AFFIRIVI; Opinion Filed February March 1, 2013.
In The
Inttrt uf \ppia1s
iftIi Jitrict uf ixa at ThtIta
No. 05-1 1-01647-CV
CHRISTOPHER UTZ; EVANS ENVIRONMENTAL CONTRACTING,
LLC; UTZ ENVIRONMENTAL SERVICES OF DALLAS, LLC; AND
UTZ ENVIRONMENTAL SERVICES OF AUSTIN, INC., Appellants
DUFFY MCKENZIE, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No, DC-i 1-08418
OPINION
Before Justices Moseiey, Francis, and Lang
Opinion by Justice Lang
This appeal arises from a default judgment rendered by the trial court in favor of appellee
Duffy McKenzie against appellants Christopher Utz; Evans Environmental Contracting, LL.C.;
Utz Environmental Services of Dallas, L.L.C; and Utz Environmental Services of Austin, Inc.
Appellants filed a motion for new trial, which the trial court denied. Additionally, the trial court
denied appellants’ subsequent motion to reconsider their motion for new trial.
In two issues on appeal, appellants contend the trial court abused its discretion by
denying their motion for new trial and motion to reconsider. Further, appellants have filed a
motion in this Court for sanctions against McKenzie’s counsel for alleged misrepresentations in
McKenzie’s appellate brief. We decide appellants’ two issues against them and deny appellants’
motion for sanctions. The trial court’s judgment is affirmed.
I. FACTUALANDPROCEDURALBACKGROUNI)
In his petition, which was filed on July Ii. 2011, McKenzie asserted he had been
employed by appellants and was seeking to recover payment for his work. On August 17. 2011,
each appellant was served with citation and a copy of the petition.
On September 13, 2011, McKenzie filed a motion for partial default judgment in which
he sought a default judgment as to liability. He contended a default judgment was proper
because “the deadline for Defendants to file an answer or other pleading has passed and the
citation and proof of service have been on file with this Court lbr at least ten days.” The trial
court rendered judgment in favor of McKenzie as to liability in an order dated September 14.
2011. Subsequently, McKenzie filed a motion for final default judgment. The trial court signed
a “Final Judgment” in favor of McKenzie dated September 21, 2011. and awarded him
$33,933.20 in damages and attorney’s fees, plus post-judgment interest and additional amounts
in the event of unsuccessful appeals by appellants.
Appellants filed a “Motion to Set Aside Default Judgment and Motion for New Trial” on
October 21, 2011 (the “motion for new triafl. Appellants stated in part that their failure to
answer was “due to a mistaken belief that both parties were interested in and actively pursuing a
settlement of the Plaintiff’s claims.” Additionally, appellants asserted their failure to answer was
“unintentional, accidental, and not a result of conscious indifference.” Attached to appellants’
motion was an October 21,2011 affidavit of Christopher Utz. In his affidavit, Utz stated, in part,
(I) he was appearing on behalf of himself and the three other appellants described above and (2)
on August 17, 2011, he “called attorney Thomas Urquidez, counsel for Plaintiff, regarding this
suit filed against me and my companies” and “indicated” to Urquidez that he was “interested in
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pursuing settlement negotiations.” According to 1hz. “Mr. Urquidcz indicated that he would
consult with his clients and get back to me.” but Utz never heard from Mr. Urquidcz again.”
Utz stated. “I was not aware that the litigation was proceeding without my involvement. I was
under the impression that attorney Thomas Urquidez would contact inc regarding further
settlement negotiations.”
McKenzie filed a response to appellants’ motion for new trial on November 9, 2011.
McKenzie argued, inter cilia, that appellants “cannot show their failure to answer was not
intentional or the result of conscious indifference” and therefore cannot satisfy the standard for
granting a new trial. Attached as an exhibit to McKenzie’s response was an affidavit of
Urquidez in which he testified he (1) is McKenzie’s attorney in this case. (2) “never spoke with
Christopher Utz in this case.” and (3) “never represented to Christopher Utz that we were
engaging in settlement discussions in this case.”
