                                                                             ACCEPTED
                                                                         05-18-00168-CV
                                                               FIFTH COURT OF APPEALS
                                                                         DALLAS, TEXAS
                                                                       6/4/2018 11:42 AM
                                                                              LISA MATZ
                                                                                  CLERK

               ORAL ARGUMENT REQUESTED

                      No. 05-18-00168-CV                 FILED IN
                                                  5th COURT OF APPEALS
                                                      DALLAS, TEXAS
                 IN THE COURT OF APPEALS          6/4/2018 11:42:00 AM
                                                        LISA MATZ
             FOR THE FIFTH DISTRICT OF TEXAS              Clerk


                         AT DALLAS
_____________________________________________________________

                    WARREN GATTENBY
                        Appellant

                               vs.

                TIB-THE INDEPENDENT BANK
                             Appellee
_____________________________________________________________
              On Appeal from the 193rd District Court
                       Dallas County, Texas
                Trial Court Cause No. DC-17-12078
_____________________________________________________________

                     APPELLANT’S BRIEF
_____________________________________________________________

                               Robert M. Clark
                               State Bar No. 04298200
                               Eddleman & Clark
                               4627 N. Central Expressway
                               Dallas, Texas 75205-4022
                               (Voice) 214.528.2400
                               (Fax) 214.528.2434
                               RMC@RobertMClark.net

                               ATTORNEY FOR APPELLANT




                                                                     1
                     IDENTITY OF PARTIES AND COUNSEL

         In accordance with Rule 38.1 of the Texas Rules of Appellate

Procedure, Appellant Warren Gattenby certifies that the following is a

complete list of all parties with any interest in this Appeal from a Default

Judgment by the Hon Carl Ginsberg, Presiding Judge of the 193rd Judicial

District Court.


Appellant                      WARREN GATTENBY

Appellant’s Attorney           ROBERT M. CLARK
                               Eddleman & Clark
                               4627 North Central Expressway
                               Dallas, Texas 75205-4022
                               (Voice) 214.528.2400
                               (Fax) 214.528.2434
                               RMC@RobertMClark.net



Appellee                       TIB-THE INDEPENDENT BANK

Appellee's Attorney            Christopher R. DeLoney
                               The DeLoney Law Group
                               6440 N. Central Expressway, Suite 850
                               Dallas, TX 75206
                               (voice) 214.741.7911
                               (fax) 214.573.7970
                               chris@deloneylawgroup.com




Brief of Appellant - Page ii
                                                                               2
                          REQUEST FOR ORAL ARGUMENT


         Pursuant to Rule 39.7 of the Texas Rules of Appellate Procedure,

Appellant Warren Gattenby requests oral argument in this case.




Brief of Appellant - Page iii
                                                                            3
                                      TABLE OF CONTENTS

Identity of Parties and Counsel ............................................................... ii

Request for Oral Argument..................................................................... iii

Table of Contents .................................................................................... iv

Index of Authorities:
    Case Law......................................................................................... vi
    Statutes ............................................................................................ vi

Statement of the Case ............................................................................. 1

Statement of Jurisdiction ........................................................................ 3

Issues Presented:
Issue 1 ..................................................................................................... 4
    Sub-issue 1a ..................................................................................... 4
    Sub-issue 1b ..................................................................................... 4
    Sub-issue 1c ..................................................................................... 4

Statement of the Facts ............................................................................. 5

Summary of the Argument ..................................................................... 9

Argument and Authorities:

I.    The District Court abused its discretion in finding that a new
      trial was not warranted under Craddock.......................................... 10

II. The Elements or Prongs of the Craddock Test
    A. First Prong. The District Court Correctly Found that the
       First Element of the Craddock Test was Satisfied .................... 12
    B. Gattenby Satisfied the Second Element of the Craddock Test .. 16
    C. Gattenby Satisfied the Third Element of the Craddock Test ..... 20

Prayer for Relief ...................................................................................... 21




Brief of Appellant - Page iv
                                                                                                                  4
Signature Page ........................................................................................ 22

Certificate of Service .............................................................................. 22

Certificate of Compliance ....................................................................... 22


Index of Appendix .................................................................................. 22

Appendix No. 1: Default Judgment of December 19, 2017 .................. 24

Appendix No. 2: Warren Gattenby’s January 11, 2018
   Motion for New Trial after Default Judgment.................................. 26




Brief of Appellant - Page v
                                                                                                             5
                                   INDEX OF AUTHORITIES

Cases
Angelo v. Champion Restaurant Equip. Co., 713 S.W.2d 96, 98
  (Tex. 1986) ................................................................................................ 21
Boyes v. Morris Polich & Purdy, LLP, 169 S.W.3d 448, 453–54
  (Tex. App.– El Paso 2005, no pet.) ........................................................... 20
Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.--Fort Worth
  2001, pet. denied) ...................................................................................... 18
Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 276
  (Tex. 1979) ................................................................................................ 12
City of Laredo v. Montana, 414 SW3d 731, 736 (Tex. 2013) ...................... 19
Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987) ..................................... 21
Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450
  (Tex. 1996) ................................................................................................ 12
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126
  (Tex. 1939) ........................................................................................ 4, 9, 11
Diagnostic Clinic of Longview, P.A. v. Neurometrix, Inc., 260
  S.W.3d 201, 205 (Tex. App.—Texarkana 2008, no pet.) ......................... 11
Director, State Employees Workers' Comp. Div. v. Evans, 889
  S.W.2d 266, 268–69 (Tex. 1994) .............................................................. 13
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 927–928
  (Tex. 2009) ................................................................................................ 16
Eaves v. Unifund CCR Partners, 301 S.W.3d 402, 405 (Tex. App.-
  El Paso 2009, no pet.) ................................................................................ 18
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762, 764 (Tex. 2012) .............. 19
Evans, 889 S.W.2d at 270 ....................................................................... 16, 21
Fidelity & Guaranty Ins. Co. v. Drewery Construction Co., 186
  S.W.3d 571 (Tex. 2006) ................................................................ 13, 14, 16
Gardner v. Jones, 570 S.W.2d 198, 201 (Tex. Civ. App.—Houston
  [1st Dist.] 1978, no writ) ........................................................................... 19
Hock v. Salaices, 982 S.W.2d 591, 593 (Tex. App.–San Antonio 1998,
  no pet.) ....................................................................................................... 11
Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) ......................................... 16
Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.–Corpus Christi 1990,
  writ denied) ................................................................................................ 14
Jaco v. Rivera, 278 S.W.3d 867, 873 (Tex. App.—Houston [14th Dist.]
  2009, no pet.) ............................................................................................. 19



