Affirmed and Majority and Dissenting Opinions filed February 5, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00602-CV
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HORNELL BREWING CO., INC. (A/K/A ARIZONA), Appellant
V.
MODESTO TONY LARA, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2005-27494
D I S S E N T I N G O P I N I O N
I respectfully dissent. Because the defendant offered in the trial court to go to trial within two months of the motion for new trial hearing, and because the defendant also offered on appeal to pay Lara=s reasonable attorney=s fees and costs incurred in obtaining the default judgment, I would vacate the judgment and remand to the trial court.
At the motion for new trial hearing, the trial court was operating under two misconceptions. First, rather than focusing on the only pertinent question at a Craddock hearingCwhether the three prongs of Craddock were satisfied and specifically here, whether the failure to answer was the result of mistake or accident rather than intentionalCshe focused on the defendant=s procedure for handling process, which she thought was cumbersome and designed to fail.[1]
Second, she believed that part of a defendant=s burden at a motion for new trial includes a showing Athat there will be no prejudice to the plaintiff, and that part of that showing requires that the defendant offer to pay the plaintiff=s expenses so far in obtaining [the] default judgment.@ The Texas Supreme Court has not held that a defendant must offer to pay reasonable expenses and indicate a willingness to go to trial immediately before a new trial may be granted. In fact, the Court had this to say about that:
Although [an offer to pay and readiness to go to trial] may be important factors for the court to look to in determining whether it should grant a new trial, they should not be the sine qua non of granting the motion. United Beef Producers v. Lookingbill, 532 S.W.2d 598, 599 (Tex. 1976).
Involved is an equitable principle, and the 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. Dallas Heating Co., Inc. v. Pardee, 561 S.W.2d 16 (Tex. Civ. App.CDallas 1977, writ ref=d n.r.e.). The goal to be achieved is to not injure the plaintiff or unduly delay him by granting the motion.
Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 98 (Tex. 1986). If we apply this last principleCof not injuring the plaintiff or unduly delaying him by granting the motionCto this appeal, I believe the principle is met.
At the motion for new trial hearing below, Hornell offered to go to trial within two months from the hearing. And, although Hornell argued against paying Lara=s fees and expenses, this position arguably had some merit. The record indicates that before Lara sued, it had undertaken settlement negotiations with Hornell=s insurer regarding Lara=s claims against Hornell.[2] When they did not settle, Lara sued. From Hornell=s perspective, Lara knew Hornell=s contact informationCincluding its mailing addressCfrom correspondence between Lara and Hornell=s insurer, Lara knew that Hornell was a solvent defendant, and Lara knew that Hornell would defend itself if sued. Under these circumstances, Hornell thought it rather unprincipled of Lara to obtain a default judgment against Hornell rather than contacting Hornell when it did not answer.
Regarding the third prongCinjury or delayCthe plaintiff showed no harm attributable to delay other than having to repeat his testimony and not having the case finalized. These reasons typically do not qualify as an injury that would defeat a valid Craddock motion. See Dir., State Employees Workers= Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994) (stating that the purpose of the third prong of the Craddock test is to protect a plaintiff against the sort of undue delay or injury, such as the loss of witnesses or other valuable evidence, that would disadvantage the plaintiff in presenting the merits of his case at a new trial). This prong of Craddock requires inquiry into whether the substance of the plaintiff=s case has been injured by the delay, and not whether the plaintiff will be required to do something he would have had to doCtestify at trialCeven in the absence of default. See id.; see also Jackson v. Mares, 802 S.W.2d 48, 52B53 (Tex. App.CCorpus Christi 1990, writ denied). Here, Lara neither alleged nor proved any threat to his ability to present his case again at a new trial. See Jackson, 802 S.W.2d at 52B53; Mosharaf, 794 S.W.2d at 586. Furthermore, Lara failed to present any competent medical evidence in support of his claim that repeating his testimony at a new trial would cause him injury. See Mosharaf, 794 S.W.2d at 586. Moreover, the record does not reflect any special circumstances which would impose any hardship upon Lara if Hornell=s motion for new trial were granted. See Dallas Heating Co. v. Pardee, 561 S.W.2d 16, 22 (Tex. Civ. App.CDallas 1977, writ ref=d n.r.e.).
For these reasons, I would vacate the judgment and remand the case to the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Majority and Dissenting Opinions filed February 5, 2008.
Panel consists of Justices Yates, Fowler, and Guzman (Yates, J. majority).
[1] The defendant=s procedure was no different from several other companies whose motions for new trial were upheld on the basis of mistake without any mention of the procedures they had instituted for forwarding process. See Triad Contractors, Inc. v. Kelly, 809 S.W.2d 683, 684, 686 (Tex. App.CBeaumont 1991, writ denied) (process papers received and forwarded by registered agent for service of process to a second party, who then forwarded the same to a third party who lost them; accident prong of Craddock test held satisfied); State Farm Life Ins. Co. v. Mosharaf, 794 S.W.2d 578, 580B81, 584 (Tex. App.CHouston [1st Dist.] 1990, writ denied) (process papers lost by the fourth party after having been received and forwarded by the defendant=s registered agent for service of process to two other parties; accident prong of Craddock test held satisfied); see also Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574B76 (Tex. 2006) (per curiam) (process papers received by registered agent for service of process and lost before being forwarded to general counsel; accident prong of Craddock test held satisfied); Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984) (defendant served with process, but papers not forwarded to defendant=s counsel due to mistake made by defendant=s secretary; accident prong of Craddock test held satisfied); Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 124B26 (1939) (process papers received and forwarded by defendant=s agent to a second party, who then forwarded the same to the defendant=s insurer, where they were misplaced; Court held that the defendant=s Afailure to answer was on account of a mistake and was not intentional@).
[2] During the settlement negotiations, Hornell requested to inspect the bottle at issue, and apparently Lara denied that request. At the motion for new trial hearing, Hornell=s counsel indicated that she would be ready to proceed to trial as soon as Hornell received the bottle from Lara and completed testing on it.