                                  NO. 07-05-0400-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 MARCH 23, 2007
                         ______________________________

         JOE SIMMONS D/B/A CIMARRON CUSTOM HOMES, APPELLANT

                                           V.

            BOB MCKINNEY AND WIFE, LINDA MCKINNEY, APPELLEES
                    _________________________________

           FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY;

         NO. 2005-0000168M-CV; HONORABLE ROGER TOWERY, JUDGE
                     _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                       OPINION


      Appellant, Joe Simmons, appeals from the granting of a default judgment in favor

of appellees, the McKinneys, and the denial of his motion for new trial. By three issues,

Simmons contends that the trial court committed reversible error. We affirm.


                          Factual & Procedural Background


      Simmons entered into a contract to build a home for the McKinneys. Disputes arose

over the quality of the work performed by Simmons and Simmons’s ability to pay his
subcontractors. Eventually, the McKinneys fired Simmons. Simmons retained legal

counsel and threatened legal action. Simmons subsequently placed a mechanic’s and

materialmen’s lien on the McKinney property. The McKinneys then filed suit and obtained

service upon Simmons. The return of service on Simmons was filed with the District Clerk

on June 7, 2005. Simmons did not file an answer by June 27, the date the answer came

due. On July 19 at approximately 10:30 P.M. counsel for Simmons faxed a general denial

and counterclaim to the McKinneys’ counsel. The next morning, the McKinneys appeared

before the trial court, proved up the damages, and were granted a default judgment. Later

that day, at approximately 2:29 P.M., Simmons filed his answer and counterclaim with the

district clerk. Simmons did not receive notice of the default judgment taken against him

until August 24, 2005. Upon learning of the default judgment, Simmons filed a motion to

extend postjudgment deadlines, motion for new trial, and notice of appeal. The trial court

granted the motion to extend the postjudgment deadlines. The motion for new trial was

not set for hearing and was overruled by operation of law.


       Simmons contends by three issues that the trial court committed reversible error by:

1) granting a default judgment when Simmons had provided an answer and counterclaim

by fax to opposing counsel’s office pursuant to Texas Rule of Civil Procedure 21a; 2)

granting a default judgment when opposing counsel had constructive notice of an answer

and counterclaim and opposing counsel provided no notice of hearing on the default

judgment; and 3) not granting a new trial based upon the test in Craddock v. Sunshine Bus

Lines, Inc.




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                 Effect of Faxing the Answer to McKinney’s Counsel


       In his first two issues, Simmons posits that, since he faxed the answer and

counterclaim to counsel for the McKinneys, the McKinneys could not subsequently obtain

a default judgment, especially without giving notice of the default hearing. To support his

position, Simmons directs this court to Texas Rule of Civil Procedure 21a for the

proposition that, since McKinneys have never denied receiving the fax, at approximately

10:30 P.M., McKinneys had constructive notice of Simmons’s answer and could not obtain

a default judgment, especially without notice. See TEX . R. CIV. P. 21a. We disagree.


       First, the cases that Simmons cites for the proposition that constructive notice to the

McKinneys precludes a default judgment or, at least, requires the judgment to be set aside

are all cases construing Texas Rule of Civil Procedure 5 and are all cases where the

pertinent document was placed in the mail and mailed, not to opposing counsel as in this

case, but rather, to the appropriate clerk’s office. See Milam v. Miller, 891 S.W.2d 1, 2

(Tex.App.–Amarillo 1994, writ ref’d); Thomas v. Gelber Group, Inc., 905 S.W.2d 786, 789

(Tex.App.–Houston [14th Dist] 1995, no writ). In other words, they are cases where an

answer was filed as opposed to being served on opposing counsel. Simmons has directed

this court to no cases supporting the theory that an answer sent to counsel after hours by

fax will be construed the same as an answer filed at the courthouse via the “mail box” rule.