Brief of Appellant - Page vi
                                                                                                                        6
Jaramillo v. Portfolio Acquisitions, LLC, 2010 Tex. App. LEXIS 2219
  (Tex. App. – Houston [14th Dist.] 2010, no pet.) ..................................... 18
Kinsel v. Lindsey, 526 S.W.3d 411(Tex. 2017) ............................................ 19
Levine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 168
  (Tex. 2008) ................................................................................................ 13
Long v. Griffin, 442 S.W.3d at 255............................................................... 20
Miller v. Miller, 903 S.W.2d 45, 47 (Tex. App.–Tyler 1995, no writ) ........ 12
Moir v. Citibank (S. Dakota), N.A., 2010 Tex. App. LEXIS 4870 (Tex.
  App. – Dallas 2010, no pet.)...................................................................... 18
Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.--Dallas
  2005, no pet.) ............................................................................................. 18
Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.–San Antonio
  1996, no writ) ............................................................................................ 12
Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex.1984)...................... 10, 13
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45
  (Tex. 1993) ................................................................................................ 17
Titan Indem. Co. v. Old S. Ins. Group, Inc., 221 S.W.3d 703, 708 (Tex.
  App.–San Antonio 2006, no pet.) .............................................................. 11
Torrington Co. v. Stutzman, 46 S.W.3d 829, 842 (Tex. 2000)..................... 12
Walker v. Guitierrez, 111 S.W. 3d 56, 64 (Tex. 2003)................................. 13


Statutes
Texas Government Code, §22.201(f) ............................................................. 3




Brief of Appellant - Page vii
                                                                                                                    7
                                      No. 05-18-00168-CV

                                   IN THE COURT OF APPEALS

                            FOR THE FIFTH DISTRICT OF TEXAS

                            AT DALLAS
_____________________________________________________________

                                     WARREN GATTENBY
                                         Appellant

                                            vs.

                   TIB-THE INDEPENDENT BANK
                                Appellee
_____________________________________________________________
                 On Appeal from the 193rd District Court
                          Dallas County, Texas
                   Trial Court Cause No. DC-17-12078
_____________________________________________________________

                                   STATEMENT OF THE CASE

TO THE HONORABLE JUDGE OF SAID COURT:

        Appellant Warren Gattenby respectfully submits his Brief on the Merits and

petition this Court to grant review of the default judgment of the 193rd District

Court, Dallas County, Texas, regarding the issues presented concerning the

requirements for vacating and setting aside a default judgment under the Craddock

test and in support thereof, Petitioners respectfully show the Court the following:




Appellant’s Brief - Page 1 of 23

                                                                                      8
Nature of the case:

        This case involves the trial court’s refusal to set aside a default judgment in

a breach of contract case, on the defendant’s motion for new trial.



Trial Court:

        The 193rd Judicial District of Dallas County, Texas, the Honorable Carl

Ginsberg presiding.



Trial Court’s Disposition:

        On December 19, 2017, a no-answer default judgment was rendered in favor

of TIB-THE INDEPENDENT BANK awarding $16,935.87 as principal amount

due and $3,000 as attorney’s fees. On January 11, 2018, Gattenby filed a motion

for new trial after default judgment. The Trial Court held a hearing on January 22,

2018, and entered an order denying Gattenby’s motion on January 22, 2018.




Appellant’s Brief - Page 2 of 23

                                                                                      9
                              STATEMENT OF JURISDICTION

        This Court has jurisdiction over this matter pursuant to sections 22.201(f) of

the Texas Government Code for the following reasons:

        This appeal is from the 193rd Judicial District Court of Dallas County,

Texas.




Appellant’s Brief - Page 3 of 23

                                                                                    10
                                   ISSUES PRESENTED

        Issue 1:          The Trial Court Abused its Discretion in Denying Gattenby’s

Motion for New Trial because He Satisfied All of the Requirements of Craddock v.

Sunshine Bus Lines, Inc.

        Sub-issue 1a: The Trial Court Correctly Concluded that Gattenby’s failure to

answer was not intentional, or the result of conscious indifference, but was due to a

mistake or accident.

        Sub-issue 1b: The Trial Court Erred in Concluding that Gattenby’s evidence

of a meritorious defense was conclusory. There is evidence disputing TIB’s

standing to bring this claim; there is evidence disputing the amount of damages

even if it does own the claim; and there is no evidence supporting the attorney’s

fees awarded to TIB in the Trial Court or on appeal.

        Sub-issue 1c: There was testimony that granting a new trial would occasion

no delay or otherwise work an injury to the plaintiff, and TIB never attempted to

dispute that.




Appellant’s Brief - Page 4 of 23

                                                                                   11
                                   STATEMENT OF FACTS

        TIB-The Independent BankersBank [hereinafter “TIB”] alleged that Warren

Gattenby opened credit card account number ending in -0108. TIB further alleged

that Gattenby used or authorized use of the account. TIB alleged that it sent

monthly statements to Gattenby, which statements itemized the transactions,

charges, debits, credits, and/or payments to the account. TIB alleged that Gattenby

ceased making payments on or about April 12, 2014, and that there was an unpaid

balance of $16,935.87. It asserted causes of action for both breach of contract and

account stated. (CR8). TIB also sought $3,000 attorney’s fees in obtaining a

judgment, $1500 if the bank successfully defends a pre-appeal attack on any

judgment it obtained, $10,000 from an unsuccessful appeal to the Court of

Appeals, and an additional $10,000 for an unsuccessful appeal to the Texas

Supreme Court. (CR9).

        The record shows that Gattenby was served on October 4, 2017 (CR 12),

which would have made his answer due on October 30, 2017. The record shows

that no answer was filed by that date.

        However, the record also shows that no hearing was held to prove up the

defendant’s default. (CR 5-6). Instead, TIP filed a motion for default judgment and

attached affidavits to support damages and attorney’s fees. (CR 15-24). The sole

evidence in support of damages was a business records affidavit by Darlene Pence,


Appellant’s Brief - Page 5 of 23

                                                                                 12
which stated that she worked for TIB, but purported to authenticate a credit card

bill issued by Town North Bank in the name of Warren Gattenby. There was no

evidence explaining any connection between TIB and Town North Bank. (CR 17-

18).

        The sole evidence of attorney’s fees is an affidavit by Christopher Deloney.

The affidavit includes no information about Mr. Deloney’s experience. It states

that his hourly rate was $300.00, but includes no information about the hours spent

or expected to be spent subsequent to the entry of judgment. It states that he took

the case on a contingent fee, and includes no billing records or time information.

The affidavit merely states that a reasonable fee for services prior to judgment

were $3,000.00, for post-judgment services would be $1500.00, for appeal to the

court of appeals and $10,000 for appeal to the Supreme Court. There is no

explanation at all for why these particular fees are reasonable. (CR 19-20).

        The district court then entered a default judgment in favor of TIB for all of

the amounts requested. (CR 26).

        Gattenby filed a motion for new trial which set up a meritorious defense.