Appellants filed a reply to McKenzie’s response on November I I, 2011. In their reply.
appellants asserted that in addition to speaking with Utz by phone on August 17, 2011,
“Urquidez communicated electronically with attorney Steve Norris, settlement counsel only.”
Specifically, appellants described an October 18,2011 email from Urquidez to Norris. Attached
to appellants’ response was, inter allis, an undated affidavit of Norris. Norris stated in part in his
affidavit that he “did not serve Defendants as litigation counsel,” but “contacted Plaintiffs
counsel, Thomas J. tJrquidez, on Defendants’ behalf to discuss possible settlement of this
matter.”
At the hearing on appellants’ motion for new trial, McKenzie objected to the trial court
considering the evidence attached to appellants’ reply. McKenzie argued appellants’ reply had
been filed more than thirty days after the judgment and was therefore untimely and “an absolute
nullity.” McKenzie’s objection was sustained by the trial court.
3
The trial court took judicial notice of the affidavits attached to appellants’ motion for new
trial and McKenzie’s response. Then, appellants called Urquidez as a witness. Urquidez
testified on cross-examination that in 2010. he represented three individuals in cases against Utz
for unpaid wages and settlements were reached in each case. Urquidez testified he did not
engage in settlement negotiations in the present case and had never
6
‘ spoken to [Utz] about this
case.” Additionally, in response to a question pertaining to his negotiation of settlements in prior
cases with Utz, Urquidez testified that after obtaining the default judgment in this case, he was
contacted by an attorney “calling on behalf of a Mr. Charles Utz, who is Chris’ dad.” According
to Urquidez, that attorney “knew that I’d gotten a default on one of the eases, he knew that I had
other pending cases.” llrquidez testified the attorney told him “Chris had put the cases in his
desk. you know, and did not want to respond to them.” Appellants objected to Urquidcz’s
testimony as “nonresponsive.” The trial court overruled that objection.
On direct examination, Urquidez testified the default judgment in this case was “entered
well before I had any contact with Mr. Norris.” Further, Urquidez asked the trial court to admit
into evidence two email exchanges between him and Norris, dated October 11, 2011, and
October 18,2011, respectively, fbr the purpose of showing that “Mr. Utz admitted that he knew
of the default being already entered as of October the 11th.” On voir dire examination,
appellants objected to the proffered emails “on the basis of hearsay.” Urquidez responded,
“Your Honor, that’s a party admission, Your Honor, so it goes against the hearsay rule.” The
trial court overruled appellants’ objection and admitted the proffered emails into evidence.
Then, on redirect examination, Urquidez testified, in part as follows:
On or about October 11th, 1 was contacted by Mr. Steve Norris. He told me he
was contacting me on behalf of Charles Utz, who is Chris lJtz’s dad, and Mr. Utz.
He said, you know, Chris put these things in a drawer, he didn’t want to deal with
them.
4
Additionally. lJrquidez testified he spoke by phone with titz on August 17, 2011, but that phone
conversation was not in regard to the present case ‘r any way regarding sett1ement.’
The trial court denied appellants’ motion for new trial. Appellants filed a motion to
reconsider in which they, inter alice, restated their previous arguments respecting their failure to
answer. Specifically, appellants contended Utz’s October 21, 2011 affidavit demonstrated
appellants “were not indifferent to having been sued but were attempting to resolve the
situation.” Appellants’ motion to reconsider was denied by the trial court) Additionally, the
trial court denied a request by appellants for findings of fact and conclusion of law. This appeal
timely followed.
H. DENIAL OF MOTION FOR NEW TRIAL
A. Standard ofReview and Applicable Law
“[Al default judgment should be set aside and a new trial granted when the defaulting
party establishes that (I) 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 Ta. Inc. v. Lenna, 288 S.W.3d 922, 925 (rex. 2009) (citing
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (‘rex. 1939)); see Sutherland v.
