                      COURT OF APPEALS
                      SECOND DISTRICT OF TEXAS
                           FORT WORTH

                            NO. 2-09-057-CV


HAMPTON-VAUGHAN FUNERAL                                     APPELLANTS
HOME, HAMPTON-VAUGHAN
FUNERAL DIRECTORS, HAMPTON-
VAUGHAN FUNERAL DIRECTORS,
INC., SCI FUNERAL SERVICES OF
TEXAS, INC., HAMPTON-VAUGHAN
CRESTVIEW MEMORIA, SCI TEXAS
FUNERAL SERVICES, INC., AND
CRESTVIEW MEMORIAL PARK

                                    V.

BEVERLY N. BRISCOE, DON I.                                    APPELLEES
BRISCOE, JR., REBECCA L.
LLENAS, LORI K. MORROW,
CHERL L. TEAGUE, THOMAS E.
BRISCOE, AND ANNA M. EVANS

                                ------------

        FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                ------------

                               OPINION
                                ------------

     This is an appeal from a no-answer default judgment. In three issues,

appellants––Hampton-Vaughan Funeral Home, Hampton-Vaughan Funeral
Directors, Hampton-Vaughan Funeral Directors, Inc., SCI Funeral Services of

Texas, Inc., Hampton-Vaughan Crestview Memoria, SCI Texas Funeral Services,

Inc., and Crestview Memorial Park––contend that the trial court abused its

discretion by (1) striking as untimely the second supplement to their motion to set

aside default judgment, (2) denying their motion to set aside default judgment,

and (3) awarding damages that lacked sufficient evidentiary support. We reverse

and remand for a new trial.

                               Background Facts

      Appellees––Beverly N. Briscoe, Don I. Briscoe, Jr., Rebecca L. Llenas,

Lori K. Morrow, Cherl L. Teague, Thomas E. Briscoe, and Anna M. Evans––sued

appellants   and   two   others   for   breach   of   contract,   fraud,   negligent

misrepresentation, fraudulent nondisclosure, intentional infliction of emotional

distress, negligence, negligence per se, negligent hiring, and DTPA violations

arising out of appellants’ alleged mishandling of the ashes of appellees’

deceased relative, Don Briscoe. Appellees requested actual damages, punitive

damages, DTPA damages, and attorney’s fees.

      Appellees served appellants but not the remaining two defendants.

Counsel for appellants and appellees agreed to a forty-five day extension on the

answer date.1 Despite the extension, appellants failed to file an answer, and

      1
       Appellants characterize the extension as a Rule 11 Agreement, and, as
evidence of the agreement, they submitted a thank–you letter from appellants’ in-
house litigation counsel, which is signed by both appellants’ and appellees’
attorneys, as Exhibit A to their motion for default judgment.
appellees moved for a default judgment over seven months later. Appellants did

not receive notice and thus did not respond.

      After a hearing on August 1, 2008, the trial court rendered a default

judgment against appellants on every cause of action except the negligent hiring

and DTPA claims. Although the trial court had orally pronounced judgment in

specific amounts for each appellee at the close of the hearing on the motion for

default judgment, the written judgment reflects only one award of $850,000 to all

appellees as a “collective unit.”2 Additionally, the trial court awarded appellees

$340,000 in attorney’s fees.

      Upon receiving notice of the default judgment, appellants timely filed a

motion to set it aside.   Attached to the motion is the affidavit of Christopher

Farmer, in-house litigation counsel for appellants.     Farmer averred that he

thought the parties’ representatives were going to meet and discuss settlement.

He understood that his presence at the meeting was not necessary, but he

assumed appellees’ counsel would contact him after the meeting to report

whether the case had settled. Further, Farmer said that he attempted to contact

appellees’ counsel several times, but his telephone calls were not returned. He

claimed that he received no further communication from appellees’ counsel or

      2
       The default judgment did not award appellees relief or damages against
the two named defendants who were never served. However, appellees
nonsuited their claims against them on November 25, 2008, thus making the
default judgment final and appealable. Farmer v. Ben E. Keith Co., 907 S.W.2d
495, 496 (Tex. 1995); Sheraton Homes, Inc. v. Shipley, 137 S.W.3d 379, 381
(Tex. App.––Dallas 2004, no pet.).

