Bruce Hitt v. Frank Zarauskas D/B/A Boondocks Bar & Grill

ACCEPTED
03-16-00076-CV
11220170
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/20/2016 10:19:24 AM
JEFFREY D. KYLE
CLERK
ORAL ARGUMENT REQUESTED
No. 03-16-00076-CV
FILED IN
___________________________________________________________________
3rd COURT OF APPEALS
AUSTIN, TEXAS
In The 6/20/2016 10:19:24 AM
JEFFREY D. KYLE
Clerk
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
Austin, Texas
___________________________________________________________________

BRUCE HITT,

Appellant,

v.

FRANK ZARAUSKAS d/b/a BOONDOCKS BAR & GRILL,

Appellee.
___________________________________________________________________
On Appeal from Cause No. 14C084L
In the County Court at Law of Tom Green County, Texas
Honorable Ben Nolen, Presiding Judge
___________________________________________________________________

BRIEF FOR APPELLEE
_________________________________________________________________

Charles W. King
State Bar Number 11436525
101 S. Park
San Angelo, Texas 76901
Telephone: (325) 227-6536
Facsimile: (325) 227-6537
Attorney for Appellee
 IDENTITY OF PARTIES AND COUNSEL

In order to assist the Court in identifying grounds for recusal or

disqualification, Appellee certifies that the following is a complete list of the

names and addresses of the parties to this appeal and their counsel:

APPELLANT: Bruce Hitt

COUNSEL FOR Michael A. Yanof (appellate counsel)
APPELLANT: Cassie J. Dallas (appellate & trial counsel)
Jason R. Jobe (trial counsel)
Thompson, Coe, Cousins & Irons, L.L.P.
700 North Pearl St., 25th Floor
Dallas, Texas 75201
Telephone: (214) 871-8200
Facsimile: (214) 871-8209

APPELLEE: Frank Zarauskas d/b/a Boondocks Bar & Grill

COUNSEL FOR Charles W. King
APPELLEE: 101 S. Park
San Angelo, Texas 76901
Telephone: (325) 227-6536
Facsimile: (325) 227-6537
Email: charles@charleskinglaw.com

2
 FOR THE COURT’S CONVENIENCE

Bruce Hitt was the Defendant in the trial court and is the Appellant herein.

For convenience he is referred to as “Hitt” or “Appellant.”

Frank Zarauskas d/b/a Boondocks Bar and Grill was the Plaintiff in the trial

court and is the Appellee herein. For convenience, he is referred to as “Zarauskas”

or “Appellee.”

References to the Clerk’s Record and Reporter’s Record are abbreviated as

“CR” and “RR,” respectively. Because the Reporter’s Record is multiple volumes,

the volume number is placed in front of the Reporter’s Record designation, and

the page number is placed after. For example, Volume 4 of the Reporter’s Record

at page 4 would be cited as 4 RR 4.

Appendix items are attached to this Brief and abbreviated as “Apx. Tab

___.”

3
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ………………………………………………………….. 2
FOR THE COURT’S CONVENIENCE……………………………………………………………….. 3
INDEX OF AUTHORITIES……………………………………………………………………………….. 6
STATEMENT OF THE CASE……………………………………………………………………………. 8
STATEMENT REGARDING ORAL ARGUMENT…………………………………………………..9
ISSUE PRESENTED ………………………………………………………………………………………..10
STATEMENT OF FACTS…………………………………………………………………………………. 11
I. Zarauskas’ Lawsuit and the Eviction Proceeding…………………….11
II. Hitt’s Counsel Withdraws Without Hitt’s Knowledge or
Consent…………………………………………………………………………………. 12

III. Hitt Not Served with Discovery or Notice of Hearing on
The Merits …………………………………………………………………………….. 13

SUMMARY OF ARGUMENT…………………………………………………………………………...16
ARGUMENT ………………………………………………………………………………………………….18
I. Standard of Review……………………………………………………………………18
II. The Trial Court Did No Abuse Its Discretion in Denying Hitt’s
Motion for New Trial………………………………………………………………….19

A. Due process requires that defendants receive notice
of a trial setting after appearing in a case; however, a
Defendant has a duty to keep the Court informed of
His change of address……………………………………………………...19

B. If Hitt did not receive notice of the November 10, 2015
Hearing, it is because he failed to comply with Tex. R.
Civil P. 245……………………………………………………………………….21