Spencer, 376 S.W.3d 752, 754 (Tex. 2012). We review a trial court’s refusal to grant a motion
for new trial for abuse of discretion. See, ag.. Dolgencorp, 288 S.W.3d at 926; Cliffv. Huggins,
724 S.W.2d 778, 778 (Tex. 1987). A trial court abuses its discretion if it fails to grant a new trial
when all three elements of the Craddock test are met. Dolgencorp, 288 S.W.3d at 926; Old
Republic Ins. Ca v. Scott, 873 S.W.2d 381, 382 (rex. 1994). The defaulting defrndant has the
The record includes a notice of hearing respecting appellants’ motion to reconsider. Further, the trial court’s order
denying that motion states that it “came to be heard” on the same date it was denied. However, the record contains
no transcript of a hearing on appellants’ motion to reconsider.
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burden of proving all three elements of the Craddock test before a trial court is required to grant
a motion for new trial. Scenic Mountain Mect Ctr. v. Castillo, 162 S.W.3d 587, 590 (Ta.
App.—El Paso 2005, no pet); Freeman v. Pevehouse, 79 S.W.3d 637, Ml (Ta. App.—Waco
2002, no pet).
“Consciously indifferent conduct occurs when ‘the defendant knew it was sued but did
not care.’” Sutherland, 376 S.W.3d at 755 (citing Fict & Guar. Ins. v. Dreweiy Constr. Ca,
inc., 186 S.W.3d 571, 576 (Tex. 2006)). “Generally, ‘some excuse, although not necessarily a
good one, will suffice to show that a defendant’s failure to file an answer was not because the
defendant did not care.” Id. (citing In re R.R., 209 S.W.3d 112, 115 (rex. 2006)); see Smith v.
Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (“failure to appear is not
intentional or due to conscious indifference. . . merely because it is deliberate; it must also be
without adequate justification”).
In determining whether a failure to appear was due to intentional disregard or conscious
indifference, we must look to the knowledge and acts of the defendant. Director, State
Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (rex. 1994);
Strackbein v. Prewitt, 671 S.W.2d 37, 38—39 (rex. 1984). Where the factual allegations in a
movant’s affidavits are not controverted, it is sufficient that the motion and affidavit set forth
facts which, if true, would negate intentional or consciously indifferent conduct Strackbein, 671
S.W.2d at 38-39. However, where the non-movant presents evidence at the new trial hearing
tending to show intentional or consciously indifferent conduct, it becomes a question for the trial
court to determine. Freeman, 79 S.W.3d at Ml; Jackson v. Mares, 802 S.W.2d 48, 50 (rex.
App.—Corpus Christi 1990, writ denied); Munson v. State, 576 S.W.2d 440,441-42 (rex. Civ.
App.—Austin 1978, writ, refd n.r.c.); see also Evans, 889 S.W.2d at 269 (to determine if
defendant’s factual assertions are controverted, trial court looks to all evidence in record). “As
6
the sole judge of the credibility of the witnesses and the weight to be given to their testimony. the
trial court may choose to believe all, none, or part of a witness’s testimony.” Stein v. Meachum.
748 S.W.2d 516. 517 (Tex. App.— Dallas 1988. no writ): accord .4lariincz v. Martinez. 157
S.W.3d 467. 470 ([cx. App.— Houston [14th Dist.] 2004. no pet.): Gilbert it Iircnrnell Eketro.
832 S.W.2d 143, 14445 (Tex. App.—Tyler 1992. no writ); see Rodriguez v. Medders, No. 10-
1 l-00369-CV, 2012 WL 4862588, at 3 (Tex. App.—Waco Oct. 4, 2012. no pet.) (mem. op.)