                                        3
any other communication about the case’s status until he received a notice of

default judgment.

        Appellants filed two supplements to their motion to set aside the default

judgment; the second supplement was filed more than thirty days after the trial

court rendered default judgment.3 At the hearing on the motion to set aside

default judgment, the trial court granted appellees’ motion to strike appellants’

second supplement for exceeding the thirty-day window in rule 329b.          See

generally Tex. R. Civ. P. 329b. The trial court subsequently denied the motion to

set aside the default judgment.

                         Striking of Second Supplement

        In their first issue, appellants contend that the trial court abused its

discretion by striking their second supplement to the motion to set aside default

judgment as untimely. The trial court signed the default judgment on August 22,

2008.       Appellants filed their motion to set aside the default judgment on

September 10, 2008, a supplemental motion that same day, and a second

supplement on October 22, 2008.         Appellees moved to strike the second

supplement, claiming that it was not filed within thirty days of the default

judgment as required by rule 329b(a).       Tex. R. Civ. P. 329b(a).   However,

because appellees did not nonsuit the two remaining defendants until November


        3
        The second supplement included an affidavit disputing appellees’
allegations in the suit and attempting to establish defenses to the individual
claims. In addition, appellants challenged the damages award.

                                        4
25, 2008, the default judgment was not yet final––and therefore not subject to the

rule 329b deadlines––until that date. See Clarendon Nat’l Ins. Co. v. Thompson,

199 S.W.3d 482, 492 (Tex. App.––Houston [1st Dist.] 2006, no pet.); Sheraton

Homes, Inc. v. Shipley, 137 S.W.3d 379, 381 (Tex. App.––Dallas 2004, no pet).

Accordingly, the trial court abused its discretion by striking appellants’ second

supplement as untimely. We sustain appellants’ first issue.

                         Propriety of Default Judgment

      In their second issue, appellants argue that the trial court erred by denying

their motion to set aside the default judgment.

      A default judgment should be set aside and a new trial granted when the

defaulting party establishes that (1) the failure to appear was not intentional or

the result of conscious indifference, but was the result of an accident or mistake,

(2) the motion for new trial sets up a meritorious defense, and (3) granting the

motion will occasion no delay or otherwise injure the plaintiff. Dolgencorp of

Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009); Craddock v. Sunshine Bus

Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). We review a trial court’s

refusal to grant a motion for new trial for abuse of discretion. Dolgencorp, 288

S.W.3d at 926; Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987). When a

defaulting party moving for new trial meets all three elements of the Craddock

test, then a trial court abuses its discretion if it fails to grant a new trial.

Dolgencorp, 288 S.W.3d at 926; Old Republic Ins. Co. v. Scott, 873 S.W.2d 381,

382 (Tex. 1994).

                                         5
      Failure to Answer Not Intentional or Result of Conscious Indifference

      In their initial motion to set aside, appellants contended that their failure to

answer was not the result of conscious indifference because their attorney “was

attempting to resolve matters . . . on a pre-litigation basis.” Farmer’s affidavit,

which was attached to the original motion, indicates that after appellees filed the

litigation, Farmer “entered into a Rule 11 agreement with [appellees’] counsel,”

which “involved an extension for the filing of an Answer.” The letter was attached

as an exhibit to the motion. Farmer also averred that

             4.    In addition to that correspondence, I had
      communications with counsel for [appellees] by which I understood
      that counsel for [appellees], and his clients, intended to meet with a
      representative of Hampton-Vaughan Funeral Home to discuss the
      circumstances of the incident made the basis of the suit. I
      understood that a Hampton-Vaughan representative was going to
      explain to the [appellees’] family what occurred and an attempt
      would be made at that time to resolve the litigation. It was not
      anticipated that I would be present at this meeting.

              5.    I assumed that the meeting would occur and that
      opposing counsel would get back with me on whether or not the
      litigation had been resolved.

             6.    I also phoned counsel a number of times during . . .
      Spring, 2008 and thereafter to determine the status, and did not
      receive a return call or communication. My next communication was
      receiving the default notice on Friday, August 29, 2008. . . .

             7.    The event of default judgment was not as a result of
      indifference on behalf of any of [appellants]. The anticipated
      meeting at Hampton-Vaughan did not occur and I did not become
      aware of that fact until after I learned of the default.

