ivy v. Carrell,
        407 S.W.2d 212 (Tex. 1966)…………………………………………………………………….23

LBL Oil Co. v. Int’l Power Serv. Inc.,
      777 S.W.2d 390 (Tex. 1989)…………………………………………………………………….19

Mathis v. Lockwood,
     166 S.W.3d 743 (Tex. 2005) (per curiam)…………………………………….………21,22

Matsushita Elec. Cor. V. McAllen Copy Data, Inc.,
     815 S.W.2d 850 (Tex. App. – Corpus Christi 1991, writ denied) ……………….19

Murphree v. Ziegelmair,
     937 S.W.2d 850 (Tex.App. –Corus Christi 1991, writ denied)……………………18

Old Republic Ins. Co. v. Scott,
      873 S.W.2d 381 (Tex. 1994)…………………………………………………………………..… 18

Smith v. Holmes,
      53 S.W.3d 815, 817-18 (Tex. App. – Austin 2001, no pet.) ………..…18, 19, 20


                                       6
Strackbein v. Prewitt,
      671 S.W.2d 37,38 (Tex. 1984) ………………………………………………………………….18

STATUTES:

Tex. Civ. Prac. & Rem. Code § 30.015……………………………………………….8,13, 14,18,21

Tex. Civ. Prac. & Rem. Code § 30.015(d)…………………………………………………………8, 12


RULES:

Tex. R. Civ. P. 10……………………………………………………………………………………………12,21

Tex. R. Civ. P. 21a……………………………………………………………………………………..……….20

Tex. R. Civ. P. 245…………………………………………………………………………..4,5,10,16,20,22




                                  7
                         STATEMENT OF THE CASE
___________________________________________________________________
Nature of            This case arises from the breach of an alleged oral lease
the case             agreement. Appellee Zarauskas asserted both tort and
                     quantum meruit claims against Hitt. (CR 26-35.)
                     Appellant Hitt answered, asserting various defenses, and
                     filed a counterclaim for unpaid rent. (CR 23-25.) The
                     unpaid rent portion of the case was moot at the time of
                     trial.
___________________________________________________________________
Trial Court          Cause No. 14C084-L in the County Court at Law, Tom
                     Green County, Texas, the Honorable Ben Nolen,
                     presiding.
___________________________________________________________________
Course of the        On October 15, 2015, the trial court issued a Notice of
Proceeding           Hearing on the Merits. (CR 59.) Pursuant to the Notice
                     of Hearing, the case was called to trial on November 10,
                     2015. (CR 60; Apx. Tab 1.) Appellee’s position is if Hitt
                     did not receive the Notice of Hearing and did not
                     appear, it was his own fault. He failed to comply with
                     Tex. Civ. Prac. Rem. Code 30.015. (CR 78-83; Apx. Tab
                     3.) The trial court entered post-answer default
                     judgment in favor of Zarauskas. (CR 60; Apx. 1.) (CR131;
                     Apx. 2.)

                     It is true that after learning of the adverse judgment,
                     Hitt filed a timely motion for new trial. (CR 64-77.)
___________________________________________________________________
Trial Court’s        After a hearing, the trial court denied Hitt’s motion for
Disposition          new trial because he failed to notify the court of his new
                     address, if he had one. (CR 131; Apx. 2.)
___________________________________________________________________
Appeal               Appellee stipulates that Hitt timely filed a notice of
                     appeal, but the trial court should decision should be
                     affirmed (CR 132-34.)
___________________________________________________________________


                                       8
                   STATEMENT REGARDNG ORAL ARGUMENT

      The trial court’s discretion to grant or deny a motion for new trial is broad.

In the case at bar the lack of notice, if any, was Appellant’s own fault because he

failed to comply with Tex. Civ. Prac. & Rem. Code 30.015(d) and failed to apprise

the court of his whereabouts. The trial court’s decision should be affirmed. There

was no abuse of discretion.




                                         9
                              ISSUE PRESENTED

1. Trial court did not abuse its discretion in denying Appellant’s motion for

   new trial; Appellant’s contention that: (a) Appellant did not receive notice

   of the trial setting is his own fault for not keeping the court apprised of his

   new address; (b) Hence, whether the notice complied with Rule 245 of the

   Texas Rules of Civil Procedure is immaterial. Appellant would not have

   gotten it because he did not advise the court that he moved, if he did; and

   (c) Appellant’s failure to appear was at least the result of conscious

   indifference; (d) Appellant may have alleged a meritorious defense; and/or

   alleged (e) that granting a new trial would not operate to cause delay or

   injury to the Plaintiff-Appellee; but he did not comply with all Craddock

   elements.