(“A trial court can reasonably believe, based on contradictory evidence, that there was
intentional or consciously indifferent conduct on the part of a defendant”).
B. Analysis
In their two issues, appellants assert the trial court erred by not granting their motion for
new trial or their motion to reconsider. We address appellants’ two issues together.
Appellants contend in part that in their motion for new trial, they “demonstrated that their
failure to answer was neither intentional nor due to conscious indifference but occurred as a
result of Christopher Utz’s mistaken belief that the lawsuit would be resolved through settlement
negotiations and lack of awareness of the need for an answer.” According to appellants, (1) “the
Texas Supreme Court has held that affidavits that ‘show neither intent nor indifference’ are
sufficient to satisfy the first prong of the Craddock standard” and (2) Utz’s October 21, 2011
affidavit demonstrated neither intentional Ihilure to respond nor indifference. Additionally,
appellants assert 3
it would be contrary to reason and to justice to hold that a pm se defendant’s
mistaken belief that an answer was unnecessary due to the likelthood of settlement based upon a
history of settlement in similar cases with the same attorney is insufficient to merit a new trial.”
McKenzie responds that appellants’ contention that “they allegedly believed that
negotiations were ongoing between themselves and [Urquidez]” was “fully rebutted by Appellee
McKenzie who showed that there were no ‘settlement negotiations.” Further, McKenzie argues
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Urquidez “testified that Appellants’ counsel at one point contacted him and admitted that
Appellants had received the Lawsuit and had chosen to ignore it.” According to McKenzie.
“[bIased on such conflicting testimony. the trial court could have easily determined that the
Appellants’ failure to tile an Answer was not the result of ‘mistake’ but rather more akin to
either conscious indifibrence or intent.” Additionally, McKenzie asserts the trial court properly
denied appellants’ motion to reconsider (1) fbr the same reasons described above for denying the
motion for new trial and (2) alternatively, because the motion to reconsider constituted an
amended motion for new trial and, as such, was not timely filed.
We begin with appellants’ argument that Utz’s October 21, 2011 affidavit was sufficient
to satisfy the first prong of Craddock. In their reply brief in this Court, appellants contend their
“claim of failure to answer due to their mistaken belief that the panics were interested in
settling” was “uncontroverted.” According to appellants. “[p]erhaps the only controverting
evidence offered by Appellee is the hearsay within hearsay testimony of [Urquidez] that [Norris].
who was not hired as counsel by Appellants but merely sought to assist Appellants to reach a
settlement with Appellee, stated to Urquidez that LUtz] stated to [Norris] that Appellants had
ignored the lawsuit” However appellants contend, “such hearsay within hearsay testimony was
inadmissible and should not have been considered by the trial [court].” Specifically, appellants
argue for the first time in their appellate reply brief that the trial court’s determination that such
hearsay testimony was a “party admission,” and therefore admissible over appellants’ hearsay
objection, was in error because there was no evidence before the trial court to support such a
determination. Further, appellants argue the affidavit of Norris attached to appellants’ reply in
the trial court shows that Norris’s relationship to appellants was not one that would support a
detennination as to a party admission. Appellants request in their reply brief that this Court “rule
on their objection as to hearsay.” However, even assuming without deciding that appellants’
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hearsay objection can be construed to relate to Urquidez’s testimony about Norris’s comments to
him, the record does not show appellants objected in the trial court to the trial judges ruling
respecting a “party admission” or addressed that matter in their appellate brief
2 See Tux, R. APP.
P. 33.1, 38.1. Appellants assert in their reply brief in this Court that they “did not previously
raise this error of the trial court” because “the issue was not ripe” until McKenzie “attempted to
use such inadmissible testimony in support of his [appellate] Response Brief” However,
appellants were required to make their complaint respecting the trial court’s “party admission”
ruling in a timely manner. See TEx. R. App. P. 33.1; First Nat’! Collection Bureau, Inc. v.