(CR 27). The defenses were supported by the affidavit of Warren Gattenby, who

stated that that he had never opened an account with TIB, that he did not owe (a

nonparty) Town North Bank the amount claimed on the statement (CR35-36).




Appellant’s Brief - Page 6 of 23

                                                                                   13
Gattenby’s attorney testified that the file contained no evidence of any assignment

of the claim to TIB. (CR32).

        The motion also asserted that Gattenby’s failure to timely file an answer was

due to a mistake, which was supported by the affidavits of attorney Robert M.

Clark, and his wife, Kimberly Clark. (CR 32-34). Robert Clark stated in his

affidavit that the failure to timely file an answer was his fault. Gattenby had been

served on October 4, 2017 (which would make his answer due on October 30,

2017). Gattenby met with Clark at Clark’s office on October 18, 2017, but did not

retain him until he delivered a retainer to Clark’s wife at Clark’s personal residence

on October 19, 2017. (CR31). The papers relating to Gattenby’s case were then

inadvertently paperclipped to the papers in another file, and as a result, no file was

opened for Gattenby, and no answer was filed. (CR32). Kimberly Clark confirmed

in her affidavit that she had accidentally paperclipped the Gattenby papers with

papers from another file. (CR 34).

        Finally, Gattenby’s motion for new trial asserted that the granting of a new

trial would not prejudice or otherwise injure TIB. (CR 29).

        A hearing was held on the Motion on January 22, 2018 (RR1). The trial

court heard no additional evidence at the hearing, but only legal argument. (RR 4-

12).




Appellant’s Brief - Page 7 of 23

                                                                                    14
        The trial court conceded that a mistake had occurred and that the failure to

answer was not due to conscious indifference. (RR 4).

        However, the court proceeded to declare Gattenby’s evidence of a

meritorious defense to be conclusory, and denied the motion. (RR 12). This,

despite plaintiff’s counsel’s admission that he had failed to allege or prove the

connection between TIB and Town North Bank. (RR 9).

        An order denying Gattenby’s Motion for New Trial was signed on January

22, 2018, (CR 45), and a Notice of Appeal was filed February 19, 2018 (CR46).




Appellant’s Brief - Page 8 of 23

                                                                                  15
                              SUMMARY OF THE ARGUMENT

        The Trial Court abused its discretion in denying Gattenby’s motion for new

trial. It is well-established that a Trial Court abuses its discretion in not setting

aside a default judgment when the defendant has satisfied the three requirements

set forth in Craddock v. Sunshine Bus Lines, Inc.: (1) that the defendant’s failure

to answer was not intentional, or the result of conscious indifference, but was due

to a mistake or accident; (2) that there is a meritorious defense; and (3) that

granting a new trial will occasion no delay or otherwise work an injury to the

plaintiff. The trial court conceded that the first element had been met, but held that

Gattenby’s testimony setting forth a meritorious defense was conclusory. The third

element was never contested.

        Gattenby’s testimony that he had never opened an account with TIB, that he

did not owe Town North Bank the amount claimed on the statement, and that he

was aware of no assignment of the account from Town North Bank to TIB sets up

no less than two meritorious defenses: that TIB lacked standing to bring the action,

and that even if it did own the claim, the amount of damages claimed was wrong.

        It was TIB’s burden to establish its standing to bring this suit by proving that

it owned the account sued upon. Their counsel admitted at the hearing on

Gattenby’s motion for new trial that he had failed to do that. Their evidence




Appellant’s Brief - Page 9 of 23

                                                                                      16
showed an amount due to Town North Bank, and neither alleged nor proved any

connection between TIB and Town North Bank.

        Gattenby’s statement that he did not owe Town North Bank the amount

claimed on the statement is also sufficient to set up a meritorious defense. The law

is clear that evidence disputing the amount of damages is sufficient to set up a

meritorious defense under Craddock and would require a remand to prove up the

correct amount of damages.

        There is legally insufficient evidence to support the award of attorney’s fees

in the trial court and for any appeals. The attorney’s affidavit states his hourly fee,

but includes no evidence of the time spent or the time expected to be spent in the

future. It includes no billing records and not even an estimate of the time spent.

The affidavit simply states a bald conclusion as to the amount of fees pre-

judgment, post- trial, on appeal to this court and on appeal to the supreme court,

with no explanation whatsoever as to how those amounts were calculated.

                              ARGUMENT AND AUTHORITIES

I.      THE DISTRICT COURT ABUSED ITS DISCRETION IN FINDING
        THAT ANEW TRIAL WAS NOT WARRANTED UNDER
        CRADDOCK

        A trial court’s denial of a motion for new trial will not be disturbed on

appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d

37, 38 (Tex. 1984). This Court has found that a trial court abuses its discretion in


Appellant’s Brief - Page 10 of 23

                                                                                     17
failing to grant a new trial when the party seeking such relief has demonstrated that

all three Craddock elements have been met. See id. at 38–39; see also Craddock v.

Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Pursuant to Craddock,

the party seeking a new trial must demonstrate that: (1) its failure to appear “was

not intentional, or the result of conscious indifference, but was due to a mistake or

accident”; (2) there is a “meritorious defense”; and (3) granting a new trial “will

occasion no delay or otherwise work an injury to the plaintiff.” Craddock, 133

S.W.2d at 126.

        The Craddock doctrine addresses a fundamental ideal of our legal system:

the doors to the courthouse should not be shut on anyone without an exceptionally

good reason. Craddock, 133 S.W.2d at 125–26. “It is a basic tenet of jurisprudence

that the law abhors a default judgment because equity is rarely served by a

default.” Diagnostic Clinic of Longview, P.A. v. Neurometrix, Inc., 260 S.W.3d

201, 205 (Tex. App.—Texarkana 2008, no pet.) (citing Titan Indem. Co. v. Old S.

Ins. Group, Inc., 221 S.W.3d 703, 708 (Tex. App.–San Antonio 2006, no pet.));

see also Hock v. Salaices, 982 S.W.2d 591, 593 (Tex. App.–San Antonio 1998, no

pet.). Instead, our legal system prefers decisions based on the merits of a case and,

accordingly, the “historical trend has been toward the liberal granting of new

trials.” Titan Indem. Co., 221 S.W.3d at 708; see also Custom-Crete, Inc. v. K-Bar

Servs., 82 S.W.3d 655, 658 (Tex. App.–San Antonio 2002, no pet.); Norton v.


Appellant’s Brief - Page 11 of 23

                                                                                   18
Martinez, 935 S.W.2d 898, 901 (Tex. App.–San Antonio 1996, no writ); Miller v.

Miller, 903 S.W.2d 45, 47 (Tex. App.–Tyler 1995, no writ).

