                                  IN THE
                          TENTH COURT OF APPEALS

                               No. 10-11-00369-CV

ROSE RODRIGUEZ AND CARLOS RODRIGUEZ
D/B/A THE ROSE HOME,
                                  Appellants
v.

CARL DAVID MEDDERS, EXECUTOR OF THE
ESTATE OF DANESE MEDDERS MAXWELL,
DECEASED; JOHN KENNETH MEDDERS, JR.
AND DEBORAH MEDDERS, INDIVIDUALLY,
                                                          Appellees


                           From the 361st District Court
                               Brazos County, Texas
                         Trial Court No. 11-000843-CV-361


                          MEMORANDUM OPINION


      Rose Rodriguez and Carlos Rodriguez d/b/a the Rose Home appeal from a no-

answer default judgment entered against them for negligence and gross negligence in

providing care for Danese Medders Maxwell, the mother of the appellees, which

resulted in her death.    The Rodriguezes complain that the evidence was legally

insufficient to establish a causal nexus between Maxwell's injuries and her death, that
the cause should be classified as a Texas Medical Liability Act cause of action and

dismissed because an expert report was not timely filed, and that the trial court abused

its discretion by denying their motion for new trial pursuant to the factors set forth in

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Because we find

that the evidence was legally insufficient to support the damages award but was

otherwise proper, we reverse the judgment of the trial court as to the damages award

and remand to that court for a new trial on unliquidated damages. The judgment is

otherwise affirmed.

The Facts and Procedural History

       The Rodriguezes operated a facility called The Rose Home, an unlicensed

residence which provided shelter and residential care to invalids. Maxwell was living

there prior to her death, which the Medderses allege was caused by the failure of the

Rodriguezes to provide proper care resulting in serious decubitus ulcers that ultimately

caused her death.

       Carl David Medders, Executor of Maxwell's estate, John Kenneth Medders, Jr.,

and Deborah Medders initially filed a suit requesting a pre-trial deposition of Rose

Rodriguez pursuant to rule 202 of the rules of civil procedure because the Rodriguezes

had not responded to a written request for records relating to Maxwell. See TEX. R. CIV.

P. 202.   Rose Rodriguez was served by alternative means in that suit because the

Medderses' process server was unable to serve her personally. Rose Rodriguez did not


Rodriguez v. Medders                                                               Page 2
appear or answer that petition and the Medderses took a default judgment against her

granting the request for a deposition. Shortly before the deposition was scheduled,

Rose Rodriguez delivered what was represented to be the records from The Rose Home

to the attorney for the Medderses. Rose Rodriguez appeared for the deposition and

testified that the records provided were true and correct copies. Upon learning that the

records extended six days beyond Maxwell's death, Rodriguez's attorney stopped the

deposition and Rodriguez invoked her Fifth Amendment right against self-

incrimination. The deposition was rescheduled for April 1, 2011 but was canceled by

Rodriguez's attorney on March 31, 2011.

       The parties and their attorneys attended a pre-suit mediation which was

unsuccessful on March 17, 2011. This suit was filed on April 1, 2011, asserting causes of

action for negligence and gross negligence. Carlos Rodriguez was personally served on

April 4, 2011; however, the process server was unable to serve Rose Rodriguez with the

petition.   The attorney that had previously represented the Rodriguezes did not

represent the Rodriguezes in this suit. Carlos Rodriguez did not file an answer or

otherwise appear and an interlocutory default judgment was taken against him on May

24, 2011 in the amount of $250,000 in actual damages and $500,000 in punitive damages.

The Brazos County District Clerk sent a notice of default to Carlos Rodriguez on May

25, 2011.




Rodriguez v. Medders                                                               Page 3
       On May 23, 2011 the trial court entered an order for alternative service on Rose

Rodriguez by posting the citation on the front door of her last known residence, which

was the same residence as Carlos Rodriguez's, and service was completed on May 26,

2011. Rose Rodriguez did not file an answer and a default judgment was taken against

her also in the amount of $250,000 in actual damages and $500,000 in punitive damages.

