Opinion issued January 21, 2016




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-14-00891-CV
                            ———————————
        R & G TRANSPORTATION, INC. A/K/A AND D/B/A R & G
                   TRANSPORTATION, Appellant
                                        V.
                           FLEETMATICS, Appellee


             On Appeal from the County Civil Court at Law No. 3
                           Harris County, Texas
                       Trial Court Case No. 1042703


                          MEMORANDUM OPINION

      Appellant, R & G Transportation, Inc., also known as and doing business as

R & G Transportation (“R & G”), challenges the trial court’s default judgment in

favor of appellee, Fleetmatics, in its suit against R & G for breach of contract. In
its sole issue, R & G contends that the trial court erred in not granting its motion

for new trial.

      We affirm.

                                   Background

      In its amended petition, Fleetmatics alleged that it entered into two

agreements with R & G “for goods and/or services.” According to Fleetmatics, it

“fully performed all of its obligations” under the agreements, but R & G “failed

and refused . . . to pay” Fleetmatics $16,468, as required by the agreements.

Fleetmatics also alleged:

      R & G . . . failed to maintain a registered agent [in Texas] who can be
      served with reasonable diligence. Efforts were made to deliver the
      citation to GLASHANDA M. LEWIS, registered agent for service,
      but he did not make himself personally available for service at the
      registered office located at 3511 PINEMONT DR., STE C6,
      HOUSTON, TX 77018. . . . Due diligence has been used in an effort
      to obtain service of citation, to no avail, therefore, the Secretary of
      State of the State of Texas is [the] agent for service of process,
      according to Article 2.11B, Vernon’s Annotated Texas Statutes, the
      Texas Business Corporation Act. Service of citation upon R & G . . .
      may be had by service upon the Secretary of State of the State of
      Texas . . . .

      On May 1, 2014, the Secretary of State attempted to effect service via

certified mail, return receipt requested, to R & G at 3511 Pinemont Dr., STE C6,

Houston, Texas 77018.       On May 27, 2014, the process was returned to the

Secretary of State with the notation to “Return to Sender, Unclaimed, Unable To

Forward.”


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      On July 17, 2014, after the return had been on file with the clerk of the court

for more than 10 days1 and R & G had failed to appear and answer, the trial court

entered a default judgment against R & G, holding it liable for payment of

damages in the amount of $16,468, attorney’s fees in the amount of $5,490, pre-

and post- judgment interest, and costs.

      On August 18, 2014, R & G filed a motion for new trial, asserting that it

“did not receive notice of th[e] lawsuit, and therefore, could not file a response or

make an appearance in th[e] matter.” Further, it asserted that its “failure to answer

was the result of accident or mistake, namely [that it] never received notice of [the]

suit[,]” “a new trial w[ould] not cause delay or otherwise injure [Fleetmatics],” and

“any failure to grant [R & G’s] request for a new trial would violate [its] due

process rights.” No hearing was held on the motion, and it was overruled by

operation of law.2

                                Standard of Review

      We review the trial court’s denial of a motion for new trial for an abuse of

discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.

2009); In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). In other words, the court’s

ruling on the motion will not be disturbed on appeal absent a showing of an abuse


1
      See TEX. R. CIV. P. 107(h).
2
      See TEX. R. CIV. P. 329b(c).


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of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). A trial court

abuses its discretion if its decision is arbitrary, unreasonable, and without reference

to guiding rules and principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446

(Tex. 1997); Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston

[1st Dist.] 2010, no pet.).

                               Motion for New Trial

      In its sole issue, R & G argues that the trial court erred in not granting its

motion for new trial because its failure to answer was due to “an accident or

mistake,” it has “a meritorious defense to [Fleetmatics’] breach of contract claim,”

granting the motion for new trial “would not have caused any delay or otherwise

injured [Fleetmatics],”3 and Fleetmatics “failed to file a Non – Military Affidavit

before moving for final default judgment.”4

      Here, no hearing on R & G’s motion for new trial was held. R & G, in its

motion, did not request a hearing, and the record does not show that R & G

attempted to have the motion set for a hearing. Instead, the motion for new trial

was overruled by operation of law. See TEX. R. CIV. P. 329b(c).


3
      See Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939) (default
      judgment set aside if defendant proves: (1) failure to answer not intentional or
      result of conscious indifference, but rather due to accident or mistake; (2) motion
      for new trial sets up meritorious defense; and (3) motion shows granting new trial
      will not cause delay or injury to plaintiff).
4
      See 50 U.S.C. § 3931 (titled “Protection of [S]ervicemembers [A]gainst [D]efault
      [J]udgments”).


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      Notably, “[w]hen a movant for new trial from a default judgment makes no

effort to have [its] motion set for a hearing or otherwise to draw the trial court’s

attention to [its] motion, and the movant allows the motion to be overruled by

operation of law, the trial court does not abuse its discretion in permitting [its]

motion to be overruled by operation of law.” James v. Comm’n for Lawyer

Discipline, 310 S.W.3d 586, 593–94 (Tex. App.—Dallas 2010, no pet.); see also

Fluty v. Simmons Co., 835 S.W.2d 664, 666–68 (Tex. App.—Dallas 1992, no writ)

(“There is no abuse of discretion in the overruling of a motion for new trial by

operation of law where the record [does not] show any attempt to obtain a timely

hearing.”); Shamrock Roofing Supply, Inc. v. Mercantile Nat’l Bank at Dall., 703

S.W.2d 356, 357–58 (Tex. App.—Dallas 1985, no writ) (“We are unwilling to hold

that an abuse of discretion occurs when the defaulting defendant fails to call his

motion to the judge’s attention and allows it to be overruled by operation of law.”);

see also Pinole Valley Trucking, Inc. v. Tex. Dev. Co., No. 01-08-00599-CV, 2009

WL 1025750, at *4–5 (Tex. App.—Houston [1st Dist.] Apr. 16, 2009, no pet.)

(mem. op.) (involving post-answer default judgment). This is because when a

motion for new trial requires the exercise of discretion, a trial court must be

afforded the opportunity to exercise that discretion before a court of appeals may

hold that it was abused. Fluty, 835 S.W.2d at 666; Shamrock, 703 S.W.2d at 358

(explaining “[t]rial judges have a heavy load of trials and contested motions,”



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“cannot be expected to examine sua sponte all papers filed in their courts,” and

“must rely on counsel to see that motions are set for hearing”).

      Because R & G made no effort to have its motion for new trial set for a

hearing, failed to otherwise bring the motion to the trial court’s attention, and

allowed the motion to be overruled by operation of law, we hold that the trial court

did not abuse its discretion in not granting the motion.

      We overrule R & G’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Keyes, and Bland.




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