        In TIB’s default judgment, the Trial Court provided no factual or legal basis

for its ruling other than the boiler plate language that it had considered the

pleadings and records in the file in this cause and the evidence…” which supported

the judgment (CR25). Absent findings of fact and conclusions of law, the court of

appeals must presume that the trial court made findings necessary to support its

order if there is sufficient evidence to support such findings. Torrington Co. v.

Stutzman, 46 S.W.3d 829, 842 (Tex. 2000) (citing Carter v. William Sommerville

& Son, Inc., 584 S.W.2d 274, 276 (Tex. 1979) (“When no findings of fact and

conclusions of law are filed, the trial court's judgment implies all necessary

supporting fact findings.”). Where there is some evidence tending to support the

trial court’s conclusions, the trial court does not abuse its discretion in refusing to

set aside the default judgment. Continental Coffee Prods. Co. v. Cazarez, 937

S.W.2d 444, 450 (Tex. 1996). In this case there is no evidence to support the Trial

Court’s finding that Gattenby failed to satisfy the Craddock elements; therefore,

the Trial Court abused its discretion by refusing to grant a new trial.

II.     ELEMENTS OR PRONGS OF THE CRADDOCK TEST

     A.   The District Court Correctly Found that the First Element of the
Craddock Test was Satisfied.



Appellant’s Brief - Page 12 of 23

                                                                                     19
        The trial court correctly found that Gattenby’s failure to file an answer a

mistake and not conscious indifferent. RR13.

        A defendant will satisfy the first element of the Craddock test if its factual

assertions are uncontroverted and negate intent or conscious indifference. See

Walker v. Guitierrez, 111 S.W. 3d 56, 64 (Tex. 2003); see also Director, State

Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268–69 (Tex. 1994)

(in determining whether the first prong of the Craddock test has been met, a court

“must consider the knowledge and acts of the defendant.”). This Court has stated

that “intentional or conscious indifference” is synonymous with the sentiment that

“the defendant knew it was sued but did not care.” Fid. & Guar. Ins. Co. v.

Drewery Constr. Co., 186 S.W.3d 571, 575–76 (Tex. 2006) (per curiam). Thus, the

standard to demonstrate “intentional or conscious indifference” is more onerous

than the “reasonable person” standard necessary to demonstrate negligence. See

Levine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 168 (Tex.

2008); see also Fidelity, 186 S.W.3d at 575–76. To satisfy the first element of the

Craddock test, a defendant’s excuse “need not be a good one to suffice.” Fidelity,

186 S.W.3d at 576.

        In evaluating whether the first element of the Craddock test was satisfied,

the Court must consider whether the evidence relating to Gattenby’s actions was

uncontroverted. Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex.1984) (Where


Appellant’s Brief - Page 13 of 23

                                                                                      20
the factual allegations are not controverted, it is sufficient to set forth facts which,

if true, would negate intentional or consciously indifferent conduct.); see also

Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.–Corpus Christi 1990, writ

denied) (same).

        Moreover, there is nothing in Mr. Clark’s testimony, or anywhere else in the

record, that even suggests the failure to answer was deliberate or the result of

conscious indifference (CR31-33).

        In Fidelity & Guaranty Ins. Co. v. Drewery Construction Co., 186 S.W.3d

571 (Tex. 2006), the Supreme Court was called upon to examine the burden

necessary to demonstrate conscious indifference under the first prong of the

Craddock test in circumstances similar to those in the case at bar. In that case,

Drewery Construction Company (“Drewery”) obtained a default judgment against

Fidelity and Guaranty Insurance Company (“Fidelity”). Id. at 573. After the default

judgment was rendered, Fidelity filed a motion for new trial based on Craddock

and attached four affidavits1 to the motion. Id. The trial court denied the motion for

new trial. Id. After coming to the conclusion that the four affidavits attached to

Fidelity’s motion were conclusory, the court of appeals affirmed the trial court’s

decision. Id. at 575. In support of its decision, the appellate court explained that

1
  The four affidavits demonstrated the following: (1) that Fidelity’s registered agent had received
the petition and citation; (2) the procedures by which Fidelity handled service papers; (3) that the
procedures for handling service papers were not followed in the instant case; and (4) that
Fidelity’s agent did not remember receiving the service papers. Fidelity, 186 S.W.3d at 573.

Appellant’s Brief - Page 14 of 23

                                                                                                  21
there was “no affidavit from a person explaining how the citation was lost or where

in the chain of communication a breakdown occurred” and that “a court cannot

vacate a default judgment based only upon general allegations or conclusions.” Id.

        The Supreme Court of Texas reversed the court of appeals’ decision. Id. at

576. In support of the reversal, the Court first disagreed that the four affidavits

were not “general or conclusory” because the affidavits Fidelity attached to its

Motion for New Trial “detail[ed] the procedures for handling service papers in

general and what was known about Drewery’s papers in particular.” Id. at 575.

Moreover, the Supreme Court disagreed with the court of appeals that, to meet the

first element of the Craddock test, a party must describe how the loss of a petition

occurred. See id. (“People often do not know where or how they lost something –

that is precisely why it remains ‘lost.’”). While this Court acknowledged that “a

conclusory statement that documents were ‘lost’ must generally be supported by

some explanation from the person most likely to have seen the efforts made to find

them,” the court reiterated that “[a]n excuse need not be a good one to suffice.” Id.

at 575–576 (emphasis added). In line with this reasoning, this Court found that the

uncontroverted affidavits Fidelity put forth demonstrated “neither intent nor

indifference” and that “the trial court was not at liberty to disregard [the

evidence].” Id. at 576.




Appellant’s Brief - Page 15 of 23

                                                                                   22
        The Supreme Court’s decision in Fidelity demonstrates that the Trial Court

did not abuse its discretion in holding that Gattenby satisfied the first element of

the Craddock test.

        The Trial Court in this case agreed that the above requirements were met

when examining the facts of this case. More specifically, the court found that the

failure to file an answer was a mere mistake (RR13).

        The uncontroverted evidence demonstrates that Gattenby satisfied his

burden to demonstrate a lack of intent or conscious indifference. Consequently, the

Court should affirm the Trial Court’s finding that Gattenby satisfied the first

element of the Craddock test. Accordingly, this Court should find that the district

court did not abuse its discretion in holding that Gattenby satisfied the first element

of the Craddock test (RR13).

        B.       Gattenby Satisfied the Second Element of the Craddock Test

        The second element of the Craddock test requires a defaulting party to

demonstrate a meritorious defense. Evans, 889 S.W.2d at 270. “Setting up a

meritorious defense does not require proof ‘in the accepted sense.’” Dolgencorp of

Tex., Inc. v. Lerma, 288 S.W.3d 922, 927–928 (Tex. 2009) (citing Ivy v. Carrell,

407 S.W.2d 212, 214 (Tex. 1966)).” Rather, a motion for default judgment will set

up a meritorious defense “if it alleges facts which in law would constitute a




Appellant’s Brief - Page 16 of 23

                                                                                     23
defense to the plaintiff's cause of action and is supported by affidavits or other

evidence providing prima facie proof that the defendant has such a defense.” Id.