                                      10
                                STATEMENT OF FACTS

I.      Zarauskas’s Lawsuit and the Eviction Proceeding

              Appellee agrees with Appellant that Zarauskas filed his Original

     Petition on March 6, 2014. (CR 7-9.) It was pled as a fraud and negligent

     misrepresentation case, and in addition the lawsuit arose from the alleged

     breach of a lease agreement entered in early 2013 between Zarauskas and

     Hitt. (CR 26-35.) Hitt generally denied Zarauskas’s claims, asserted the

     affirmative defense of the statute of frauds, and counterclaimed for unpaid

     rent. (CR 23-25.) The unpaid rent issue was moot at the time of trial since

     Appellee paid rent and that part of said case was resolved.

              Both Zarauskas and Hitt acknowledged that an agreement was

entered, the terms of the agreement and their rights and obligations as landlord

and tenant were disputed. (CR 23-25, 26-35; see generally 2 RR 6-49.) It is true

that Hitt sued Zarauskas for forcible detainer around the time of the filing of the

Original Petition. (CR 33, 36, 40; 2 RR 36.) And, as set forth in Plaintiff’s First

Amended Petition, the judgment of possession entered by the Justice of the

Peace Court for Tom Green County, Precinct Number 2 was appealed to the

County Court and consolidated by the parties’ agreement into this cause number.

CR 33, 36, 40.)

                                           11
      Specifically, by order dated June 3, 2014, the trial court ordered that the

funds placed in the court’s registry for the eviction proceeding be transferred into

this cause number. (CR 40.) Three weeks later, the trial court administratively

closed the proceedings but did not dismiss the case. (CR 41.) Hitt did not notify

the Court that he moved to San Antonio, if he did. (CR 79; Apx. Tab 3.) He

violated Tex. Prac. & Rem. Code 30.015(d).

II.   Hitt’s Counsel Withdrew, But He Notified Hitt of His Motion. Hitt Did Not
      Keep His Own Attorney or the Court Informed of His Whereabouts.

      In February 2015, Hitt’s attorney of record, Jeffery Lisson (“Lisson”) filed a

motion to withdraw, citing an inability to communicate with his client as the

grounds for the motion. (CR 47-48, 79; Apx. Tab 3.) Lisson’s motion did contain a

certificate of service (CR 47-48.); and the motion was sent to Hitt’s last known

address. (CR 47.) See Tex. R. Civ. P. 10.

      As reflected in the certificate of service attached to the motion, Lisson

apparently attempted to serve Hitt as his mother’s house, located at 1226

Coventry Lane, San Angelo, Texas 76904 (“Coventry Address”), the address

provided to him by Hitt. (CR 47-48, 79; Apx. Tab 3.) Hitt claims he never received

a copy of the motion. (CR 78-80; Apx. Tab 3.)




                                            12
       The trial court issued a notice of hearing on the motion to withdraw,

service of which was attempted on Hitt’s residence located at 4730 Muirfield Ave,

San Angelo, Texas 76901 (“Muirfield Address”). (CR 49.) The Register of Actions

reflects that the notice was returned. (CR 82; Apx. Tab 3.) The Court granted

Lisson’s motion to withdraw on March 13, 2015. (CR 50.) Hitt blames his prior

counsel, the court and Appellee’s counsel for the fact that he allegedly was not

getting notice. However, Appellee contends he should have stayed in

communication with his attorney and the court. A court should not have to hunt

the litigants down. That is why Tex. Civ. Prac. & Rem. 30.015 makes sense.

III.   Hitt Contends He Was Not Served with Discovery or Notice of Hearing on
       the Merits.

       On July 23, 2015, Zarauskas electronically filed Requests for Admissions (CR

51-58). The certificate of service attached to these requests indicates that they

were sent by certified mail, return receipt requested and regular mail to the

Muirfield Address. (CR 52.) If Hitt did not reside or accept mail at the Muirfield

Address at the time Zarauskas purported to serve him with the requests, he

should have notified the court and the litigants of his new address. (CR 80; Apx.

Tab 3.) Tex. Civ. Prac. & Rem. Code 30.015.




                                         13
      On October 15, 2015, the Court issued a Notice of Hearing on the Merits

(“Notice of Hearing”), setting the case for trial on November 10, 2015, at 9:00

a.m. (CR 59.) Service of the Notice of Hearing was attempted on Hitt at the

Muirfield Address. (CR 59, 79-83; Apx. Tab 3.) Appellee contends if Notice of

Hearing was not received by Hitt, then it was his fault not the court’s. (CR 80, 83;

Apx. Tab 3.) Tex. Civ. Prac. & Rem. Code 30.015.

      Appellee agrees with Appellant that Zarauskas appeared at trial on

November 10, 2015, and Hitt did not appear. (3 RR 1-15.) Hitt’s liability was

established on the basis of the deemed admissions. Appellee presented evidence

that the request for admissions was sent to Hitt’s last known address. (3 RR 5-6.)

After admitting Zarauskas’s exhibits, which included the deemed admissions, and

hearing testimony from Zarauskas, the trial court entered a judgment against

Hitt, awarding Zarauskas $150,000 in damages and entering a take-nothing

judgment on Hitt’s counterclaim. (CR 60-61; Apx. Tab 1; 3 RR 13-14.)