C. The Notice of Hearing did not comply with Tex.R.Civ.

4
 P. 245…………………………………………………………………………………. ……22

D. The uncontroverted evidence did not establish each of the
Craddock elements ……………………………………………………………….23

1. A post-answer default judgment should be set
Aside and a new trial ordered when the
Craddock elements are established, but that was
not the case here………………………….……………………………………23

2. Hitt’s non-appearance was if not intentional,
the result of conscious indifference…………………………........... 23

3. Hitt did not set up a meritorious defense……………………………24

4. Hitt did not demonstrate that granting a new trial
would not result in prejudice or delay…………………………………24

CONCLUSION……………………………………………………………………………………………25

CERTIFICATE OF SERVICE …………………………………………………………………………25

CERTIFICATE OF COMPLIANCE………………………………………………………………….26

APPENDIX TO BRIEF OF APPELLEE…………………………………………………………….27

Judgment (CR 60-61) Tab 1

Order Denying Defendant Bruce Hitt’s Motion
To Set Aside Post-Answer Default Judgment
And Motion for New Trial (CR 131) Tab 2

Affidavit of Bruce Hitt (CR 78-83) Tab 3

5
 INDEX OF AUTHORITIES

CASES
$429.30 In U.S. Currency v. State,
896 S.W.2d 363
(Tex. App. –Houston [1st Dist.] 1995, no writ)……………………………………19, 22

Cliff v. Huggins,
724 S.W.2d 778, 779 (Tex. 1987) …………………………………................18, 20, 22

Craddock v. Sunshine Bus Lines,
133 S.W.2d 124 (Tex. 1939)……………………………………..…10, 16, 18, 20, 23, 24

Dolgencorp of Tex., Inc. v. Lerma,
288 S.W. 3d 922 (Tex. 2009) (per curiam) ……………………………………..18, 19

Ivy v. Carrell,
407 S.W.2d 212 (Tex. 1966)…………………………………………………………………….23

LBL Oil Co. v. Int’l Power Serv. Inc.,
777 S.W.2d 390 (Tex. 1989)…………………………………………………………………….19

Mathis v. Lockwood,
166 S.W.3d 743 (Tex. 2005) (per curiam)…………………………………….………21,22

Matsushita Elec. Cor. V. McAllen Copy Data, Inc.,
815 S.W.2d 850 (Tex. App. – Corpus Christi 1991, writ denied) ……………….19

Murphree v. Ziegelmair,
937 S.W.2d 850 (Tex.App. –Corus Christi 1991, writ denied)……………………18

Old Republic Ins. Co. v. Scott,
873 S.W.2d 381 (Tex. 1994)…………………………………………………………………..… 18

Smith v. Holmes,
53 S.W.3d 815, 817-18 (Tex. App. – Austin 2001, no pet.) ………..…18, 19, 20

6
Strackbein v. Prewitt,
671 S.W.2d 37,38 (Tex. 1984) ………………………………………………………………….18

STATUTES:

Tex. Civ. Prac. & Rem. Code § 30.015……………………………………………….8,13, 14,18,21

Tex. Civ. Prac. & Rem. Code § 30.015(d)…………………………………………………………8, 12

RULES:

Tex. R. Civ. P. 10……………………………………………………………………………………………12,21

Tex. R. Civ. P. 21a……………………………………………………………………………………..……….20

Tex. R. Civ. P. 245…………………………………………………………………………..4,5,10,16,20,22

7
 STATEMENT OF THE CASE
___________________________________________________________________
Nature of This case arises from the breach of an alleged oral lease
the case agreement. Appellee Zarauskas asserted both tort and
quantum meruit claims against Hitt. (CR 26-35.)
Appellant Hitt answered, asserting various defenses, and
filed a counterclaim for unpaid rent. (CR 23-25.) The
unpaid rent portion of the case was moot at the time of
trial.
___________________________________________________________________
Trial Court Cause No. 14C084-L in the County Court at Law, Tom
Green County, Texas, the Honorable Ben Nolen,
presiding.
___________________________________________________________________
Course of the On October 15, 2015, the trial court issued a Notice of
Proceeding Hearing on the Merits. (CR 59.) Pursuant to the Notice
of Hearing, the case was called to trial on November 10,
2015. (CR 60; Apx. Tab 1.) Appellee’s position is if Hitt
did not receive the Notice of Hearing and did not
appear, it was his own fault. He failed to comply with
Tex. Civ. Prac. Rem. Code 30.015. (CR 78-83; Apx. Tab
3.) The trial court entered post-answer default
judgment in favor of Zarauskas. (CR 60; Apx. 1.) (CR131;
Apx. 2.)