To answer a law suit, a defendant must make an appearance in the suit or file an answer

with the court seeking a judgment or decision by the court on some question. United Nat’l

Bank v. Travel Music of San Antonio, Inc., 737 S.W.2d 30, 33 (Tex.App.–San Antonio



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1987, writ ref’d n.r.e.). An appearance ordinarily means the process of submission of a

person to the jurisdiction of the court. Forty-Acre Spring Live Stock Co. v. West Texas

Bank & Trust Co., 111 S.W. 417, 419 (Tex. Civ. App. 1908, writ ref’d).


       Next, Simmons contends that, since the McKinneys had constructive notice via the

after hours fax, a hearing on the default judgment could not be held without actual notice

to Simmons. Again, the case cited by Simmons is distinguishable from the present case

because the defendant had made an actual appearance in the law suit before entry of the

default judgment. See Hamel v. Providence Const., Inc., No. 04-03-0766-CV, 2004 WL

1968277, at *1 (Tex.App.– San Antonio Sept. 8, 2004, pet. denied). A defendant who has

made an appearance in a cause is entitled to notice of the trial setting. LBL Oil Co. v. Int’l

Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). However Simmons did not make

an appearance in this law suit prior to entry of the default judgment.           Without an

appearance, the due process requirements for notice, as outlined in LBL Oil, were not

triggered and the Mckinney’s failure to give notice does not result in a requirement to

overturn the default judgment. Id. There having been no answer filed nor any appearance

made in court Simmons’s first two issues are overruled.


                                   Motion For New Trial


       Simmons’s last contention is that his motion for new trial should have been granted

because he demonstrated that his failure to file an answer was not intentional or due to

conscious indifference, but was due to mistake or accident; that his motion set up a

meritorious defense; and that granting the motion would not work an undue hardship on


                                              4
the McKinneys. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126

(1939). We disagree.


         Initially, we note that it is up to the trial court to determine whether Simmons met the

requirements of Craddock. We will not disturb the trial court’s ruling except upon a

showing that the ruling is an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778

(Tex. 1987). However, the trial court should liberally construe the evidence when passing

upon a motion for new trial. Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex.App.–San

Antonio 1987, no writ). When the guidelines of Craddock have been met, it is an abuse

of discretion to deny a new trial. Tanknology/NDE Corp. v. Bowyer, 80 S.W.3d 97, 100

(Tex.App.–Eastland 2002, no pet.).


         The first issue to be determined is whether Simmons’s failure to file an answer was

intentional or due to conscious indifference. Simmons avers that his failure to file an

answer was due to an accident or mistake. After reviewing the entire record, we find no

evidence supporting Simmons’s accident/mistake contention. Simmons simply states, in

his motion for new trial, that his failure to answer was an accident or mistake. Likewise,

Simmons’s trial counsel’s affidavit does no more than state that the failure to file was due

to accident or mistake. Nowhere, in fact, does Simmons identify why the answer was not

filed.


         We are aware that some excuse, and not necessarily a good excuse, will be

sufficient to grant a new trial. In re R.H., 75 S.W.3d 126, 131 (Tex.App.–San Antonio

2002, no pet.), overruled on other grounds by In re K.C., 88 S.W.3d 277, 278


                                                5
(Tex.App.–San Antonio 2002, pet. denied). An unchallenged assertion alone is enough

to warrant a new trial. Gen. Elec. Capital Auto Fin. Leasing Servs., Inc. v. Stanfield, 71

S.W.3d 351, 357 (Tex.App.–Tyler 2001, pet. denied). However, the movant’s motion and

evidence must set forth facts that, if true, would negate intentional or consciously

indifferent conduct. Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984).


       In the present case Simmons offered no excuse, good or bad, to explain his failure

to file an answer. In the light of the record, we conclude that Simmons has failed to negate

the trial court’s finding that Simmons’s failure to answer was intentional or the result of

conscious indifference. Nothing in this record supports a finding that the failure to answer

was the result of mistake or accident. Accordingly, Simmons’s contention alleging error

by the trial court in overruling his motion for new trial is overruled.


                                         Conclusion


       Having overruled Simmons’s contentions, we affirm the judgment of the trial court.




                                            Mackey K. Hancock
                                                Justice




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