      Hitt contends that he learned of the post-answer default judgment on or

about November 14, 2015, from friends, and timely filed a motion for new trial

seeking to set aside the default judgment. (CR 64-77, 80; Apx. Tab 3.) After a

hearing, the trial court denied Hitt’s motion for new trial. (CR 131; Apx. Tab 2.)




                                         14
The trial court’s ruling was correct. Mr. Hitt did not keep the court or the litigants

apprised of his new address, if any. Hitt filed this appeal. (CR 132-34.)




                                          15
                            SUMMARY OF ARGUMENT

       Appellee agrees with Appellant that once a party has appeared in a lawsuit,

due process requires that he receive notice of a trial setting before a default

judgment may be entered against him and that notice should comply with Rule

245 of the Texas Rules of Civil Procedure. However, the litigants also have a duty

to notify the court of change of address. Therein lies the problem. And, of

course, equitable principles warrant the granting of a new trial only when a party

establishes each and all of the elements stated in Craddock v. Sunshine Bus Lines,

Inc.

       In this case, Bruce Hitt appeared, answered, and asserted counterclaims

through his then-attorney. Subsequently, Hitt’s attorney withdrew. If Hitt

stopped receiving notice of the filings and settings in the proceeding, it was his

own fault. If Hitt did not receive notice of the November 10, 2015 hearing on the

merits at which the trial court entered judgment against him, that was his own

fault. The Court has no duty to track down the litigants. A court’s duty to send

notice to litigants is predicated on the litigants keeping the court advised of their

whereabouts.




                                         16
      After learning of the judgment, it is true that Hitt timely filed a motion for

new trial and that the trial court denied Hitt’s motion. The trial court did not

abuse its discretion. This Court should affirm the judgment.




                                         17
                                     ARGUMENT

I.     Standard of Review

      A trial court’s decision on a motion for new trial is reviewed for abuse of

discretion. Appellee agrees with the law cited by Appellant generally, but not as

applied to the case at bar. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987)

(citing Strackbein v. Prewitt, 671 S.W. 2d 37, 38 (Tex. 1984)); see also Smith v.

Holmes, 53 S.W. 3d 815, 817 (Tex. App. – Austin 2001, no pet.) The trial court’s

discretion is not unbridled. Cliff, 724 S.W.2d at 779. That said, the litigants are

required to notify the court of change of address. The court has no duty to track

down the litigants. There is a reason for Rules like Tex. Prac. & Rem. Code 30.015,

and that reason is so that the parties will do their part to inform the court of their

address if they want to receive notice of settings.

      If a defaulted party moves for a new trial, he must comply with all three

elements of the Craddock test, . . . a trial court does not abuse its discretion if it

fails to grant a new trial when the defendant was consciously indifferent. In the

case at bar, Appellee contends Appellant was consciously indifferent to the

proceedings and at fault in not providing a change of address. Dolgencorp of

Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam) (citing Old

Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994)).

                                           18
II.   The Trial Court Did Not Abuse Its Discretion in Denying Hitt’s Motion for
      New Trial

      In Hitt’s motion for new trial, he contended he did not receive notice of the

trial setting (CR 78-83; Apx. Tab 3; 4 RR 1-28.); but ad nauseam that was because

he failed to keep the court apprised of his address. The trial court properly

denied Hitt’s motion for new trial. (CR 131.) In doing so, the trial court did not

abuse its discretion.

      A.     While due process requires that defendants receive notice of any
             trial setting after appearing in a case, litigants are required to keep
             the court apprised of their change of address.

      Appellee agrees with Appellant that once a defendant has made an

appearance in a case, he must receive notice a trial setting as a matter of due

process under the Fourteenth Amendment. Smith, 53 S.W.3d at 817; see also

Murphree v. Ziegelmair, 937 S.W.2d 493, 495 (Tex. App. – Houston [1st Dist.]

1995, no writ (citing LBL Oil Co. v. Int’l Power Serv. Inc., 777 S.W.2d 390, 390-91

(Tex. 1989)). “A post-answer default judgment occurs when a defendant who has

answered fails to appear for trial.” Dolgencorp, 288 S.W.3d at 925. Appellant

correctly states that for a post-answer default judgment to be valid, it must be

shown that the defendants received notice of the hearings. $429.30 In U.S.

Currency v. State, 896 S.W.2d 363, 366 (Tex. App. – Houston [1st Dist.] 1995, no


                                          19
writ); Matsushita Elec. Cor. V. McAllen Copy Data, Inc. , 815 S.W.2d 850, 853 (Tex.

App. – Corpus Christi 1991, writ denied); see also Tex. R. Civ. P. 21a & 245. “A

defendant who does not receive notice of a post-answer default-judgment

proceeding is deprived of due process.” Smith, 53 S.W.3d at 817-18. That is all

true, but that is why it is important to follow all court rules and advise the court of

a change of one’s address. Appellee contends Appellant answered and counter-

claimed and then just ignored the proceedings. The totality of the circumstances

indicate conscious indifference: not communicating with his lawyer, moving, not

telling anyone his new address.