It is true that after learning of the adverse judgment,
Hitt filed a timely motion for new trial. (CR 64-77.)
___________________________________________________________________
Trial Court’s After a hearing, the trial court denied Hitt’s motion for
Disposition new trial because he failed to notify the court of his new
address, if he had one. (CR 131; Apx. 2.)
___________________________________________________________________
Appeal Appellee stipulates that Hitt timely filed a notice of
appeal, but the trial court should decision should be
affirmed (CR 132-34.)
___________________________________________________________________

8
 STATEMENT REGARDNG ORAL ARGUMENT

The trial court’s discretion to grant or deny a motion for new trial is broad.

In the case at bar the lack of notice, if any, was Appellant’s own fault because he

failed to comply with Tex. Civ. Prac. & Rem. Code 30.015(d) and failed to apprise

the court of his whereabouts. The trial court’s decision should be affirmed. There

was no abuse of discretion.

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 ISSUE PRESENTED

1. Trial court did not abuse its discretion in denying Appellant’s motion for

new trial; Appellant’s contention that: (a) Appellant did not receive notice

of the trial setting is his own fault for not keeping the court apprised of his

new address; (b) Hence, whether the notice complied with Rule 245 of the

Texas Rules of Civil Procedure is immaterial. Appellant would not have

gotten it because he did not advise the court that he moved, if he did; and

(c) Appellant’s failure to appear was at least the result of conscious

indifference; (d) Appellant may have alleged a meritorious defense; and/or

alleged (e) that granting a new trial would not operate to cause delay or

injury to the Plaintiff-Appellee; but he did not comply with all Craddock

elements.

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 STATEMENT OF FACTS

I. Zarauskas’s Lawsuit and the Eviction Proceeding

Appellee agrees with Appellant that Zarauskas filed his Original

Petition on March 6, 2014. (CR 7-9.) It was pled as a fraud and negligent

misrepresentation case, and in addition the lawsuit arose from the alleged

breach of a lease agreement entered in early 2013 between Zarauskas and

Hitt. (CR 26-35.) Hitt generally denied Zarauskas’s claims, asserted the

affirmative defense of the statute of frauds, and counterclaimed for unpaid

rent. (CR 23-25.) The unpaid rent issue was moot at the time of trial since

Appellee paid rent and that part of said case was resolved.

Both Zarauskas and Hitt acknowledged that an agreement was

entered, the terms of the agreement and their rights and obligations as landlord

and tenant were disputed. (CR 23-25, 26-35; see generally 2 RR 6-49.) It is true

that Hitt sued Zarauskas for forcible detainer around the time of the filing of the

Original Petition. (CR 33, 36, 40; 2 RR 36.) And, as set forth in Plaintiff’s First

Amended Petition, the judgment of possession entered by the Justice of the

Peace Court for Tom Green County, Precinct Number 2 was appealed to the

County Court and consolidated by the parties’ agreement into this cause number.

CR 33, 36, 40.)

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 Specifically, by order dated June 3, 2014, the trial court ordered that the

funds placed in the court’s registry for the eviction proceeding be transferred into

this cause number. (CR 40.) Three weeks later, the trial court administratively

closed the proceedings but did not dismiss the case. (CR 41.) Hitt did not notify

the Court that he moved to San Antonio, if he did. (CR 79; Apx. Tab 3.) He

violated Tex. Prac. & Rem. Code 30.015(d).

II. Hitt’s Counsel Withdrew, But He Notified Hitt of His Motion. Hitt Did Not
Keep His Own Attorney or the Court Informed of His Whereabouts.

In February 2015, Hitt’s attorney of record, Jeffery Lisson (“Lisson”) filed a

motion to withdraw, citing an inability to communicate with his client as the

grounds for the motion. (CR 47-48, 79; Apx. Tab 3.) Lisson’s motion did contain a

certificate of service (CR 47-48.); and the motion was sent to Hitt’s last known

address. (CR 47.) See Tex. R. Civ. P. 10.

As reflected in the certificate of service attached to the motion, Lisson

apparently attempted to serve Hitt as his mother’s house, located at 1226

Coventry Lane, San Angelo, Texas 76904 (“Coventry Address”), the address

provided to him by Hitt. (CR 47-48, 79; Apx. Tab 3.) Hitt claims he never received

a copy of the motion. (CR 78-80; Apx. Tab 3.)

