                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-15-00070-CV

                          SKYLINE EMS INC. and Juan “Johnny” Cordero,
                                        Appellants

                                               v.
                                               AR
                                        AR CONCEPTS INC.,
                                             Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014-CI-15618
                         The Honorable Richard E. Price, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: November 25, 2015

AFFIRMED

           This is an appeal from the trial court’s granting of a no-answer default judgment in favor

of A.R. Concepts, Inc. and against Skyline EMS, Inc. and Juan “Johnny” Cordero. Skyline and

Cordero contend that the trial court erred in granting a default judgment because their failure to

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

or mistake. We affirm the trial court’s judgment.
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                           FACTUAL AND PROCEDURAL BACKGROUND

       A.R. Concepts sued Skyline and Cordero for breach of contract. On October 10, 2014,

Skyline and Cordero were served with the lawsuit. When Skyline and Cordero failed to timely

answer, on November 12, 2014, A.R. Concepts appeared in district court and obtained a default

judgment against Skyline and Cordero for $66,220.48 plus $3,000 in attorney’s fees. On December

8, 2014, Skyline and Cordero filed a motion for new trial. Attached to the motion for new trial was

an affidavit by Cordero. In the affidavit, Cordero swore to the following:

    (1) He is employed by Skyline as Administrator;

    (2) After being served with the lawsuit, on October 21, 2014, Skyline entered into an
        agreement with Cain and Daniels, a debt settlement company;

    (3) Cain and Daniels advised Skyline and Cordero not to file an answer and told them
        that it would negotiate the debt;

    (4) Cain and Daniels failed to negotiate the debt, resulting in the granting of a default
        judgment; and

    (5) Skyline and Cordero have a meritorious defense because the amount of Skyline’s
        debt is incorrect.

In their motion for new trial, Skyline and Cordero, relying on Cordero’s affidavit, argued that their

failure to timely file an answer was the result of accident or mistake, rather than due to an

intentional act or conscious indifference. Specifically, they explained that the accident or mistake

that prevented them from filing an answer was their mistaken belief that Cain and Daniels was

settling the case. According to Skyline and Cordero, Cain and Daniels advised them not to file an

answer because it claimed it was going to settle the case, but, in fact, it failed to do so, which

resulted in the granting of a default judgment against them.

       After considering Skyline and Cordero’s motion for new trial, the trial court denied the

motion, and this appeal ensued.



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                                           DISCUSSION

        Skyline and Cordero argue that “the primary reason for their failure to file an answer was

based on the mistaken belief that Cain & Daniels were in the process of negotiating and/or had

already negotiated a settlement with [AR Concepts]” and that “Cain & Daniels specifically advised

[Skyline and Cordero] to not file an answer.” Thus, according to Skyline and Cordero, “[their]

failure to file an answer was not intentional or due to conscious indifference,” but “was due to an

accident and/or mistake.”

        A trial court’s grant or denial of a motion for new trial is within its sound discretion and

will not be disturbed on appeal absent a showing of abuse of discretion. Strackbein v. Prewitt, 671

S.W.2d 37, 38 (Tex. 1984). In determining whether to grant a new trial and set aside a default

judgment, a court applies the standard established by the Texas Supreme Court in Craddock v.

Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). Craddock requires the defendant to

demonstrate that (1) the failure to file an answer was not intentional or the result of conscious

indifference, but rather was due to an accident or mistake; (2) the motion for new trial sets up a

meritorious defense; and (3) the motion shows that the granting of a new trial will cause no delay

or injury to the plaintiff. Id. at 126.

        Courts should apply the first requirement under Craddock liberally, recognizing that each

case depends on its own facts. Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex. App.—Houston

[14th Dist.] 1988, no writ). Thus, a court should look to the knowledge and acts of the defendant

as contained in the record. Strackbein, 671 S.W.2d at 38-39. If there is no record of an evidentiary

hearing, in considering whether the first requirement is met, a court looks only at the defendant’s

motion and affidavit, and any response filed. Id. at 38.

        Further, a defendant who was duly served and who relied on his agent to file an answer

cannot “relieve himself of the burden of the judgment rendered unless he thoroughly demonstrates
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that he and his agent were free of negligence or conscience indifference.” Harris v. Lebow, 363

S.W.2d 184, 186 (Tex. Civ. App.—Dallas 1962, writ ref’d n.r.e.); see Holt Atherton Indus., Inc. v.

Heine, 835 S.W.2d 80, 83 (Tex. 1992) (citing Harris). A defendant does not relieve himself of this

responsibility if the record is silent as to why the agent acted as it did. See Harris, 363 S.W.2d at

186-87.

       In this case, Skyline and Cordero relied on the representations of their agent, Cain and

Daniels, a debt settlement company. According to Skyline and Cordero, Cain and Daniels

represented that the lawsuit would be settled and that there was no need to file an answer. Thus,

according to Skyline and Cordero, their agent’s failure to settle the lawsuit resulted in the taking

of the default judgment and their failure to answer was not intentional, but due to mistake.

However, the record is silent as to why their agent, Cain and Daniels, acted (or failed to act) as it

did. Under these facts, Skyline and Cordero have not relieved themselves of their responsibility of

showing why their agent acted (or failed to act) as it did. Therefore, the trial court did not abuse

its discretion in denying their motion for new trial.

       We affirm the trial court’s judgment.


                                                   Karen Angelini, Justice




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