Opinion
No. 05-03-01704-CV
Opinion issued April 29, 2005.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. cc-03-9692-b.
Reversed and Remanded.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
MEMORANDUM OPINION
Standard Waste Systems, Ltd. filed a motion for rehearing, which we deny. Although we deny the motion, this Court's previous opinion of February 17, 2005 is withdrawn. This is now the opinion of the Court.
Lavender Enterprises, Inc. (Lavender) appeals a no-answer default judgment, awarding appellee, Standard Waste Systems, Ltd., (Standard Waste) $18,467.76 in damages and $8,310.49 in attorney's fees. In five issues, Lavender attacks the trial court's default judgment and its failure to issue findings of fact and conclusions of law. In its fourth issue, Lavender asserts the trial court erred in not granting its motion for new trial because the requirements for a new trial were met under Craddock. We agree the Craddock standards were met. Accordingly, we reverse and remand for further proceedings.
Factual and Procedural History
Lavender entered into a contractual agreement with Standard Waste for solid waste collection and disposal services on August 23, 2002. The contract included a formula for liquidated damages if Lavender breached the written agreement. Lavender failed to pay $2,997.85 due for waste collection and disposal service. Standard Waste filed suit on August 13, 2003, amending its original petition on August 21, 2003. Lavender was served with citation on August 25, 2003 but failed to file an answer or appear in court. Default judgment was rendered on October 21, 2003 for $18,467.76 in damages and $8,310.49 in attorney's fees.
On December 4, 2003, Lavender filed a motion for new trial, and on December 11, 2003, it filed a rule 306a motion to determine date of notice of default judgment. The trial court held a hearing on both the 306a motion and the motion for new trial on December 29, 2003. The trial court took the rule 306a motion "under advisement" and denied the motion. The trial court agreed it originally denied the motion because it had not seen the affidavit in the file. The trial court also denied the motion for new trial; with a denied rule 306a motion, Lavender noted the motion for new trial was untimely.
However, the court subsequently held a rehearing for the rule 306a motion on January 16, 2004. By written order, the trial court granted the rule 306a motion and established the date Lavender received notice of the default judgment as November 11, 2003.
The trial court then reheard the motion for new trial on February 6, 2004; the motion was no longer untimely. However, the trial court again denied Lavender's December 4, 2003 motion for new trial. The record of that February 6, 2004 hearing is before us on appeal.
Jurisdiction
We first address Standard Waste's issue regarding this Court's jurisdiction. In contending this Court is without jurisdiction, Standard Waste states that (1) Lavender's notice of appeal was not timely filed and (2) Lavender's rule 306a motion was insufficient to reinvoke the trial court's jurisdiction. We disagree with both arguments.
Once the trial court determined the date Lavender received notice of the default judgment was November 11, 2003, any time period that ran from the signing of the judgment began on November 11, 2003. See Tex.R.App.P. 4.2; Tex. R. Civ. P. 306a. Accordingly, Lavender's December 4, 2003 notice of appeal was timely filed.
Standard Waste also challenges the sufficiency of Lavender's rule 306a motion to reinvoke the trial court's jurisdiction, stating that this Court has no jurisdiction over this appeal because "the trial court had no jurisdiction to sign the Order on Defendant's Rule 306A Motion." Standard Waste finds two faults with Lavender's rule 306a motion. First, it complains that Jim Lavender swore only to the facts stated in his affidavit and did not swear to the facts stated in the motion. However, an unsworn motion with an attached sworn affidavit is sufficient to satisfy the requirements of civil procedure rule 306a. See Womack-Humphreys Architects, Inc. v. Barrasso, 886 S.W.2d 809, 814 n. 4 (Tex.App.-Dallas 1994, writ denied) (discussing Tex. R. Civ. P. 306a(5)). Second, Standard Waste complains that the "sworn motion" sets out only the date Lavender received notice of the judgment and does not establish the first date that Lavender acquired actual knowledge of the judgment. A review of his sworn affidavit reveals that Mr. Lavender indicated that he received "first notice or actual knowledge" of the entry of the judgment on November 11, 2003. We conclude the affidavit is sufficient.
Finding no merit in Standard Waste's jurisdictional arguments, we turn to Lavender's appellate arguments.
The Record
In its brief and on rehearing, Standard Waste argues that Lavender waived its complaint because it failed to bring forth a "statement of facts"-a reporter's record-of the "evidentiary hearing" regarding the motion for new trial. However, we have a record of the rehearing on the motion for new trial.
The motion for new trial could not be heard on December 29, 2003 as at that time, the trial court denied Lavender's rule 306a motion, making Lavender's motion for new trial untimely. Because the motion for new trial was at that time untimely, the trial court should not have considered the substance of the motion. See Tex. R. Civ. P. 306a, 329b(a). However, once the court declared the date Lavender received notice was November 11, 2003, the motion for new trial was no longer untimely. The court properly considered the substance of the motion in a hearing on February 6, 2004. The record of that hearing is before the court.