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 The trial court issued a notice of hearing on the motion to withdraw,

service of which was attempted on Hitt’s residence located at 4730 Muirfield Ave,

San Angelo, Texas 76901 (“Muirfield Address”). (CR 49.) The Register of Actions

reflects that the notice was returned. (CR 82; Apx. Tab 3.) The Court granted

Lisson’s motion to withdraw on March 13, 2015. (CR 50.) Hitt blames his prior

counsel, the court and Appellee’s counsel for the fact that he allegedly was not

getting notice. However, Appellee contends he should have stayed in

communication with his attorney and the court. A court should not have to hunt

the litigants down. That is why Tex. Civ. Prac. & Rem. 30.015 makes sense.

III. Hitt Contends He Was Not Served with Discovery or Notice of Hearing on
the Merits.

On July 23, 2015, Zarauskas electronically filed Requests for Admissions (CR

51-58). The certificate of service attached to these requests indicates that they

were sent by certified mail, return receipt requested and regular mail to the

Muirfield Address. (CR 52.) If Hitt did not reside or accept mail at the Muirfield

Address at the time Zarauskas purported to serve him with the requests, he

should have notified the court and the litigants of his new address. (CR 80; Apx.

Tab 3.) Tex. Civ. Prac. & Rem. Code 30.015.

13
 On October 15, 2015, the Court issued a Notice of Hearing on the Merits

(“Notice of Hearing”), setting the case for trial on November 10, 2015, at 9:00

a.m. (CR 59.) Service of the Notice of Hearing was attempted on Hitt at the

Muirfield Address. (CR 59, 79-83; Apx. Tab 3.) Appellee contends if Notice of

Hearing was not received by Hitt, then it was his fault not the court’s. (CR 80, 83;

Apx. Tab 3.) Tex. Civ. Prac. & Rem. Code 30.015.

Appellee agrees with Appellant that Zarauskas appeared at trial on

November 10, 2015, and Hitt did not appear. (3 RR 1-15.) Hitt’s liability was

established on the basis of the deemed admissions. Appellee presented evidence

that the request for admissions was sent to Hitt’s last known address. (3 RR 5-6.)

After admitting Zarauskas’s exhibits, which included the deemed admissions, and

hearing testimony from Zarauskas, the trial court entered a judgment against

Hitt, awarding Zarauskas $150,000 in damages and entering a take-nothing

judgment on Hitt’s counterclaim. (CR 60-61; Apx. Tab 1; 3 RR 13-14.)

Hitt contends that he learned of the post-answer default judgment on or

about November 14, 2015, from friends, and timely filed a motion for new trial

seeking to set aside the default judgment. (CR 64-77, 80; Apx. Tab 3.) After a

hearing, the trial court denied Hitt’s motion for new trial. (CR 131; Apx. Tab 2.)

14
The trial court’s ruling was correct. Mr. Hitt did not keep the court or the litigants

apprised of his new address, if any. Hitt filed this appeal. (CR 132-34.)

15
 SUMMARY OF ARGUMENT

Appellee agrees with Appellant that once a party has appeared in a lawsuit,

due process requires that he receive notice of a trial setting before a default

judgment may be entered against him and that notice should comply with Rule

245 of the Texas Rules of Civil Procedure. However, the litigants also have a duty

to notify the court of change of address. Therein lies the problem. And, of

course, equitable principles warrant the granting of a new trial only when a party

establishes each and all of the elements stated in Craddock v. Sunshine Bus Lines,

Inc.

In this case, Bruce Hitt appeared, answered, and asserted counterclaims

through his then-attorney. Subsequently, Hitt’s attorney withdrew. If Hitt

stopped receiving notice of the filings and settings in the proceeding, it was his

own fault. If Hitt did not receive notice of the November 10, 2015 hearing on the

merits at which the trial court entered judgment against him, that was his own

fault. The Court has no duty to track down the litigants. A court’s duty to send

notice to litigants is predicated on the litigants keeping the court advised of their

whereabouts.

16
 After learning of the judgment, it is true that Hitt timely filed a motion for

new trial and that the trial court denied Hitt’s motion. The trial court did not

abuse its discretion. This Court should affirm the judgment.

17
 ARGUMENT

I. Standard of Review

A trial court’s decision on a motion for new trial is reviewed for abuse of

discretion. Appellee agrees with the law cited by Appellant generally, but not as

applied to the case at bar. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987)

(citing Strackbein v. Prewitt, 671 S.W. 2d 37, 38 (Tex. 1984)); see also Smith v.