            8.     I did not receive any notice of the filing of [appellees’]
      motion for default or notice of the hearing (if any) on the default
      motion. If I had received notice of a hearing on [appellees’] Motion

                                          6
      for Default Judgment, I would have immediately retained counsel
      and had counsel file an Answer on behalf of all [appellants].

      Appellees responded to appellants’ motion and attached an affidavit from

their counsel. He does not confirm or deny that Farmer attempted to contact

him; however, he does contend that Farmer was consciously indifferent by failing

to make efforts to set up the meeting between a Hampton Vaughan

representative and appellees, and he also avers that he “did not agree to be

responsible for any aspect of arranging the proposed meeting.” Moreover, he

contends that the letter about extending the answer date was not an enforceable

Rule 11 agreement as Farmer claimed.

      Intentional or conscious indifference for purposes of Craddock means “that

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

Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006). A defendant’s mere

negligence does not show conscious indifference.        Id.; see also Levine v.

Shackelford, Melton, & McKinley, L.L.P., 248 S.W.3d 166, 168 (Tex. 2008)

(denying motion for rehearing).   A defendant must offer some excuse, which

need not necessarily be a good excuse. McClure v. Landis, 959 S.W.2d 679,

681 (Tex. App.––Austin 1997, pet. denied).

      Regardless of whether the letter attached to Farmer’s affidavit constituted

an enforceable Rule 11 agreement, Farmer knew that if the answer date had

been extended, it was for only a short time. But he also assumed that a meeting

would take place and that he would hear whether or not the suit was going to


                                       7
proceed; it is not clear whether Farmer thought appellees’ counsel was

responsible for arranging this meeting or whether a Hampton Vaughan employee

was responsible.     Regardless, this situation is unlike that in Levine v.

Shackelford, Melton, & McKinley, L.L.P., in which the attorney attempted but

failed to obtain an extension, agreed to answer by the deadline, failed to file an

answer, was contacted more than once by opposing counsel that the deadline

had been extended and that a default would be taken, emailed a draft answer to

opposing counsel, and yet attended mediation without having filed an answer.

248 S.W.3d at 168. Instead, the situation here is akin to mere negligence; there

is nothing to indicate that Farmer intentionally chose not to answer the suit.

Although his explanation and failure to act may be unreasonable behavior for an

attorney, it does not indicate a conscious decision to avoid answering the suit.

See Cervantes v. Cervantes, No. 03-07-00381-CV, 2009 WL 3682637, at *8

(Tex. App.––Austin Nov. 5, 2009, no pet.) (mem. op.). Accordingly, we conclude

and hold that appellants presented evidence satisfying the first Craddock factor.

      Appellants Presented Evidence of a Meritorious Defense

      Setting up a meritorious defense does not require proof “in the accepted

sense.” Dolgencorp, 288 S.W.3d at 927–28.          Rather, the motion sets up a

meritorious defense if it alleges facts which in law would constitute a 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. at 928.



                                        8
Once such requirements are met, controverting evidence offered by the

nonmovant should not be considered. Id.

      Appellants attached the affidavit of Billy Robinson, the general manager of

the funeral home, to the motion to set aside. He avers that, to the best of his

knowledge, the funeral home did not lose Don Briscoe’s remains and did not

substitute his remains “as alleged in the petition.” They also attached to the

second supplement the affidavit of Timothy Rolfs, the funeral home’s market

manager, along with a copy of a letter Rolfs had written to the Texas Funeral

Services Commission.     In the letter, Rolfs explains the funeral home’s usual

practices with regard to cremated remains and appellants’ version of what

happened specifically regarding Don Briscoe’s remains. According to Rolfs, a

funeral home employee was inventorying temporary urns, found Don Briscoe’s,

called Beverly Briscoe to see if she wanted the temporary urn, learned she had a

permanent urn with what she thought were Don’s remains, and asked if he could

come check the permanent urn.        The funeral home employee then went to

Beverly’s house, picked up the permanent urn, took it back to the funeral home,

opened it to check the medallion inside and verify that it matched the number for

Don Briscoe, then returned the urn to Beverly’s house, where he showed

Beverly’s daughter the remains and medallion inside.