        Gattenby asserted facts that, if true, would negate TIB’s cause of action on

retrial (CR35). As noted above, in its petition, TIB alleged that it opened a credit

account on October 11, 2013 at the request of and for Defendant. TIB claimed that

Defendant used or authorized the use of the account. TIP also claimed to have

generated and sent monthly statements to Gattenby which contained itemizations

of transactions, charges, debits, credit and/or payments on the account. TIB

claimed that Defendant ceased making payment on or about April 12, 2014.

        Gattenby clearly controverted these allegations. First, he stated that he never

had any financial or personal relationship with TIB. (CR35). TIB’s own evidence

only showed an account Gattenby had with Town North Bank, (CR 18), and they

neither alleged nor attempted to prove any relationship between TIB and Town

North Bank, or that TIB had acquired a claim to be derived from Town North

Bank. Gattenby also testified that he was not aware of the Town North Bank

account being transferred to TIB. (CR 35-6).

        Standing, a necessary component of subject-matter jurisdiction, is a

constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). Standing cannot be

waived and can, therefore, be raised for the first time on appeal. Id. at 445-46.


Appellant’s Brief - Page 17 of 23

                                                                                     24
Only the party whose primary legal right has been breached may seek redress for

an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.--Dallas

2005, no pet.). Without a breach of a legal right belonging to that party, that party

has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex.

App.--Fort Worth 2001, pet. denied).

        In order for TIB to have standing to sue to bring a cause of action for an

unpaid credit card account, it must prove that it owns the account at issue. Eaves v.

Unifund CCR Partners, 301 S.W.3d 402, 405 (Tex. App.--El Paso 2009, no pet.);

Jaramillo v. Portfolio Acquisitions, LLC, 2010 Tex. App. LEXIS 2219 (Tex. App.

– Houston [14th Dist.] 2010, no pet.); Moir v. Citibank (S. Dakota), N.A., 2010

Tex. App. LEXIS 4870 (Tex. App. – Dallas 2010, no pet.).

        TIB’s counsel conceded at the hearing on Gattenby’s motion for new trial

that he had failed to allege or prove the relationship between TIB and Town North

Bank. (RR 9). TIB’s lack of standing is a meritorious defense that justifies

remanding this case.

        In addition, Gattenby testified that he never owed the amount claimed by

Town North Bank of Lawrenceville, Georgia (CR35). Disputing the amount of

damages is sufficient to set up a meritorious defense under Craddock. In such

cases, the amount of damages would have to be remanded. Jaco v. Rivera, 278




Appellant’s Brief - Page 18 of 23

                                                                                   25
S.W.3d 867, 873 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Gardner v.

Jones, 570 S.W.2d 198, 201 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ).

        Similarly, Robert Clark’s affidavit set up a meritorious defense to the

amount of attorney’s fees awarded. He stated, correctly, that the evidence

supporting the award of attorney’s fees were entirely conclusory. TIB’s fee

affidavit simply asserted an amount of fees it claimed to be reasonable for services

pre-judgment, post-judgment, on appeal to this Court and on appeal to the Supreme

Court, with no evidence of the time spent on any task or the time expected to be

spent on future tasks. (CR 19-20).

        The Supreme Court of Texas has held that legally sufficient evidence

“includes, at a minimum, documentation of the services performed, who performed

them and at what hourly rate, when they were performed, and how much time the

work required.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762, 764 (Tex.2012);

see also Long v. Griffin, 442 S.W.3d 253 (Tex. 2014)(per curiam); see also City of

Laredo v. Montana, 414 SW3d 731, 736 (Tex. 2013); accord: Kinsel v. Lindsey,

526 S.W.3d 411(Tex. 2017). The proof must be sufficient to permit a court “to

perform a meaningful review of their fee application.” El Apple I at 764. This

Court has said that if contemporaneous time records are not available, the attorneys

involved should work to reconstruct them. Id. Generalities about tasks performed

provide insufficient information for the fact tinder to meaningfully review whether


Appellant’s Brief - Page 19 of 23

                                                                                  26
the tasks and hours were reasonable and necessary under the lodestar method. Id. at

763. In City of Laredo v. Montano, the Supreme Court likewise held that evidence

of fees was insufficient where the party failed to provide evidence of the time

devoted to specific tasks. Id., 414 S.W.3d 731,736-37 (Tex.2013); see also Long v.

Griffin, 442 S.W.3d at 255.

        Under this standard, the testimony supporting the awards of legal fees to TIB

in this case is legally insufficient.

        Thus, Gattenby has established meritorious defenses. These statements are

not merely conclusory allegations, but facts, supported by evidence, which

demonstrate Gattenby’s meritorious defense. See Boyes v. Morris Polich & Purdy,

LLP, 169 S.W.3d 448, 453–54 (Tex. App.–El Paso 2005, no pet.). Taken as true,

they would produce a different result on retrial of the case. Therefore, Gattenby has

satisfied the second element of Craddock, and this case should be remanded for

trial on the merits, or at least for a new trial on damages and attorney’s fees.

        C.       Gattenby Satisfied the Third Element of the Craddock Test

        In order to satisfy the third element of the Craddock test, the defaulting party

must establish that granting a motion for new trial would not occasion a delay or

otherwise work an injury to the plaintiff. Evans, 889 S.W.2d at 268. Once it has

been alleged that granting a new trial will not harm the plaintiff, the burden of

going forward with proof of injury then shifts to the plaintiff. Cliff v. Huggins, 724


Appellant’s Brief - Page 20 of 23

                                                                                      27
S.W.2d 778, 779 (Tex. 1987); Angelo v. Champion Restaurant Equip. Co., 713

S.W.2d 96, 98 (Tex. 1986). Equitable principles are involved and the court should

handle the facts on a case by case basis. Id. Factors to consider in determining

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

reimburse the plaintiff for the costs involved in obtaining the default judgment; and

(2) whether the party is ready, willing, and able to go to trial. Evans, 889 S.W.2d at

270.

        Gattenby alleged that a new trial will cause neither injury nor delay to TIB.

At that point, the burden was therefore shifted to TIB to demonstrate that a new

trial would have done it injury. See Cliff, 724 S.W.2d at 779; Angelo, 713 S.W.2d

at 98. TIB presented no evidence that a new trial would cause it to be injured.

Thus, TIB has failed in its burden to demonstrate injury. Moreover, Gattenby has

averred that he is ready to proceed to trial after discovery and willing to reimburse

TIB for all reasonable expenses incurred in obtaining the default judgment (CR32).

Consequently, Gattenby has satisfied the third and final element of Craddock, and

this Court should reverse and remand for a trial on the merits.