Holmes, 53 S.W. 3d 815, 817 (Tex. App. – Austin 2001, no pet.) The trial court’s

discretion is not unbridled. Cliff, 724 S.W.2d at 779. That said, the litigants are

required to notify the court of change of address. The court has no duty to track

down the litigants. There is a reason for Rules like Tex. Prac. & Rem. Code 30.015,

and that reason is so that the parties will do their part to inform the court of their

address if they want to receive notice of settings.

If a defaulted party moves for a new trial, he must comply with all three

elements of the Craddock test, . . . a trial court does not abuse its discretion if it

fails to grant a new trial when the defendant was consciously indifferent. In the

case at bar, Appellee contends Appellant was consciously indifferent to the

proceedings and at fault in not providing a change of address. Dolgencorp of

Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam) (citing Old

Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994)).

18
II. The Trial Court Did Not Abuse Its Discretion in Denying Hitt’s Motion for
New Trial

In Hitt’s motion for new trial, he contended he did not receive notice of the

trial setting (CR 78-83; Apx. Tab 3; 4 RR 1-28.); but ad nauseam that was because

he failed to keep the court apprised of his address. The trial court properly

denied Hitt’s motion for new trial. (CR 131.) In doing so, the trial court did not

abuse its discretion.

A. While due process requires that defendants receive notice of any
trial setting after appearing in a case, litigants are required to keep
the court apprised of their change of address.

Appellee agrees with Appellant that once a defendant has made an

appearance in a case, he must receive notice a trial setting as a matter of due

process under the Fourteenth Amendment. Smith, 53 S.W.3d at 817; see also

Murphree v. Ziegelmair, 937 S.W.2d 493, 495 (Tex. App. – Houston [1st Dist.]

1995, no writ (citing LBL Oil Co. v. Int’l Power Serv. Inc., 777 S.W.2d 390, 390-91

(Tex. 1989)). “A post-answer default judgment occurs when a defendant who has

answered fails to appear for trial.” Dolgencorp, 288 S.W.3d at 925. Appellant

correctly states that for a post-answer default judgment to be valid, it must be

shown that the defendants received notice of the hearings. $429.30 In U.S.

Currency v. State, 896 S.W.2d 363, 366 (Tex. App. – Houston [1st Dist.] 1995, no

19
writ); Matsushita Elec. Cor. V. McAllen Copy Data, Inc. , 815 S.W.2d 850, 853 (Tex.

App. – Corpus Christi 1991, writ denied); see also Tex. R. Civ. P. 21a & 245. “A

defendant who does not receive notice of a post-answer default-judgment

proceeding is deprived of due process.” Smith, 53 S.W.3d at 817-18. That is all

true, but that is why it is important to follow all court rules and advise the court of

a change of one’s address. Appellee contends Appellant answered and counter-

claimed and then just ignored the proceedings. The totality of the circumstances

indicate conscious indifference: not communicating with his lawyer, moving, not

telling anyone his new address.

“Rule 21a sets up a presumption that when notice of trial setting properly

addressed and postage prepaid is mailed, that the notice was duly received by the

addressee,” the presumption may be overcome. Cliff, 724 S.W.2d at 779; see also

Tex. R. Civ. P. 21a (“A certificate by a party or an attorney of record, or the return

of an officer, or the affidavit of any person showing service of a notice shall be

prima facie evidence of the fact of service.”). Common sense dictates that a party

claiming a notice problem should have informed the court of his or her change of

address. Hitt cannot satisfy Craddock. Appellee contends Appellant was

consciously indifferent in just disappearing. Appellee contends Hitt should have

changed his address with the court and communicated with his attorney. .

20
 B. The uncontroverted evidence established that if Hitt did not receive
notice of the November 10, 2015 hearing, it was his own
conduct that caused him not to be notified.

The notice was properly sent to Mr. Hitt’s last known address Hitt at the

Muirfield Address. (CR 59, 80, 84; Apx. Tab 3.) If Hitt did not reside at or receive

mail at the Muirfield Address any more, then why did he not notify the court of

his change of address? (CR 78-80; Apx. Tab 3.)

Zarauskas’s counsel correctly argued that Hitt had waived the right to

notice because he did not provide an updated address to the trial court. (4 RR 5-

7.) Hitt had a duty to apprise the trial court of his correct and current address.