       “Rule 21a sets up a presumption that when notice of trial setting properly

addressed and postage prepaid is mailed, that the notice was duly received by the

addressee,” the presumption may be overcome. Cliff, 724 S.W.2d at 779; see also

Tex. R. Civ. P. 21a (“A certificate by a party or an attorney of record, or the return

of an officer, or the affidavit of any person showing service of a notice shall be

prima facie evidence of the fact of service.”). Common sense dictates that a party

claiming a notice problem should have informed the court of his or her change of

address. Hitt cannot satisfy Craddock. Appellee contends Appellant was

consciously indifferent in just disappearing. Appellee contends Hitt should have

changed his address with the court and communicated with his attorney. .

                                          20
      B.     The uncontroverted evidence established that if Hitt did not receive
             notice of the November 10, 2015 hearing, it was his own
             conduct that caused him not to be notified.

      The notice was properly sent to Mr. Hitt’s last known address Hitt at the

Muirfield Address. (CR 59, 80, 84; Apx. Tab 3.) If Hitt did not reside at or receive

mail at the Muirfield Address any more, then why did he not notify the court of

his change of address? (CR 78-80; Apx. Tab 3.)

             Zarauskas’s counsel correctly argued that Hitt had waived the right to

notice because he did not provide an updated address to the trial court. (4 RR 5-

7.) Hitt had a duty to apprise the trial court of his correct and current address.

Tex. Civ. Prac. & Rem. Code 30.015. Appellant cites Mathis, 166 S.W.3d at 746

insisting that new trial should have been granted where any failure to apprise the

court of defaulting party’s last known address resulted from a mistake or

accident. However, Hitt just did not comply with the Rule to notify the court of

change of address. There was no mistake. Hitt did not do his part.

      Hitt contends that (1) he was unaware that his attorney had withdrawn; (2)

he did not consent to the withdrawal; and (3) somehow his attorney (a very

reputable one) failed to provide the trial court with Hitt’s correct and current

address in accordance with Rule 10 of the Texas Rules of Civil Procedure. (CR 47-

50, 79-81; Apx. Tab 3.) See Tex. R. Civ. P. 10. Following Hitt’s logic, everyone is at

                                          21
fault but Mr. Hitt. Mr. Hitt knew he was not communicating with his own

attorney. He just disappeared to another city, if he moved at all, and did not

inform anyone of his new address.

      Based on the evidence presented, there is a presumption that the Notice

of Hearing was properly sent or received. See Mathis, 166 S.W.3d at 745; see also

Cliff, 724 S.W.2d at 780. A post-answer default judgment is valid if the

defendant received notice of a trial setting—and Hitt did at his last known

address. He should have told the court his new address. The trial court did not

abuse its discretion in failing to grant Hitt’s motion for new trial. See $429.30 in

U.S. Currency, 896 S.W.2d at 365.

      C.     Even if the Notice of Hearing did not comply with Tex. R. Civ. P.
             245, it would not have made a difference since Mr. Hitt did not
             apprise the court of his new address.

      The Notice of Hearing if it failed to comply with Rule 245 of the Texas Rule

of Civil Procedure, which requires that parties in a contested case be given no less

than 45 days’ notice of the first trial setting, is not a causative factor unless the

court has a good address. Hitt did not give the court his new address; so he

cannot really complain that he did not get the full benefit of Tex. R. Civ. P. 245.

      In this case Rule 245 in a contested case cannot help someone who does

not notify the court of his change of address. Appellee submits that appellant

                                           22
cannot pick and choose what rules to comply with. If he wanted the benefit of

notices, then he had to notify the court of his new address, if any.

      D.     Appellant did not meet the Craddock elements.

      As Appellee has said, ad nauseam throughout this brief, if Hitt did not

receive notice of the hearing, it is his own doing. He consciously or recklessly

failed to notify the court of his new address. The trial court did not abuse its

discretion by not granting Hitt’s motion for new trial.

             1.    The post-answer default judgment should not be set aside.
                   The Craddock elements were not established

      In Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939), the Texas

Supreme Court held that a default judgment should be set aside when the

defaulting party establishes that: (1) its failure to answer or appear was not

intentional or the result of conscious indifference; (2) that it has a meritorious

defense; and (3) that the granting of a new trial will not operate to cause delay or

injury to the plaintiff. Craddock, 133 S.W.2d at 126; see also Ivy v. Carrell, 407

S.W.2d 212, 213 (Tex. 1966) (holding that Craddock rule applies equally to post-

answer default judgments). Appellant has to establish all three elements of

Craddock.

             2.    Hitt’s non-appearance was intentional or the result
                   of conscious indifference

                                          23
      Hitt should have kept the court apprised of his address. Appellee contends

Hitt basically disappeared, did not communicate with his attorney and did not

notify anyone of his new address, if any.