The trial court entered a final judgment on June 21, 2011. The Rodriguezes filed a

motion for new trial on July 21, 2011 seeking to set aside the default judgment.

Default Judgment

       The Rodriguezes complain in their third issue that the trial court abused its

discretion by denying their motion for new trial because they met their burden of proof

pursuant to Craddock v. Sunshine Bus Lines. Craddock v. Sunshine Bus Lines, Inc., 133

S.W.2d 124, 126 (Tex. 1939). In Craddock v. Sunshine Bus Lines, the Texas Supreme Court

explained that

       [a] default judgment should be set aside and a new trial ordered in any
       case in which the failure of the defendant to answer before judgment was
       not intentional, or the result of conscious indifference on his part, but was
       due to a mistake or an accident; provided the motion for a new trial sets
       up a meritorious defense and is filed at a time when the granting thereof
       will occasion no delay or otherwise work an injury to the plaintiff.

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939). "When

all three elements of the Craddock test are met, the trial court abuses its discretion by not

granting a new trial." Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992). The

defaulting defendant has the burden of proving all three of those elements before a trial
Rodriguez v. Medders                                                                   Page 4
court can be found to have abused its discretion. Freeman v. Pevehouse, 79 S.W.3d 637,

641 (Tex. App.—Waco 2002, no pet.).

       The first prong of the Craddock test is one of intentional or conscious indifference:

that the defendants knew they were sued but did not care. Fid. & Guar. Ins. v. Drewery

Constr. Co., 186 S.W.3d 571, 575-76 (Tex. 2006). The excuse provided need not be a good

one to suffice. Id. at 576.

       The Rodriguezes attached substantially similar affidavits to their motion for new

trial which alleged that Rose Rodriguez's mother was seriously injured in a traffic

accident on March 24, 2011 and was in the hospital for approximately two weeks

thereafter. Upon her mother's discharge from the hospital, she required 24-hour care

and the Rodriguezes both spent large amounts of time taking care of Rose Rodriguez's

mother. This continued until after the default judgments were taken. Each of the

Rodriguezes stated that:

        As a result of the stress, anxiety, and pressure due to the accident, as well
       as the urgency of [Rose's mother's] care, I did not fully understand the
       importance of the deadlines applicable in this lawsuit, nor was I aware of
       its status. My failure to file an answer was not intentional or due to
       conscious indifference but an accident or mistake resulting from the stress,
       anxiety, and pressure surrounding my mother's medical condition.

       The Medderses did not file a response to the motion for new trial but their

attorney testified at the hearing on the motion for new trial and submitted an affidavit

signed by him. The attorney testified to the procedural history of the case and the

difficulties of securing service on Rose Rodriguez as well as her alleged forgery of some
Rodriguez v. Medders                                                                    Page 5
of the records she had provided to the Medderses' attorney, which resulted in an

indictment of her.     Additionally, the attorney testified that he encountered Rose

Rodriguez at a convenience store on May 25, 2011 and that she asked him if he handled

injury cases. When the attorney replied that he did, Rose Rodriguez stated that she

might call him as her mother had been in an accident. At the end of the conversation,

the attorney testified that Rose Rodriguez stated "and don't worry, we are going to take

care of that Medders case, too." No other evidence relating to the Rodriguezes' failure

to answer was offered by either party.

       In determining whether the failure to answer was due to intentional conduct or

conscious indifference we must look to the knowledge and acts of the defendant as

shown by all the evidence contained in the record before the court. Strackbein v. Prewitt,

671 S.W.2d 37, 38-39 (Tex. 1984); Freeman, 79 S.W.3d at 641. If the factual assertions in

the defendant's affidavits are not controverted by the plaintiff, the defendant satisfies

his or her burden if their affidavit sets forth facts that, if true, negate intentional or

consciously indifferent conduct by the defendant.        Strackbein, 671 S.W.2d at 38-39.