Tex. Civ. Prac. & Rem. Code 30.015. Appellant cites Mathis, 166 S.W.3d at 746

insisting that new trial should have been granted where any failure to apprise the

court of defaulting party’s last known address resulted from a mistake or

accident. However, Hitt just did not comply with the Rule to notify the court of

change of address. There was no mistake. Hitt did not do his part.

Hitt contends that (1) he was unaware that his attorney had withdrawn; (2)

he did not consent to the withdrawal; and (3) somehow his attorney (a very

reputable one) failed to provide the trial court with Hitt’s correct and current

address in accordance with Rule 10 of the Texas Rules of Civil Procedure. (CR 47-

50, 79-81; Apx. Tab 3.) See Tex. R. Civ. P. 10. Following Hitt’s logic, everyone is at

21
fault but Mr. Hitt. Mr. Hitt knew he was not communicating with his own

attorney. He just disappeared to another city, if he moved at all, and did not

inform anyone of his new address.

Based on the evidence presented, there is a presumption that the Notice

of Hearing was properly sent or received. See Mathis, 166 S.W.3d at 745; see also

Cliff, 724 S.W.2d at 780. A post-answer default judgment is valid if the

defendant received notice of a trial setting—and Hitt did at his last known

address. He should have told the court his new address. The trial court did not

abuse its discretion in failing to grant Hitt’s motion for new trial. See $429.30 in

U.S. Currency, 896 S.W.2d at 365.

C. Even if the Notice of Hearing did not comply with Tex. R. Civ. P.
245, it would not have made a difference since Mr. Hitt did not
apprise the court of his new address.

The Notice of Hearing if it failed to comply with Rule 245 of the Texas Rule

of Civil Procedure, which requires that parties in a contested case be given no less

than 45 days’ notice of the first trial setting, is not a causative factor unless the

court has a good address. Hitt did not give the court his new address; so he

cannot really complain that he did not get the full benefit of Tex. R. Civ. P. 245.

In this case Rule 245 in a contested case cannot help someone who does

not notify the court of his change of address. Appellee submits that appellant

22
cannot pick and choose what rules to comply with. If he wanted the benefit of

notices, then he had to notify the court of his new address, if any.

D. Appellant did not meet the Craddock elements.

As Appellee has said, ad nauseam throughout this brief, if Hitt did not

receive notice of the hearing, it is his own doing. He consciously or recklessly

failed to notify the court of his new address. The trial court did not abuse its

discretion by not granting Hitt’s motion for new trial.

1. The post-answer default judgment should not be set aside.
The Craddock elements were not established

In Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939), the Texas

Supreme Court held that a default judgment should be set aside when the

defaulting party establishes that: (1) its failure to answer or appear was not

intentional or the result of conscious indifference; (2) that it has a meritorious

defense; and (3) that the granting of a new trial will not operate to cause delay or

injury to the plaintiff. Craddock, 133 S.W.2d at 126; see also Ivy v. Carrell, 407

S.W.2d 212, 213 (Tex. 1966) (holding that Craddock rule applies equally to post-

answer default judgments). Appellant has to establish all three elements of

Craddock.

2. Hitt’s non-appearance was intentional or the result
of conscious indifference

23
 Hitt should have kept the court apprised of his address. Appellee contends

Hitt basically disappeared, did not communicate with his attorney and did not

notify anyone of his new address, if any.

3. Hitt did not set up a meritorious defense

Even if Hitt demonstrated the existence of a meritorious defense, he did

not comply with the first element of Craddock.

4. Hitt did not demonstrate that granting a new trial would not
result in prejudice or delay, nor did Hitt reimburse Appellee
for expenses.

Hitt did not satisfy the first element of Craddock. As to the third element,

he simply alleged that granting the motion for new trial would not cause a delay

or otherwise prejudice Zarauskas. Hitt took no responsibility for his own failure to

notify the court of his change of address. He blames everyone but himself.

Because Hitt did not establish each and all of the Craddock elements, his

attempt to attack the trial court’s decision must fail. The trial court did not abuse

its discretion. The decision of the trial court should be affirmed.

24
 CONCLUSION

Appellee Frank Zarauskas prays that the Court:

1) affirm the trial court’s judgment; and

2) award any other relief to which Appellee Frank Zarauskas is entitled.

Respectfully submitted,

By/s/Charles W. King
Charles W. King
101 S. Park
San Angelo, Texas 76901
Telephone: (325) 227-6536
Facsimile: (325) 227-6537
Email: charles@charleskinglaw.com
ATTORNEY FOR APPELLEE
FRANK ZARAUSKAS

CERTIFICATE OF SERVICE

I hereby certify that on June 16, 2016, a true and correct copy of the
foregoing document was served by electronic service to counsel of record.