             3.    Hitt did not set up a meritorious defense

      Even if Hitt demonstrated the existence of a meritorious defense, he did

not comply with the first element of Craddock.

             4.    Hitt did not demonstrate that granting a new trial would not
                   result in prejudice or delay, nor did Hitt reimburse Appellee
                   for expenses.

      Hitt did not satisfy the first element of Craddock. As to the third element,

he simply alleged that granting the motion for new trial would not cause a delay

or otherwise prejudice Zarauskas. Hitt took no responsibility for his own failure to

notify the court of his change of address. He blames everyone but himself.

      Because Hitt did not establish each and all of the Craddock elements, his

attempt to attack the trial court’s decision must fail. The trial court did not abuse

its discretion. The decision of the trial court should be affirmed.




                                         24
                                    CONCLUSION

      Appellee Frank Zarauskas prays that the Court:

      1)     affirm the trial court’s judgment; and

      2)     award any other relief to which Appellee Frank Zarauskas is entitled.

                                        Respectfully submitted,

                                        By/s/Charles W. King
                                        Charles W. King
                                        101 S. Park
                                        San Angelo, Texas 76901
                                        Telephone: (325) 227-6536
                                        Facsimile: (325) 227-6537
                                        Email: charles@charleskinglaw.com
                                        ATTORNEY FOR APPELLEE
                                        FRANK ZARAUSKAS

                              CERTIFICATE OF SERVICE

      I hereby certify that on June 16, 2016, a true and correct copy of the
foregoing document was served by electronic service to counsel of record.

Michael A. Yanof (appellate counsel)
Cassie J. Dallas (appellate & trial counsel)
Jason R. Jobe (trial counsel)
Thompson, Coe, Cousins & Irons, L.L.P.
700 North Pearl St., 25th Floor
Dallas, Texas 75201
Telephone: (214) 871-8200
Facsimile: (214) 871-8209
Attorneys for Appellant
                                               /S/Charles W. King
                                               Charles W. King
                                               Attorney for Appellee

                                          25
                           CERTIFICATE OF COMPLIANCE

       I certify that this Brief contains 4,307 words, not including the parts
excluded by Tex. R. App. P. 9.4(i)(1). Accordingly, it complies with Rule
9.4(i)(2)(B).


                                               /s/ Charles W. King
                                               Charles W. King




                                          26
                         APPENDIX TO BRIEF OF APPELLEE


Judgment (CR 60-61)                                      Tab 1

Order Denying Defendant Bruce Hitt’s Motion
To Set Aside Post-Answer Default Judgment
And Motion for New Trial (CR 131)                        Tab 2

Affidavit of Bruce Hitt (CR 78-83)                       Tab 3




                                      27
                                          NO. 14C084l

FRANK ZARAUSKAS D/B/A                                 §      IN THE COUNTY COURT AT lAW
BOONDOCICS BAR & GRIU                               §
  Plaintiff                                         §
                                                    §
vs.                                                 §        OF
                                                    §
BRUCEHm                                             §
 Defendant                                          §                                            r::J

                                                                                                 0
                                                                                                ::r.:     :::0
                                                                                                         ~

                                          JUDGMENT
                                                                                            '!."         ('"")
                                                                                           C)            0
                                                                                            .            ~
                                                                                                 )      ,.._,
        On this~ day of November, 2015, the above case was called to trial on the merits; the-
Plaintiff appeared in person/by his attorney, Charles W. King. The Defendant although having
been duly notified failed to appear and made default.

        The Court next took Judicial Notice of the Pleadings and other papers on file in this
cause; the Court also finds that Requests for Admissions were propounded to the Defendant on
or about July 23, 2015 and answers were due in 30 days. The Court further finds that the
Defendant did not answer the Requests for Admissions and that the Requests for Admissions
are deemed admitted so the Defendant is liable to the Plaintiff for the allegations in Plaintiffs
First Amended Original Petition and liable to the Plaintiff for damages.

       The Court further finds that the Plaintiff should have Judgment against Defendant for
the sum of$/ r u_o tl(). uo .
                7
       IT IS THEREFORE ORDEREfl. ADJUDGED AND DECREED that Plaintiff have judgment
against Defendant for the sum of / rcJ oou. JJiJ together with post Judgment interest at the
maximum lawful rate from the date of judgment until paid and costs of court, for which let
execution issue if not timely paid.

        IT IS FURTHER ORDERED that Defendant and Counter Plaintiff take nothing against
Plaintiff and Counter Defendant by way of any Counterdaims, if any, that remain pending in
this cause or the companion landlord tenant case.

       Signed this L!!.._day of November, 2015.