However, conclusory allegations are insufficient. Holt Atherton Industries, Inc. v. Heine,

835 S.W.2d 80, 82 (Tex. 1992); Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex.

App.—Fort Worth 1982, writ ref'd).

       However, when other controverting evidence is presented, in order to determine

if the defendant's factual assertions are in fact controverted, the court also looks to all


Rodriguez v. Medders                                                                  Page 6
the evidence in the record. Director, State Emp. Wrks.' Comp. v. Evans, 889 S.W.2d 266,

269 (Tex. 1994). When the non-movant presents evidence at the hearing for new trial

tending to show intentional or consciously indifferent conduct, it becomes a question

for the trial court to determine. Freeman, 79 S.W.3d at 641 (citing Young v. Kirsch, 814

S.W.2d 77, 80-81 (Tex. App.—San Antonio 1991, pet. reh'g denied); Jackson v. Mares, 802

S.W.2d 48, 50 (Tex. App.—Corpus Christi 1990, writ denied). In acting as factfinder, the

trial court is the sole judge of the credibility of the witnesses and the weight to be given

to their testimony. Martinez v. Martinez, 157 S.W.3d 467, 470 (Tex. App.—Houston [14th

Dist.] 2004, no pet.) (citing Olin Corp. v. Smith, 990 S.W.2d 789, 797-98 (Tex. App.—

Austin 1999, pet. denied).

       A trial court can reasonably believe, based on contradictory evidence, that there

was intentional or consciously indifferent conduct on the part of a defendant. Freeman,

79 S.W.3d at 647 (citing K-Mart Corp. v. Armstrong, 944 S.W.2d 59, 62 (Tex. App.—

Amarillo 1997, writ denied), and Baker v. Kunzman, 873 S.W.2d 753 (Tex. App.—Tyler

1994, writ denied)).    At the hearing on the Motion for New Trial, the court was

presented with conflicting evidence by the parties: the Rodriguezes, whose evidence

presented a mistake or accident due to stress; and the Medderses, whose evidence

portrayed the Rodriguezes as having been intentionally or consciously indifferent to the

proceedings before as well as after Rose Rodriguez's mother's accident.




Rodriguez v. Medders                                                                  Page 7
       Based on the record in this appeal, we find that the trial court could have

reasonably found that the Rodriguezes did not meet the first element of the Craddock

test. Therefore, we do not need to determine if the Rodriguezes met the other two

prongs of the Craddock test. We overrule the Rodriguezes' third issue.

Texas Medical Liability Act Report

       The Rodriguezes complain in their second issue that the trial court erred by not

granting the motion for new trial and dismissing the case because they were health care

providers, which triggered the requirement for an expert report to be filed within 120

days of filing suit. However, when a default judgment is taken against the defendant,

all allegations of material fact set forth in the petition are deemed admitted except the

amount of unliquidated damages, and the default judgment conclusively establishes the

defendant's liability. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992);

Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984).         The expert report

requirement serves a dual purpose; that is "to inform the served party of the conduct

called into question and to provide a basis for the trial court to conclude that the

plaintiff's claims have merit.” Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex.

2008). As the Texas Supreme Court stated in Gardner, "it makes little sense to require

service of an expert report on a party who by default has admitted the plaintiff's

allegations." Gardner, 274 S.W.3d 671.




Rodriguez v. Medders                                                                Page 8
       The Medderses did not plead that the Rodriguezes were health care providers

but made claims for ordinary negligence and gross negligence. However, even if the

claims were health care claims, because the allegations were deemed admitted any error

in the failure to file an expert report was waived by the Rodriguezes' failure to answer

the lawsuit. We overrule issue two.