Michael A. Yanof (appellate counsel)
Cassie J. Dallas (appellate & trial counsel)
Jason R. Jobe (trial counsel)
Thompson, Coe, Cousins & Irons, L.L.P.
700 North Pearl St., 25th Floor
Dallas, Texas 75201
Telephone: (214) 871-8200
Facsimile: (214) 871-8209
Attorneys for Appellant
/S/Charles W. King
Charles W. King
Attorney for Appellee

25
 CERTIFICATE OF COMPLIANCE

I certify that this Brief contains 4,307 words, not including the parts
excluded by Tex. R. App. P. 9.4(i)(1). Accordingly, it complies with Rule
9.4(i)(2)(B).

/s/ Charles W. King
Charles W. King

26
 APPENDIX TO BRIEF OF APPELLEE

Judgment (CR 60-61) Tab 1

Order Denying Defendant Bruce Hitt’s Motion
To Set Aside Post-Answer Default Judgment
And Motion for New Trial (CR 131) Tab 2

Affidavit of Bruce Hitt (CR 78-83) Tab 3

27
 NO. 14C084l

FRANK ZARAUSKAS D/B/A § IN THE COUNTY COURT AT lAW
BOONDOCICS BAR & GRIU §
Plaintiff §
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vs. § OF
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BRUCEHm §
Defendant § r::J

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. ~
) ,.._,
On this~ day of November, 2015, the above case was called to trial on the merits; the-
Plaintiff appeared in person/by his attorney, Charles W. King. The Defendant although having
been duly notified failed to appear and made default.

The Court next took Judicial Notice of the Pleadings and other papers on file in this
cause; the Court also finds that Requests for Admissions were propounded to the Defendant on
or about July 23, 2015 and answers were due in 30 days. The Court further finds that the
Defendant did not answer the Requests for Admissions and that the Requests for Admissions
are deemed admitted so the Defendant is liable to the Plaintiff for the allegations in Plaintiffs
First Amended Original Petition and liable to the Plaintiff for damages.

The Court further finds that the Plaintiff should have Judgment against Defendant for
the sum of$/ r u_o tl(). uo .
7
IT IS THEREFORE ORDEREfl. ADJUDGED AND DECREED that Plaintiff have judgment
against Defendant for the sum of / rcJ oou. JJiJ together with post Judgment interest at the
maximum lawful rate from the date of judgment until paid and costs of court, for which let
execution issue if not timely paid.

IT IS FURTHER ORDERED that Defendant and Counter Plaintiff take nothing against
Plaintiff and Counter Defendant by way of any Counterdaims, if any, that remain pending in
this cause or the companion landlord tenant case.

Signed this L!!.._day of November, 2015.

~~- Judge Presiding

TAB 1 60
Approved:

Charles W. King
TBN.11436525
Attorney for Plaintiff/Counter Defendant,
Frank Zarauskas d/b/a Boondocks Bar & Grill

TAB 1 61
 CAUSE NO. l4C084L

FRANKZARAUSKAS D/B/A § IN THE COUNTY COURT AT LAW
BOONDOCKS BAR & GRILL §
Plaintiff, §
§
v. §
§
BRUCEHITT §
Defendant. §

"Gitl~~
ORDER OS QIITRIG DEFENDANT BRUCE HITT'S
MOTION TO SET ASIDE POST-ANSWER DEFAULT JUDGMENT
AND MOTION FOR NEW TRIAL

On the 21st day of January, 2016, the Court considered Defendant Bruce Hitt' s Motion to

Set Aside Post-Answer Default Judgment and Motion for New Trial seeking to set aside the

Judgment entered in this cause on November 10, 201 5. Having considered Defendant's motion,
€-
any response by Plaintiff, and the arguments of counsel, the Court finds that the motion is well
IJ£11/J:G_~
~- awhould be Qe\iffE(). ~
It is therefore, ORDERED, ADJUDGED, AND DECREED that Defendant Bruce Hitt's
0~N.C~4'A>
Motion to Set Aside Post-Answer Default Judgment and Motion for New Trial is 6£1\if'WJII. • ~

~T:A1 Cemt fwtiM oreers a ttew trial in dre httetest ofjustlee mid Ul'ltMss. e_

SIGNED this~ day of January, 2016.