                                  ~~-      Judge Presiding




                                              TAB 1                                                     60
Approved:




Charles W. King
TBN.11436525
Attorney for Plaintiff/Counter Defendant,
Frank Zarauskas d/b/a Boondocks Bar & Grill




                                     TAB 1    61
                                        CAUSE NO. l4C084L

FRANKZARAUSKAS D/B/A                              §          IN THE COUNTY COURT AT LAW
BOONDOCKS BAR & GRILL                             §
     Plaintiff,                                   §
                                                  §
v.                                                §
                                                  §
BRUCEHITT                                         §
     Defendant.                                   §

                                  "Gitl~~
                     ORDER OS QIITRIG DEFENDANT BRUCE HITT'S
                MOTION TO SET ASIDE POST-ANSWER DEFAULT JUDGMENT
                            AND MOTION FOR NEW TRIAL

            On the 21st day of January, 2016, the Court considered Defendant Bruce Hitt' s Motion to

Set Aside Post-Answer Default Judgment and Motion for New Trial seeking to set aside the

Judgment entered in this cause on November 10, 201 5. Having considered Defendant's motion,
                                                                                             €-
any response by Plaintiff, and the arguments of counsel, the Court finds that the motion is well
                    IJ£11/J:G_~
~- awhould be Qe\iffE(). ~
       It is therefore, ORDERED, ADJUDGED, AND DECREED that Defendant Bruce Hitt's
                                                                              0~N.C~4'A>
Motion to Set Aside Post-Answer Default Judgment and Motion for New Trial is 6£1\if'WJII. • ~

     ~T:A1 Cemt fwtiM oreers a ttew trial in dre httetest ofjustlee mid Ul'ltMss.   e_


            SIGNED this~ day of January, 2016.



                                                 JUDGE PRESIDING




ORDER 8" +I ili'L DEFENDANT BRUCE HITT'S MOTION TO                                          PAGEl
SET ASIDE POST·ANSWER DEFAULT JUDGMENT AND MOTION FOR NEW TRIAL
2353356vl
11131.002
                                                 TAB 2                                           131
                                                                                   Filed for Record
                                                                                   12/9/2015 11 :33:37 AM
                                                                                   Elizabeth McGill , County Clerk
                                                                                   Tom Green County, Texas
                                                                                   14C084-L
                                    CAUSE NO. l4C048L                              ~:;~~w~~k~~n
                                                                                   Deputy
FRANK ZARAUSKAS D/ B/A                         §          IN THE COUNTY COURT AT LAW
BOONDOCKS BAR & GRILL                          §
       Plaintiff,                              §
                                               §
v.                                             §
                                               §
BRUCE HITT                                     §
       Defendant.                              §              TOM GREEN COUNTY, TEXAS


                               AFFIDAVIT OF BRUCE HITT

STATEOFTEXAS                         §
                                     §
COUNTY OF TOM GREEN                  §

        BEFORE ME on this day personally appeared Bruce Hitt, who, upon his oath, deposed
and stated:

      l.      "My name is Bruce Hitt. I am over 18 years of age, have never been convicted of
      a felony or a misdemeanor involving moral turpitude, and am fully competent to testify to
      the matters and facts stated in this Affidavit. All the facts set forth in this Affidavit are
      within my personal knowledge and are true and correct.

      2.     I am a Licensed Real Estate Broker in the State of Texas. I am also in the business
      of buying, improving, and selling real estate for investment purposes.

      3.      Because of the nature of my business, my residence changes frequently. I
      typically live at the same physical location for relatively short periods of time between
      approximately 12 to 36 months. As a result, I consistently maintain the same Post Office
      Box address to receive mail ("P.O. Box Address") .

      4.       I am the former owner of the residential property located at 4730 Muirfield
      Avenue, San Angelo, Texas 7690 I ("Muirfield Address"). I purchased the property
      in 20 I 2 as an investment and lived at the property while it was being remodeled. I moved
      from that address and sold the property in late January 2015.

      5.      While I was living at the Muirfield Address, I never set up a mail box at that
      address, and I did not use the property as my mailing address. In any event, I have not
      lived at the Muirfield Address since late January 201 5.




                                             TAB 3                                              78
6.      My mother is the current owner and resident of the residential property located at
1226 Coventry Lane, San Angelo, Texas 76904 (" Coventry Address"). I do not reside at
this address, but 1 have on occasion received mail at the Coventry Address. The Coventry
Address also appears on my driver' s license.

7.     At all relevant times, I have maintained .as my mailing address and regularly
checked the "P.O. Box Address."

8.      I am the Defendant in the above referenced lawsuit, styled Frank Zarauskas d/b/a
Boondocks Bar & Grill v. Bruce Hitt, No. 14C048L; in the Country Court at Law, Tom
Green County, Texas (the " Lawsuit" ). As a result I am familiar with the underlying fact s
of the case.

9.     I am the former owner of a commercial property located at 3314 F.D. Road. San
Angelo, Texas 76904 (" Restaurant Property"), which was operated for approximately one
year by Zarauskas as Boondocks Bar & Grill.

I 0.    On or about March 6, 2014, Frank Zarauskas ("Zarauskas") filed the Lawsuit
against me related to an alleged oral lease agreement regarding the Restaurant Property.