      The version of the facts in Rolfs’s letter contradicts the factual allegations

in appellees’ petition, upon which all of their claims are based: that the funeral

home employee “discovered that the remains of Don I. Briscoe were, in fact, not

                                         9
delivered to [appellees] at the time that the urn was delivered” and that

appellants deceived appellees by tricking Beverly into returning the urn so that

the employee could surreptitiously place remains inside.        Appellees further

alleged that they do not know whose remains are now inside the urn. In effect,

appellants contend that the urn always contained Don’s remains, that they never

substituted his or any other person’s remains in the permanent urn, and that the

employee took the urn merely to verify that fact. Appellees, on the other hand,

maintain that there were no remains in the permanent urn until the funeral home

took it and placed unknown remains inside. If appellants’ version of the facts is

found to be true, appellees’ claims––which are all based on their alleged version

of events––must necessarily fail.     Accordingly, we conclude and hold that

appellants set up a meritorious defense to appellees’ claims. See id. at 928–29;

Anderson v. Anderson, 282 S.W.3d 150, 155 (Tex. App.––El Paso 2009, no pet.)

(“The true test is whether or not the defense raised and supported with evidence

would change the result of the default judgment.”).

      Appellees Did Not Prove They Would Be Injured by New Trial or Delay

      Appellants further contend that there is no evidence that appellees would

be unduly delayed or otherwise injured by a new trial. Appellants alleged in their

motion to set aside that they “offered to compensate opposing counsel for his

time in obtaining a default judgment so that [appellees] are not prejudiced.”

[Emphasis added.]      Appellees contend that appellants did not meet this

Craddock prong because they never stated that they were ready, willing, and

                                        10
able to go to trial immediately; appellees also contend that any offer to

compensate their attorneys for time spent on the default judgment was

inadequate.

      “Once a defendant has alleged that granting a new trial will not injure the

plaintiff, the burden of going forward with proof of injury shifts to the plaintiff.”

Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 270

(Tex. 1994). The purpose of this third element of the Craddock test is to protect

a plaintiff against the sort of undue delay or injury that would disadvantage her in

presenting the merits of her case at a new trial, such as a loss of witnesses or

other valuable evidence; evidence of a delay in obtaining compensation for

injuries for which a plaintiff is entitled is not the type of injury that this prong

speaks to. Id. at 270.

      Here, only three of the seven plaintiffs testified at the default judgment

hearing; appellees did not allege that any valuable evidence would be lost or that

essential witnesses would be unavailable for a new trial.        Appellees likewise

offered no other evidence that they would be injured by the granting of a new

trial; the only evidence put forward was that an offer by appellants’ counsel to

reimburse appellees’ counsel $500 would be inadequate to compensate

appellees’ counsel for his time spent obtaining the default judgment. Finally, the

absence of a statement by appellants that they are willing to go to trial

immediately is not dispositive. Id. at 270 n.3.; Jaco v. Rivera, 278 S.W.3d 867,

873–74 (Tex. App.––Houston [14th Dist.] 2009, no pet.).            Accordingly, we

                                         11
conclude and hold that appellants met the third Craddock factor because they

alleged that appellees would not be prejudiced by a new trial, and appellees

failed to bring forward any evidence proving that they would be injured. See

Evans, 889 S.W.2d at 270 (“The willingness of a party to go to trial immediately

and pay the expenses of the default judgment are important factors for the court

to look to in determining whether it should grant a new trial [but] are not

dispositive of whether the motion should be granted.”).

      Having determined that appellants met their burden as to all three

Craddock factors, we conclude and hold that the trial court abused its discretion

by denying their motion to set aside the default judgment. We sustain appellant’s

second issue.




                                       12
                                   Conclusion

      Having sustained appellants’ first and second issues, we reverse the

default judgment for appellees and remand the case for trial.4




                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: September 30, 2010




      4
        Having determined that the default judgment should be set aside, we
need not address appellants’ third issue challenging the legal and factual
sufficiency of the damages awarded by the trial court. See Tex. R. App. P. 47.1.;
Horsley-Layman v. Adventist Health Sys./Sunbelt, Inc., 221 S.W.3d 802, 809
(Tex. App.––Fort Worth 2007, pet. denied).
                                       13