Sufficiency of the Evidence

       In their first issue the Rodriguezes complain that the evidence was legally

insufficient to establish a causal nexus between the injury to Maxwell and her death,

which the Rodriguezes argue required expert testimony to establish.            Maxwell

developed stage IV decubitus ulcers, commonly known as bedsores, on her heel and

coccyx while residing at The Rose Home. The only evidence presented at both default

judgment hearings was the testimony of Kenneth Medders, Jr., Maxwell's son. The

Rodriguezes contend that the lay testimony presented by Medders was legally

insufficient to establish the causal nexus between the Rodriguezes' negligence and

Maxwell's injuries. The Medderses respond that lay testimony is sufficient to establish

the causal nexus because the nature of decubitus ulcers, their cause, and potential

effects are within the realm of general knowledge, experience and common sense of

laypersons. The Medderses further argue that the testimony established a sequence of

events which provided a strong, logically traceable connection between the




Rodriguez v. Medders                                                              Page 9
development of the decubitus ulcers and Maxwell's death, and therefore, no expert

testimony was required. We agree with the Rodriguezes.

       "Lay testimony may be used as evidence of causation in certain circumstances,

but when expert testimony is required, lay evidence supporting liability is legally

insufficient."   Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010) (internal quotations

omitted). "When lay testimony is credited as evidence of causation, it usually highlights

a connection between two events that is apparent to a casual observer." Id. "Non-expert

evidence alone is sufficient to support a finding of causation in limited circumstances

where both the occurrence and conditions complained of are such that the general

experience and common sense of laypersons are sufficient to evaluate the conditions

and whether they were probably caused by the occurrence."            Id. at 534.   Expert

testimony is necessary when there are multiple potential medical causes of an injury.

Id. (finding that expert testimony is required to determine whether an infection was

caused by omitted antibiotics or other infections (citing Kaster v. Woodson, 123 S.W.2d

981, 983 (Tex. Civ. App.—Austin 1938, writ ref'd) ("What is an infection and from

whence did it come are matters determinable only by medical experts.")); Hart v. Van

Zandt, 399 S.W.2d 791, 792 (Tex. 1966) ("In determining negligence in a case such as this,

which concerns the highly specialized art of treating disease, the court and jury must be

dependent on expert testimony. There can be no other guide, and where want of skill




Rodriguez v. Medders                                                               Page 10
and attention is not thus shown by expert evidence applied to the facts, there is no

evidence of it proper to be submitted to the jury.").

       The evidence established that Maxwell was placed at The Rose Home because

she was unable to care for herself and was totally incapacitated. Maxwell was 91 years

old at the time of her death. She had been prescribed pain medication by her physicians

prior to the development of the decubitus ulcers. Medders stated that shortly after the

discovery of the decubitus ulcers his mother passed away and that he believed that the

decubitus ulcer hastened her death, but there was no testimony regarding how the

ulcers resulted in Maxwell's death or what was established as her actual cause of death.

We do not find that, on the record before us, the causal nexus required to establish that

the decubitus ulcers caused Maxwell's death is within the general experience and

common sense of laypersons. As such, expert testimony was necessary. See generally,

Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010); Guevara v. Ferrer, 247 S.W.3d 662, 668-69

(Tex. 2007). We sustain issue one.

       Generally, if an appellate court holds there is legally insufficient evidence to

support a judgment after a trial on the merits, the proper disposition is to reverse and

render judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992); see

TEX. R. APP. P. 43.3, 60.2. However, when a plaintiff fails to present legally sufficient

evidence at an uncontested hearing on unliquidated damages following a no-answer

default judgment, the proper disposition is to remand for a new trial on the issue of


Rodriguez v. Medders                                                                 Page 11
damages. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam)

(citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992)). This is because

"the plaintiff should be afforded a second opportunity to present evidence in support of

its claims because as a practical matter, in an uncontested hearing, evidence of

unliquidated damages is often not fully developed." Id.

Conclusion

       Because there was legally insufficient evidence regarding the award of damages,

we reverse that portion of the judgment awarding the Medderses $250,000 in actual

damages and $500,000 in punitive damages. In all other respects, we affirm the trial

court's judgment.      We remand the cause to the trial court for further proceedings

consistent with this opinion.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed in part, Reversed and remanded in part
Opinion delivered and filed October 4, 2012
[CV06]




Rodriguez v. Medders                                                                 Page 12