11.    On April 8, 2014, I, by and through my then counsel of record Jeffrey Lisson
("Lisson"), answered the Lawsuit. 1 generally denied each and every allegation in
Zarauskas 's Petition, asserted the affirmative defense of the Statute of Frauds, and
counterclaimed for unpaid rent on the Restaurant Property.

12.     Although the terms of the alleged oral lease agreement are disputed, 1t 1s not
disputed that Zarauskas failed to pay rent as it came due. As of April 8, 2014, Zarauskas
had not paid rent since September 2013. The failure to pay was a material breach of the
lease agreement and relieved me of any of any obligation to perform under the alleged
oral lease agreement.

13.     The Lawsuit was administratively closed on June 24, 2014 . After that time, I
believed that Zarauskas intended to abandon his claims related to the Restaurant Property
in the Lawsuit.

14.     Following the administrative closing of the Lawsuit, I moved in approximately
late June or early July 2014 to San Antonio, Texas. During this time, I continued to
maintain and regularly check my Post Office Box address as my mailing address.

15 .   Unbeknownst to me, the Lawsuit was re-opened.

16.     Unbeknownst to me, and without my consent, Lisson filed a motion to withdraw
as my attorney, citing an inability to communicate with me. Lisson apparently attempted
to serve his motion to withdraw on me at the Coventry Address. I do not recall or have a
record of having received any telephone calls from Lisson.




                                      TAB 3                                             79
            17.    As reflected in the Court' s Rcg1ster of Actions, the notice of hearing on the
            motion to withdraw, which was apparently sent to the Muirfield Address, was returned.'

            18.    As further reflected in the Court 's Register of Actions, Zarauskas electronically
            filed Requests for Admissions on July 23 , 2015 . The Certificate of Service attached to
            these Requests states that it was apparently sent to the Muirfield Address by Certified
            Mail, Return Receipt Requested and Regular U.S. Mail.

            19.    1 did not reside or accept mail at the Muirfie1d Address at the time Zarauskas
            purported to serve me with the Request for Admissions. 1 never received service of the
            Request for Admissions.

            20.    As further reflected in the Court 's Register of Actions, on October 16, 2015, the
            Court issued a Notice of Hearing to be held on November I 0, 2015 . The Notice of
            Hearing reflects that it was purportedly served on me at the Muirfield Address.

            21 .   I did not reside or accept mail at the Muirfie1d Address at the time the Notice of
            Hearing was purportedly served.

            22 .   Further, the Register of Actions reflects that the Notice of Hearing was returned
            as undeliverable.

            23.     I never received service of the Notice of Hearing and did not learn about the
            hearing or the November 10, 2015 Judgment until on or about November 14,2015, when
            several friends told me that a judgment had been entered against me.

            24.     My failure to attend the November 10, 2015 Hearing was not intentional and not
            the result of conscious indifference. Rather I did not appear at the hearing because I never
            received the Notice of Hearing.

            25 .   The motion for new trial filed on my behalf is not being sought for the purposes
            of delay. To my knowledge, Zarauskas will not be prejudiced by the granting of a new
            trial.

            FURTHER, AFFIANT SAYETH NAUGHT."




1
    A true a nd correct copy of the Register of Actions is attached as Exhibi t A- 1.




                                                            TAB 3                                    80
                                                             //
                                                         /
DATED this_ day of December,                       201y
                                                     l       BRUCEHITI


SUBSCRIBED AND SWORN TO BEFORE ME this                                ~day of December, 201   .


       .,,•'$-t't:(:•,,
      §"R-W::?'=
                          CH.AUNTEl D. RUBALCABA
                   Notary Put>Uc. Slate of Texas
                                                             ~c~~l{a~
      ~ ..\~/.. '§
      "'>~it-.;;'i~.f
         '''"'"''"\
                     Wr( Commission Expires
                              June Ol, 2017
                                                             Cjw rA n];s; I D ~a Ic o.JJo.__
                                                             Printed Name o Notary




AFFIDAVIT OF BRUCE HITI                                                                           PAGE4
2327770vl
11131.002



                                                              TAB 3                                       81
                                                                                                                                              Page I of2




                                                         REGISTER OF ACTIONS
                                                                 CAsE :-<o. 14('084-L

FRANK ZARAUSKAS d/b/a BOONDOCK S BAR & GRILL vs. BRUCE HITT §                                               Case Type·     Suits on Debt
                                                                             §                               Date Filed:   0310612014
                                                                             §                                 Location:   County Court at Law
                                                                             §                    File Custody/Location:   County Clerk's Office
                                                                             §

                                                              RE.I...Al"ED CA!:iE INFORMATION

Related Cases
  t4C 162-L (other)


                                                                   t'AMTY (Nl'ORMATION

                                                                                                                                Lead Attorneys
Defendant       HITT, BRUCE                                                                                                     Cassie J . Dallas
                 4730 MUIRFIELD AVE                                                                                              Retained
                 SAN ANGELO. TX 76901                                                                                           214 -871-8200(W)