Walker, 34% S.W.3d 329 (Tex. App.—J)allas 2011, pet. denied) (objection is “timely urged”
when asserted at either earliest opportunity or when potential error becomes apparent). We
conclude appellants’ argument respecting the trial court’s overruling of their hearsay objection
on the ground of a “party admission” presents nothing for this Court’s review. See Tux. R. App,
P.33.1,38.1.
The record shows Urquidez testified in his affidavit and at the hearing that he did not
speak with Utz about this case or represent to Utz that he was engaging in settlement discussions
as to this case. Further, Urquidez testified the default judgment in question was entered “well
before” he had any contact with Norris. Additionally, Urquidez testified Norris told him Utz put
the cases in a drawer and “didn’t want to deal with them.” On this record, we cannot agree with
appellants that Utz’s October 21, 2011 affidavit was uncontroverted. See Evans, 889 S.W.2d at
269. Consequently, the issue of whether appellant’s conduct was intentional or consciously
indifferent was a question for the trial court. See Freeman, 79 S.W.3d at 641; Jackson, 802
S.W.2d at 50; IvIunson, 576 S.W.2d at 44 1-42. As the sole judge of the credibility of the
2
Further, the record shows appellants did not object to the trial court’s ruling that their reply in the trial court was
untimely and they do not challenge that ruling on appeal. See Moritz v Preiss, 121 S.W.3d 715. 720 (Tex. 2003)
(untimely amended motion for new trial does not preserve issues for appellate review and is nullity).
witnesses and the weight to be given to their testimony, the trial court could choose to believe
all, none, or part of the testimony. See Stein, 748 SW2d at 517; Martinez, 157 S.W.3d at 470;
Gilbert, 832 S.W.2d at l44.45.
Appellants do not explain how putting cases in a drawer to avoid having to “deal with
them” constitutes an accident or mistake, nor do appellants cite authority for that position. We
conclude appellants have not satisfied the first Craddock element. See (Jraddock, 133 S.W.2d at
126; Dolgencorp. 288 S.W.3d at 925; see also Sutherland, 376 S.W.3d at 755 (“Consciously
indifferent conduct occurs when ‘the defendant knew it was sued but did not care.”).
Consequently, the trial court did not abuse its discretion by denying appellants’ motion for new
trial and their motion to reconsider. See Dolgencorp, 288 S.W.3d at 926; Old Republic Ins. Co.,
873 S.W.2d at 382.
We decide against appellants on their first and second issues.
Hi. APPELLANTS’ MOTION FOR SANCTIONS
In their appellate reply briefi appellants included a motion for sanctions in which they
request that this Court “impose reasonable and appropriate sanctions against Urquidez for his
violations of the Texas Disciplinary Rules of Professional Conduct and such further sanctions as
Court [sic] finds proper for the numerous misrepresentations and fallacious statements
throughout Appellee’s [appellate brief].”
3 We note that specific sanctions are not requested.
Appellants pray for sanctions as this Court “deems proper” or “as Court [sic] finds proper.”
Specifically, appellants contend Urquidez (I) falsely represented that the trial court found
appellants had failed to satisfy the first prong of the Craddock standard, when the record shows
Additionally, in their reply brief appellants “object” to McKenzie’s appellate brief on the ground that Urquidez
“made numerous misrepresentations of fact, law, and precedents to this Court” therein. Appellants request in their
reply brief that this Court “take judicial notice” of the lack of specific findings by the trial court and McKenzie’s
“misconstruction” of the law. In deciding this appeal, this Court has fully considered the record and all relevant law.
To the extent appellants request additional “notice,” appellants cite no authority for their requests, see TEX. R. App.
P. 38.1(i), and such requests are denied.
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the trial court gave no reason for its ruling; (2) falsely represented that the meritorious definses
addressed in appellants’ brief in this Court were first raised on appeal, when the record shows
appellants raised the affirmative defense of improper parties during the hearing on their motion
for new trial and argued all of the defenses in question in their motion to reconsider; and (3)
failed to disclose to this Court “adverse” aspects of two cases cited in McKenzie’s argument
pertaining to the third (.‘raddnck prong.