                                    PRAYER FOR RELIEF

        WHEREFORE, PREMISES CONSIDERED, Appellant Warren Gattenby

respectfully prays that the Court the Trial Court’s default judgment of December

19, 2017 be reversed and that the case be remanded to the trial court for trial. In


Appellant’s Brief - Page 21 of 23

                                                                                    28
addition, Appellant Warrant Gattenby requests all such other and further relief to

which he may justly be entitled.

                                                     Respectfully submitted,

                                                     _________________________
                                                     ROBERT M. CLARK
                                                     State Bar No. 04298200
                                                     EDDLEMAN & CLARK
                                                     4627 North Central Expressway
                                                     Knox Central Place, Suite 2000
                                                     Dallas, Texas 75205-4022
                                                     Phone 214.528.2400
                                                     Fax 214.528.2434
                                                     RMC@RobertMClark.net
                                                     Counsel for Appellants



                                        Certificate of Service
        I certify that a true copy of the above Appellant’s Brief was served through the electronic
filing manager per the requirements of Rule 9.5 Texas Rules of Appellate Procedure on counsel
for Appellee, R. Deloney at The DeLoney Law Group, 6440 N. Central Expressway, Suite 850,
Dallas, TX 75206, Fax 214.573.7970, chris@deloneylawgroup.com on the 4th day of June,
2018.

                                                     ___________________________
                                                     Robert M. Clark


                                   Certificate of Compliance
       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief
contains 5,436 words (excluding the caption, table of contents, table of authorities, signature,
proof of service, certification, and certificate of compliance). This is a computer-generated
document created in Microsoft Word, using 14-point typeface for all text, except for indexes,
footnotes and quotations which are in 12-point typeface. In making this certificate of
compliance, I am relying on the word count provided by the software used to prepare the
document.

                                                     _____________________________
                                                     Robert M. Clark


Appellant’s Brief - Page 22 of 23

                                                                                                 29
                                   Index Of Appendix
Appendix No. 1: Default Judgment of December 19, 2017 .....................................24

Appendix No. 2: Warren Gattenby’s January 11, 2018
   Motion for New Trial after Default Judgment .....................................................26




Appellant’s Brief - Page 23 of 23

                                                                                                         30
•
    -
                                                     CAUSE NO. DC-17-12078


        Tffi-THE INDEPENDENT                                 §
        BANKERSBANK                                          §                            IN TIIE DISTRICT COURT
        Plaintiff,                                           §
                                                             §
        vs.                                                  §                          193RD JUDICIAL DISTRICT
                                                             §
                                                             §
        WARREN GAITENBY
                                                             §                           DALLAS COUNTY, TEXAS
        Defendant.
                                                             §

                                                     DEFAULT JUDGMENT

                 Defendant, although duly cited to appear and answer herein, has failed to file an answer within the
        time allowed by law.
                The Court has considered the pleadings and records on file in this cause and the evidence and is of
        the opinion that judgment should be rendered for Plaintiff.
                 It is accordingly ADJUDGED that TIB-THE INDEPENDENT BANKERSBANK, Plaintiff, recover
        from WARREN GATIENBY, Defendant, judgment for-
                 I.        $16,935.87 as the principal amowtt due;
                 2.        $3,000.00 as reasonable and necessary attorney's fees;
                 3.        Conditi~nal award of reasonable and necessary attorney's      fees as follows:
                           a.      $1,500.00 for defending any attacks on the judgment prior to any appeal;
                           b.      $10,000.00 for defending each unsuccessful attack upon the judgment in the Texas
                           Court of Appeals;
                           c.      $10,000.00 for defending each unsuccessful attack upon the judgment in the Texas
                           Supreme Court;
                 4.        all costs of court; and
                 5.        post judgment interest at the rate of five percent per year on the total judgment from the date
        of judgment until paid.

                 It is ORDERED that Plaintiff shall have all writs of execution and other process necessary to enforce
        this judgment.


                 This judgment finally disposes of all parties and all claims and is appealable.


        Default Judament                                                                                    Paaet
        2l091TtB-THli INDEPENDENT BANKERSBANK va. WARREN GATillNBY




                                                          Appendix No. 1                                                     31
                                                     11
SIGNED on _         ___::fd'-+--<.__.:1+1----X.J,.:...._..:.....11"
                                                                __



APPROVED AS


By:
    --~-------------+------
Christopher R. DeLoney
State Bar No. 24032126
chris@deloneylawgroup.com
William R. DeLoney
State Bar No. 00792455
bill@deloneylawgroup.com
The DeLoney Law Group, PLLC
6440 N . Central Expressway, Ste. 850
Dallas, Texas 75206
214-741-7911 Fax: 214-573-7970
Attorney for Plaintiff




Default Judgment                                                         Page2
23091TIB-THE INDEPENDENT BANKBRSBANK vw. WARRBN OATI'SNBY




                                                        Appendix No. 1           32
                                                                                                             FILED
                                                                                                 DALLAS COUNTY
                                                                                                1/11/2018 12:21 PM
                                                                                                    FELICIA PITRE
                                                                                                  DISTRICT CLERK



                                         No. DC-17-12078
TIB-THE INDEPENDENT                              *                 In the District Court
BANKERSBANK                                      *
                                                 *
v.                                               *                193rd Judicial District
                                                 *
WARREN GATTENBY                                  *                Dallas County, Texas


                MOTION FOR NEW TRIAL AFTER DEFAULT JUDGMENT

                 This Motion for New Trial after a Default Judgment is brought by Warren

Gattenby, Defendant, who shows in support:

                                                  I. FACTS

                 On September 13, 2017, Plaintiff TIB-The Independent BankersBank [hereinafter

“TIB”] sued Warren Gattenby. On that date, it filed Plaintiff’s Original Petition with Requests

for Disclosure and Requests for Admissions. Defendant Gattenby had never had an account with

Plaintiff and the petition did not indicate that the claim was based upon an assignment.

                 On October 4, 2017, the Original Petition in this case was served on Defendant.

Fourteen days later, on Wednesday, October 18, 2017, Defendant Gattenby had an appointment

with attorney Robert M. Clark regarding defending this case. The meeting was held at Mr.

Clark’s law office at 4627 North Central Expressway, Dallas, Texas. Mr. Gattenby was quoted a

fee but did not retain Mr. Clark on that day. However, on the next day, Mr. Gattenby’s wife,

Jackie, dropped off the agreed $1500 retainer in cash to Mr. Clark’s wife, Kimberly Clark, at the

attorney’s home at 4306 Rawlins Street, Dallas, Texas as Mrs. Gattenby had been requested.

This is because Mr. Clark was in mediation on that day and was not at his office.