We know from the February 6, 2004 record that no live testimony was presented at the December 28, 2003 hearing. Instead, affidavits were presented to the trial court and attached to the motions. At the February 6, 2004 hearing, again there was no live testimony, and no additional evidence was presented-by either Lavender or Standard Waste. With no live testimony, we reference the affidavits presented with the motions to review the motion for new trial. See Freeman v. Pevehouse, 79 S.W.3d 637, 644 (Tex.App.-Waco, 2002, no pet.); see also Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984) (in absence of request for additional evidence, affidavits are sufficient to stand as evidence before trial court on motion for new trial). The affidavits presented with the motions are included in the record before this Court. Accordingly, Lavender has provided this Court with a record of the evidence regarding the motion for new trial as well as a record of the hearing on the motion for new trial sufficient for appellate review.
Motion for New Trial
In its fourth issue, Lavender argues the trial court erred in refusing to vacate the default judgment because it met the Craddock requirements for new trial. We agree.
A motion for new trial is addressed to the trial court's discretion, and the trial court's ruling will not be disturbed absent a clear abuse of discretion. Strackbein, 671 S.W.2d at 38. The Craddock court set forth the guiding rule or principle that trial courts are to follow in determining whether to grant a motion for new trial. Id. A default judgment should be set aside if the defendant establishes that (1) its failure to answer was neither intentional nor the result of conscious indifference, but was due to mistake or accident; (2) it has a meritorious defense; and (3) granting its motion for new trial would not cause delay or otherwise injure the plaintiff. Id. (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939)).
The record shows that Lavender's failure to appear at trial was not intentional or the result of conscious indifference. In his affidavit, Mr. Lavender explained that, based upon a conversation he had with Standard Waste's area manager, Lavender made a check payable to Standard Waste's attorneys in the amount of $3,241.41 in full satisfaction of all claims relating to the account. Mr. Lavender stated that Lavender did not answer the lawsuit because it relied upon the area manager's representation on behalf of Standard Waste that the payment of $3,241.41 was accepted by Standard Waste in full settlement of the account. He added he "expected [Standard Waste] to honor its agreement and dismiss the lawsuit." Mr. Lavender's assertion regarding the payment of $3,241.41 in full payment of all claims under the contract is supported by an affidavit from Pat Berry, an individual present during the conversation with the area manager. These affidavits are uncontroverted. We conclude the affidavits are sufficient to show facts which, if true, would negate intentional or consciously indifferent conduct. See Cliff v. Huggins, 724 S.W.2d. 778, 779 (Tex. 1987).
The record also shows that the two remaining Craddock requirements have been met. Lavender has set up the meritorious defense of accord and satisfaction. Further, the record shows that granting the motion for new trial will not work injury to Standard Waste.
Standard Waste argues that Lavender has not met the third requirement of Craddock because Lavender has not offered to pay all expenses incurred by Standard Waste in obtaining the default judgment. In its motion for new trial, Lavender stated that the granting of the motion would "occasion no delay or otherwise injure any other party" and that it was "ready to set the case for trial at the Court's most immediate convenience." Also Lavender offered a "reasonable attorney's fee of $900 possibly incurred by Plaintiff in obtaining the default judgment." Standard Waste asserts that by "refusing in advance to make full payment," Lavender has "invited the denial" of its motion for new trial.
Factors for the trial court to consider before granting a new trial include a defendant's offer to reimburse the plaintiff for costs incurred in obtaining the default judgment and a defendant's readiness for trial. See Cliff, 724 S.W.2d at 779 (citing Angelo v. Champion Rest. Equip. Co. 713 S.W. 2d 96, 97 (Tex. 1986)). However, they are not prerequisites for granting the motion. Id. A court should "deal with the facts on a case-by-case basis in order to do equity. Failure to offer reimbursement should not in every instance preclude the granting of a new trial." Angelo, 713 S.W. 2d at 98. Once the defendant has alleged that the granting of the new trial will not delay or otherwise injure the plaintiff, as Lavender has in this case, the burden of proof of injury shifts to the plaintiff. Cliff, 724 S.W.2d at 779. The purpose of the third requirement of Craddock is to protect a plaintiff against undue delay or injury that would disadvantage it in presenting the merits of its case at a new trial, such as the loss of witnesses or other evidence. See Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994). The record before this Court shows no damaging delay or injury to Standard Waste.
Having concluded that the requirements of Craddock have been met, we hold the trial court abused its discretion in not granting Lavender's motion for new trial. See Strackbein, 671 S.W.2d at 38. We need not discuss Lavender's remaining four issues.
The judgment of the trial court is reversed, and this cause is remanded to the trial court for further proceedings.