Christopher Utz, Utz Environmental Services v. McKenzie, Duffy

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

2
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.

5
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
7
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’

8
 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.

10
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”).

12
 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.