                 However, purely by mistake, a file was never opened and, therefore, an answer

was never filed on the answer date which occurred on October 30, 2017. This is because the




Motion for New Trial After a Default Judgment - Page 1 of 8
                                                 Appendix No. 2                                33
only documents regarding this case in Clark’s possession were inadvertently paper clipped to the

papers in another file.

                 On December 18, 2017, Plaintiff filed a Motion for Entry of Default Judgment

which was internally inconsistent in that it and its attached November 13, 2017 affidavit of

Darlene Pence failed to connect Plaintiff to the alleged original lender, Town North Bank of

Lawrenceville, Georgia. Furthermore, the attorney’s fee affidavit was wholly conclusory. The

Court signed the proposed default judgment on December 19, 2017. Within three or four days,

Defendant Gattenby received notification from the court, and he notified Attorney Clark on

December 26, 2017. This Motion for New Trial after Default Judgment has been timely filed.

                                             II. ARGUMENT

                 Defendant Gattenby’s failure to answer was not intentional, but was accidental as

described below. Gattenby brings this action by way of petition and motion pursuant to Texas

Rules of Civil Procedure 329(a) and asks this Court to grant a new trial.

                 Warren Gattenby has a meritorious defense to the cause of action alleged in this

case in that he never received a loan or any funds from Plaintiff and the attorney fees requested

are conclusory. The granting of a new trial would not injure Plaintiff. Justice will not be

properly served unless a new trial is granted.

                 Defendant attaches affidavit to this motion as Exhibit A to establish facts not

apparent from the record and incorporates them by reference.

                                    III. MISTAKE OR ACCIDENT

                 When a defendant does not file an answer because of a mistake or an accident, the

court should set aside the default judgment and grant a new trial if the defendant can meet the

requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).

Craddock requires the defendant to do all of the following:

Motion for New Trial After a Default Judgment - Page 2 of 8
                                                 Appendix No. 2                                 34
          a.     Demonstrate that the failure to file an answer was not intentional or the result of
                 conscious indifference, but was a mistake or an accident. In re R.R., 209 S.W.3d
                 112, 114 (Tex. 2006); Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex.
                 1993); Craddock, 133 S.W.2d at 126. The mistake and inadvertence in this
                 default judgment was by Defendant’s counsel. The file was never opened as the
                 payment for the retainer was made at defense counsel’s home in cash.

          b.     Set up a meritorious defense. In re R.R., 209 S.W.3d at 114; Ivy v. Carrell, 407
                 S.W.2d 212, 214 (Tex. 1966); Craddock, 133 S.W.2d at 126. Defendant must
                 allege facts that constitute a defense to plaintiff’s cause of action and must
                 support the allegations with affidavits or other evidence that set up, not prove, a
                 prima facie defense. Estate of Pollack, 858 S.W.2d at 392; Ivy, 407 S.W.2d at
                 214. Defendant has never had any business or professional relationship with
                 Plaintiff, nor has he made purchases with Plaintiff’s card. The filings contain no
                 indication of an assignment and, therefore, is internally inconsistent.

          c.     Demonstrate that granting a new trial will not cause delay or otherwise injure
                 plaintiff. In re R.R., 209 S.W.3d at 114-15; Craddock, 133 S.W.2d at 126. In this
                 case, no witnesses are unavailable or was there any loss of evidence.

                 The court should grant a new trial because defendant’s failure to answer was not

intentional, but was accidental. Specifically, there was a clerical mistake and this inadvertence

in the defense counsel’s office in that the file was misplaced causing the answer to not be timely

filed. This was an accident and not intentional. Defendant Gattenby is, thereby, wholly free of

responsibility or knowledge that an answer had not been timely filed. See Lowe v. Lowe, 971

SW2d 720, 723 (Tex. App. – Houston [14th Dist.] 1998, pet. denied); Hahn v. Whiting

Petroleum Corp., 171 SW3d 307, 310 (Tex. App. – Corpus Christi, 2005, no pet.).

                 The court should grant a new trial because defendant has a meritorious defense.

Specifically, the Defendant does not owe the monies being sued for. Defendant has never had a

financial relationship with Plaintiff and there is no indication in the filings of any assignment.

                 The court should grant a new trial because a new trial will not cause delay or

prejudice Plaintiff or otherwise injure plaintiff. There is no loss of witnesses or other valuable

evidence and very little time has passed since the date of judgment. Defendant is ready for trial



Motion for New Trial After a Default Judgment - Page 3 of 8
                                                 Appendix No. 2                                      35
and willing to reimburse plaintiff for all reasonable expenses incurred in obtaining the default

judgment.

                                                   PRAYER

                 For these reasons, and in the interest of justice and fairness, Defendant asks the

court to set aside the default judgment signed on December 19, 2017, to strike the deemed

admissions that were contained in the Plaintiff’s Original Petition to allow the Defendant to

respond to the requests, and to grant a new trial.

                                                              Respectfully submitted,

                                                              EDDLEMAN & CLARK
                                                              4627 North Central Expressway
                                                              Knox Central Place, Suite 2000
                                                              Dallas, Texas 75205-4022
                                                              Phone 214.528.2400
                                                              Fax 214.528.2434
                                                              RMC@RobertMClark.net


                                                              ______________________________
                                                              ROBERT M. CLARK
                                                              State Bar No. 04298200
                                                              Attorney for Defendant




                                              Certificate of Service

        I certify that a true copy of the above was served on counsel for Plaintiff, Christopher R. Deloney
        at The DeLoney Law Group, 6440 N. Central Expressway, Suite 850, Dallas, TX 75206, Fax
        214.573.7970 in accordance with Rule 21a of the Texas Rules of Civil Procedure on the 11th day
        of January, 2018.


                                                    ___________________________________
                                                           Robert M. Clark




Motion for New Trial After a Default Judgment - Page 4 of 8
                                                  Appendix No. 2                                              36
STATE OF TEXAS                    *
                                  *                        AFFIDAVIT
COUNTY OF DALLAS                  *


                 BEFORE ME, the undersigned authority, on this day personally appeared

Robert M. Clark, known to me to be the person whose signature is set forth herein, and who

being by me duly sworn, on oath states:

                 “My name is Robert M. Clark. I am over eighteen (18) years of age. I am a

resident of Dallas County, Texas and am fully competent to make this affidavit.

                 I have read the foregoing Motion for New Trial after a Default Judgment, and

it is true and correct. Defendant’s failure to answer was not intentional, but was accidental.

Specifically, there was a clerical mistake in my office and in my home in that the file was

misplaced causing the answer to not be timely filed as described below. The facts set forth

therein are within my personal knowledge and the same are true and correct and are also based

upon the filings in this case.

                 On September 13, 2017, Plaintiff TIB-The Independent BankersBank [hereinafter

“TIB”] sued Warren Gattenby. On that date, it filed Plaintiff’s Original Petition with Requests

for Disclosure and Requests for Admissions. Defendant Gattenby had never had an account with

Plaintiff and the petition did not indicate that the claim was based upon an assignment.