The only authority cited by appellants as a basis for the generally requested sanctions is
one Texas Disciplinary Rule of Professional Conduct that imposes upon counsel the duty of
candor toward the court. See TEx. DISCIPLINARY R. PROF’L CoNDUCT 3.03(a). reprinted in TEX.
Gov’T CoDE ANN., tit. 2, subtit. G app. A (West 2013) (TEx. STATE BAR R. art. X. § 9). That
rule provides specifically “[a] lawyer shall not knowingly. . . make a false statement of material
fact or law to a tribunal” or “fail to disclose to the tribunal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel.” Id. While this Court has the inherent power to sanction
attorneys who engage in misconduct before our Court, appellants cite no authority, and we know
of none, that empowers a court to impose sanctions based upon alleged violation of the
disciplinary rules in this appeal. See Merrell Dow Pharm, Inc. v. Havner, 953 S.W.2d 706,732
(Ta. 1997) (order on reh’g) (“Courts possess inherent power to discipline an attorney’s
behavior.”); In re Cliv of Lancaster, 228 S.W.3d 437, 441 (Tex. App.—Dallas 2007, no pet.)
(same); see also Greene v. Young, 174 S.W.3d 291, 298 n.3 (Ta. App.—Houston [1st Dist.]
2005, pet. denied) (disciplinary rules do not appear to operate as source of authority for court to
impose sanctions apart from its inherent power to do so); cf Nolte v. Flournqv, 348 S.W.3d 262,
271 (Ta. App.—-Texarkana 2011, pet. denied) (“Generally, before sanctions may be imposed
II
against a party or an attorney, notice of the procedural basis for the potential sanctions must be
given.”).
Even assuming without deciding that appellants’ motion can be construed as a request for
this Court to exercise its inherent power to impose sanctions, we cannot agree with appellants
that the alleged “misrepresentations and fallacious statements” described by appellants warrant
such sanctions. First, appellants complain of two statements in McKenzie’s appellate brief: (I)
“M the trial court ruled, Appellants intentionally or, at the least, by means of theft conscious
indifference failed to file an answet” and (2) ‘7he trial court evaluated the evidence in this case
and made the reasonable determination that there was insufficient evidence to support
Appellants’ argument that they committed a mistake.” Those statements appear in the argument
portion of McKenzie’s brief. However, the “Statement of Facts” in McKenzie’s brief states the
trial court denied appellants’ motion for new trial because it determined appellants “had failed to
satisfy the burden necessary to merit a new trial.” Further, the “Summary of the Argument” in
McKenzie’s brief states that based on the conflicting testimony presented at the hearing, “the
trial court could have easily determined that the Appellants’ fhilure to file an Answer was not the
result of “mistake” but rather more akin to either conscious indifference or intent” and “would
have thus been acting within their discretionary authority to deny Appellants’ Motion for New
Trial on this first Cradclock factor.” (emphasis added). On this record, we cannot conclude
Urquidez made a misrepresentation or false statement respecting the trial court’s ruling. Cf
Mattox v. Grimes Cnty Comm ‘n Court, 305 S.W.3d 375, 386 (Tex. App.—-Houston [14th Dist]
2010, pet denied) (concluding appellants’ motion therein “essentially sought sanctions for their
disagreement with the factual and legal assertions made by appellees, which does not warrant
sanctions”).
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Next. e address appellants’ contention that Urquidez hilselv represented that the
meritorious (letenses addressed in appellants briet in this Court were first raised on appeal.