Plaintiff       ZARAUSKAS, FRANK Doing Business                                                                                 CHARLES W. KtNG
                As BOONDOCK'S BAR & GRILL                                                                                        Retained
                 1106 AMBERTON PKWY                                                                                             325-227-6536(W)
                 SAN ANGELO. TX 76901


                                                             J.o:vuns & OK.DENS Ol·· nu: Couw:r
            DISPOSITIONS

            I
1111012015 Default Judgment (Judicial Officer: Nolen. Ben)


            OT!D;N EVt:NTS AND HEARINGS
0310612014 Original Peti tion
              & REQUEST FOR T R. 0 .. WITH AFFIDAVIT
03/0712014 Notice
              OF HEARING ON TEMP. RESTRAINING ORDER SET FOR 04-01-2014 AT 1:30PM
03110/201 4 Citation By Personal Service
              TO CONSTABLE FOR SERVICE
0311 012014 Citation
              BRUCEHITT
               HITT, BRUCE                                         Served      0311812014
                                                                   Returned    03119/2014
03/19/2014 Notice
              OF APPEARANCE
0410112014 Temporary Restraining Order (1 :30PM) (Judicial Officer Nolen, Ben)
0410212014 Order
            - DENYING REQUEST FOR TEMPORARY RESTRAINING ORDER/INJUNCTION II SIGNED BY JUDGE NOLEN
04/0812014 Answer
              DEFENDANT'S ORIGINAL ANSWER AND COUNTERCLAIM
04/16/2014 Am ended
              PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION
06/03/2014 Order
              TRANSFER REGISTRY FUNDS FROM JP2 CASE#C14-082J2 AND CCL CASE 14C162-L TO THIS CAUSE
06/05/2014 COpy Sent
              TO BOOKKEEPER FOR TRANSFER
06124/2014 Order
              ADMINISTRATIVE CLOSING ORDER - WITHOUT PREJUDICE, UNTIL FURTHER ACTION IS INITIATED BY THE PARTIES
07/21/2014 ~
              PLAINTIFF'S CERTIFICATE OF WRITTEN DISCOVERY DIRECTED TO DEFENDANT BRUCE HITT
09/2412014 Certificate
              PLAINTIFF'S CERTIFICATE OF WRITTEN RESPONSES TO DEFENDANTS REQUESTS FOR DISCLOSURE
11112/2014 Letter
              LETTER TO JUDGE NOLEN'S OFFICE FROM A TTY-CHARLES W KING
0212612015 Motion
              Motion (No Fee)- TO WITHDRAW
02/2612015 Proposed Order
              Proposed Order
0310312015 Notice
              OF HEARING ON MOTION TO WITHDRAW SCHEDULED FOR MARCH 12, 2015AT 9.00A.M.- MAIL SENT TO BRUCE HITTWA S
              RETURNED
03112/2015 Motion to Withdraw (9:00AM) (Judicial Officer Nolen. Ben)
0311312015 Order
              ALLOWING COUNSEL TO WITHDRAW SIGNED BY JUDGE NOLEN
07/231201 5 REQUEST
              FOR ADMISSIONS
10/16/2015 Notice




http://odysseypa.co.tom-green.tx.us/CaseDetail.aspx?CaseiD=946772                                                                               12/8/2015
                                                                         TAB 3                                                                              82
                                                                                                                         Page 2 of2


             OF HEARING ON MERTIS 11-10-1 5 AT 9:00AM Ill NOTICE TO BURGE HITT RETURNED UNDELIVERABLE
1111012015 Merits (9:00AM) (Judicial Off~eer Nolen, Ben)
11/1012015 Judgment
             JUDGMENT
1210412015 Notice
             Notice of Appearance or Counsel


                                                            FINANCIAL lNFOIU\tA T!ON




             Defendant HITI, BRUCE
             Total Financial Assessment                                                                                        36 00
             Total Payments and Credits                                                                                        36.00
             Balance Due as of 12108/2015                                                                                       0.00

11 /3012015 Transaction Assessment                                                                                              36.00
1113012015 Payment                    Receipt# 2015-2566                               HITI, BRUCE                            (36.00)




             Plaintiff ZARAUSKAS. FRANK
             Total Financial Assessment                                                                                       364.00
             Total Payments and Credits                                                                                       364 00
             Balance Due as of 12108/2015                                                                                       0.00

03/06/2014   Transaction Assessment                                                                                            235.00
03/0612014   Transaction Assessment                                                                                              4.00
03/06/2014   Transaction Assessment                                                                                             75.00
03/06/2014   Payment                  Rece•pt # 2014-0522                              KING. CHARLES W                       (314.00)
04/0812014   Transaction Assessment                                                                                             50.00
0410812014   Payment                  Receipt# 2014 -0806                              CARTER, BOYD, LISSON & HOHENSEE        (50 00)




http://odysseypa.co.tom-green.tx.us/CascDetail.aspx?CaselD=946772                                                        12/8/2015
                                                                    TAB 3                                                               83