                 On October 4, 2017, the Original Petition in this case was served on Defendant.

Fourteen days later, on Wednesday, October 18, 2017, Defendant Gattenby attended an

appointment with attorney Robert M. Clark regarding defending this case. The meeting was held

at Mr. Clark’s law office at 4627 North Central Expressway, Dallas, Texas. Mr. Gattenby was

quoted a fee but did not retain Mr. Clark on that day. However, on the next day, Mr. Gattenby’s

wife, Jackie, dropped off the agreed $1500 retainer in cash to Mr. Clark’s wife, Kimberly Clark,


Motion for New Trial After a Default Judgment - Page 5 of 8
                                                 Appendix No. 2                               37
                                               Exhibit A
at the attorney’s home at 4306 Rawlins Street, Dallas, Texas as Mrs. Gattenby had been

requested. This is because Mr. Clark was in mediation on that day and was not at his office.

                 However, purely by mistake, a file was never opened and, therefore, an answer

was never filed on the answer date which occurred on October 30, 2017. This is because the

only documents regarding this case in Clark’s possession were inadvertently paper clipped to the

papers in another file.

                 On December 18, 2017, Plaintiff filed a Motion for Entry of Default Judgment

which itself was internally inconsistent in that it and its attached November 13, 2017 affidavit of

Darlene Pence failed to connect Plaintiff to the alleged original lender, Town North Bank of

Lawrenceville, Georgia. Furthermore, the attorney’s fee affidavit was wholly conclusory. The

Court signed the proposed default judgment on December 19, 2017. Within three or four days,

Defendant Gattenby received notification from the court, and he notified Attorney Clark on

December 26, 2017. This Motion for New Trial after Default Judgment has been timely filed.

                 Warren Gattenby has a meritorious defense to the cause of action alleged in this

case in that he never received a loan or any funds from Plaintiff, had no relationship with TIB,

there is no evidence of any assignment of the claim to TIB. Furthermore, the attorney fees

requested are conclusory. The court should grant a new trial because a new trial will not cause

delay or prejudice Plaintiff or otherwise injure Plaintiff. There is no loss of witnesses or other

valuable evidence and very little time has passed since the date of judgment. Defendant is ready

for trial and willing to reimburse Plaintiff for all reasonable expenses incurred in obtaining the

default judgment. Justice will not be properly served unless a new trial is granted.”

                 Further, Affiant sayeth not.




Motion for New Trial After a Default Judgment - Page 6 of 8
                                                 Appendix No. 2
                                                  Exhibit A                                      38
                                                              ________________________
                                                              Robert M. Clark




              SUBSCRIBED and SWORN to before me, the undersigned authority, on this the
2nd day of January, 2018, to certify which witness my hand and seal of office.


                                                    _____________________________
                                                          NOTARY PUBLIC in and for
                                                            the State of Texas




Motion for New Trial After a Default Judgment - Page 7 of 8
                                                 Appendix
                                            Exhibit A     No. 2                          39
STATE OF TEXAS                    *
                                  *                      AFFIDAVIT OF KIMBERLY K. CLARK
COUNTY OF DALLAS                  *


                 BEFORE ME, the undersigned authority, on this day personally appeared

Kimberly K. Clark, known to me to be the person whose signature is set forth herein, and who

being by me duly sworn, on oath states:

                 “My name is Kimberly K. Clark. I am over eighteen (18) years of age. I am a

resident of Dallas County, Texas and am fully competent to make this affidavit.

                 I have read the foregoing Motion for New Trial after a Default Judgment and

the facts therein are correct. Since Robert M. Clark was in mediation and unavailable, on

Thursday, October 19, 2017, Mr. Gattenby’s wife, Jackie, dropped off a cash retainer of $1500

for Robert M. Clark at our home at 4306 Rawlins Street, Dallas, Texas. I received the payment

and provided a receipt to Jackie Gattenby. However, due to a clerical mistake by myself, the

case papers were accidentally paper clipped to a different file and the answer was not calendared

or filed. This was no fault of Warren Gattenby but an accident in our office. The facts set forth

herein are within my personal knowledge and the same are true and correct.


                                                              ________________________
                                                              Kimberly K. Clark

              SUBSCRIBED and SWORN to before me, the undersigned authority, on this the
2nd day of January, 2018, to certify which witness my hand and seal of office.


                                                    _____________________________
                                                          NOTARY PUBLIC in and for
                                                            the State of Texas




Motion for New Trial After a Default Judgment - Page 8 of 8
                                                 Appendix No. 2                                40
                                           Exhibit B
STATE OF TEXAS                    *
                                  *              AFFIDAVIT OF WARREN GATTENBY
COUNTY OF DALLAS                  *


                 BEFORE ME, the undersigned authority, on this day personally appeared

Warren Gattenby, known to me to be the person whose signature is set forth herein, and who

being by me duly sworn, on oath states:

                 "My name is Warren Gattenby. I am over eighteen (18) years of age. I am a

resident of Dallas County, Texas and am fully competent to make this affidavit.

                 On October 4, 2017, I was served with Plaintiff’s Original Petition with Requests

for Disclosure and Requests for Admission. The petition which I was served with was from a

Plaintiff TIB-The Independent BankersBank [hereinafter TIB], who I had never had any

financial or personal relationship. The petition did not indicate that the claim was based upon an

assignment, although the attached statement indicated that the claimed debt was connected with a

Town North Bank of Lawrenceville, Georgia. On October 18, 2017, I had an appointment with

attorney Robert M. Clark at his office about defending this case. I was quoted a retainer fee of

$1500, which I caused to be delivered by my wife Jackie to Mr. Clark’s home the next day.

                 A little over two months later, I received from the 193rd Judicial District Court

Clerk a notice of judgment in this case. Within a few days, I provided the notice to Mr. Clark.

                 I never had any financial or any other type of relationship with TIB and never

owed the amount which might be claimed to be derived from Town North Bank of

Lawrenceville, Georgia. There has been little or no delay in this case which would otherwise

injure Plaintiff if the default is set aside and a new trial on the merits is granted.”

                 Further, Affiant sayeth not.



Affidavit of Warren Gattenby - Page 1 of 2

                                                Appendix No. 2                                    41
                             SUBSCRIBED and SWORN to before me, the undersigned authority, on this the
10th
 _ day of January, 2018, to certify which witness my hand and se          f offi e.



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                               KEVIN R GRANTHAM
                     Public. State o f T.exas
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                                                                 NOTARY PUBLIC in and for
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       -.+~i,;?f,;,,._..$'    Notary 10 1304395 7-8
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Affidavit of Warren Gattenby -Page 2 of2

                                                      Appendix No. 2                                42