Even assumine v ithout decidine that such detenses were properly raised in appellants’ motion to
reconsider in the trial court, McKenzie’s brief includes an argument that appellants motion to
reconsider was not timely tiled and the trial court was therefore not obligated to consider that
motion Additionally, appellants’ argument in their appellate brief respecting the delense of
“improper parties cites only appellants’ motion br new trial and the affidavits of Utz and
McKenzie. Mckenzie argues in his appellate brief that appellants’ motion for new trial and the
affidavits cited by them did not properly “set up” any defense. Further, while appellants’ reply
brief in this Court cites testimony and argument from the hearing that appellants contend pertains
to the defense of improper parties, the portions of the record cited by appellants rio not
specifically address whether any party was “proper” or “improper,” but rather address whether
there was evidence that McKenzie worked for all of the defendants. On this record, even
assumin without deciding that the portions of the record cited by appellants can be construed to
raise the defCnse of improper parties, we cannot conclude Urquidez made a false representation
in McKenzie’s appellate brief respecting that defense. See id.
Finally, we address appellants’ argument that Urquidez made a “misleading presentation
of case law.” The argument section of McKenzie’s appellate brief states “in order satisfy [sic]
the third Cruddock prong, delinquent defendants should show the trial court that they are ‘ready,
willing and able to go immediately to trial’ and, furthermore, they should offer to reimburse the
winning plaintiff for expenses he incurred in obtaining a default judgment.” (emphasis added).
Among the cases cited in support of that statement are O’Connell v. O’connell, 843 S.W.2d 212,
220 (Tex. App.— Texarkana 1992, no writ), and C7ifj’v. Huggins, 724 S.W.2d 778, 779 (Tex.
1987). According to appellants, “Urquidez deceptively attempts to use [O’Connelll to have this
Court require Appellants to Show that they were willing, ready, and able to go immediately to
trial in order to satisfy the third prong of the (eeL/dock standard without disclosing to this Court
the rele\ant. mitigating flict that, in [0 ( inel/j. the court was addressing a case involving a
postanswer deliult judgment:’ However, we cannot conclude the argument in McKenzie’s brief
that the law in () ( ‘none/I “should’’ apply in the case before us is a misrepresentation of the law.
See id. Additionally, appellants contend “Urquidez attempts to use (‘li/fl to Support his
argument that Appellants must demonstrate readiness to go to trial and offer to pay Appellee’s
expenses in order to satisfy the third prong of the Crad/oek standard. despite the fact that, in the
portion cited Iiom that case. the Texas Supreme Court ... clearly stated that such ftictors were
not a precondition to the granting of a new trial,” However, we cannot agree with appellants that
by citing (li/f in support of an argument as to what appellants “should do to satisfy the third
Crcu/deck prong. Lrquidez failed to disclose adverse authority.
We deny appellants’ motion for sanctions.
IV. CONCLUSiON
We decide against appellants on their two issues. Further, we deny appellants’ motion
for sanctions. The trial court’s judgment is affirmed.
II 1647F.P05
14
(anti af )ppeals
3FiftlJ District of Qexas at Dallas
JUDGMENT
CHRISTOPHER UTZ; EVANS On Appeal from the 193rd Judicial District
ENVIRONMENTAL CONTRACTING. Court, Dallas County. Texas
LLC: UTZ ENVIRONMENTAL Trial Court Cause No. DC-I 1-08418.
SERVICES OF DALLAS, LLC: AND UTZ Opinion delivered by Justice Lang. Justices
ENVIRONMENTAL SERViCES OF Moseley and Francis participating.
AUSTiN, iNC., Appellants
No. 05-I l-01647-CV V.
DUFFY MCKENZIE, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appcllee Duffy McKenzie recover his costs of this appeal and the
full amount of the trial court’s judgment from appellants Christopher Utz; Evans Environmental
Contracting, LLC; Ut Environmental Services of Dallas, LLC; and Ut Environmental Services
of Austin, Inc., and from the sureties on any supersedeas bond.
Judgment entered this 1st day of March, 2013.