JUDGE PRESIDING

ORDER 8" +I ili'L DEFENDANT BRUCE HITT'S MOTION TO PAGEl
SET ASIDE POST·ANSWER DEFAULT JUDGMENT AND MOTION FOR NEW TRIAL
2353356vl
11131.002
TAB 2 131
 Filed for Record
12/9/2015 11 :33:37 AM
Elizabeth McGill , County Clerk
Tom Green County, Texas
14C084-L
CAUSE NO. l4C048L ~:;~~w~~k~~n
Deputy
FRANK ZARAUSKAS D/ B/A § IN THE COUNTY COURT AT LAW
BOONDOCKS BAR & GRILL §
Plaintiff, §
§
v. §
§
BRUCE HITT §
Defendant. § TOM GREEN COUNTY, TEXAS

AFFIDAVIT OF BRUCE HITT

STATEOFTEXAS §
§
COUNTY OF TOM GREEN §

BEFORE ME on this day personally appeared Bruce Hitt, who, upon his oath, deposed
and stated:

l. "My name is Bruce Hitt. I am over 18 years of age, have never been convicted of
a felony or a misdemeanor involving moral turpitude, and am fully competent to testify to
the matters and facts stated in this Affidavit. All the facts set forth in this Affidavit are
within my personal knowledge and are true and correct.

2. I am a Licensed Real Estate Broker in the State of Texas. I am also in the business
of buying, improving, and selling real estate for investment purposes.

3. Because of the nature of my business, my residence changes frequently. I
typically live at the same physical location for relatively short periods of time between
approximately 12 to 36 months. As a result, I consistently maintain the same Post Office
Box address to receive mail ("P.O. Box Address") .

4. I am the former owner of the residential property located at 4730 Muirfield
Avenue, San Angelo, Texas 7690 I ("Muirfield Address"). I purchased the property
in 20 I 2 as an investment and lived at the property while it was being remodeled. I moved
from that address and sold the property in late January 2015.

5. While I was living at the Muirfield Address, I never set up a mail box at that
address, and I did not use the property as my mailing address. In any event, I have not
lived at the Muirfield Address since late January 201 5.

TAB 3 78
6. My mother is the current owner and resident of the residential property located at
1226 Coventry Lane, San Angelo, Texas 76904 (" Coventry Address"). I do not reside at
this address, but 1 have on occasion received mail at the Coventry Address. The Coventry
Address also appears on my driver' s license.

7. At all relevant times, I have maintained .as my mailing address and regularly
checked the "P.O. Box Address."

8. I am the Defendant in the above referenced lawsuit, styled Frank Zarauskas d/b/a
Boondocks Bar & Grill v. Bruce Hitt, No. 14C048L; in the Country Court at Law, Tom
Green County, Texas (the " Lawsuit" ). As a result I am familiar with the underlying fact s
of the case.

9. I am the former owner of a commercial property located at 3314 F.D. Road. San
Angelo, Texas 76904 (" Restaurant Property"), which was operated for approximately one
year by Zarauskas as Boondocks Bar & Grill.

I 0. On or about March 6, 2014, Frank Zarauskas ("Zarauskas") filed the Lawsuit
against me related to an alleged oral lease agreement regarding the Restaurant Property.

11. On April 8, 2014, I, by and through my then counsel of record Jeffrey Lisson
("Lisson"), answered the Lawsuit. 1 generally denied each and every allegation in
Zarauskas 's Petition, asserted the affirmative defense of the Statute of Frauds, and
counterclaimed for unpaid rent on the Restaurant Property.

12. Although the terms of the alleged oral lease agreement are disputed, 1t 1s not
disputed that Zarauskas failed to pay rent as it came due. As of April 8, 2014, Zarauskas
had not paid rent since September 2013. The failure to pay was a material breach of the
lease agreement and relieved me of any of any obligation to perform under the alleged
oral lease agreement.

13. The Lawsuit was administratively closed on June 24, 2014 . After that time, I
believed that Zarauskas intended to abandon his claims related to the Restaurant Property
in the Lawsuit.

14. Following the administrative closing of the Lawsuit, I moved in approximately
late June or early July 2014 to San Antonio, Texas. During this time, I continued to
maintain and regularly check my Post Office Box address as my mailing address.

15 . Unbeknownst to me, the Lawsuit was re-opened.

16. Unbeknownst to me, and without my consent, Lisson filed a motion to withdraw
as my attorney, citing an inability to communicate with me. Lisson apparently attempted
to serve his motion to withdraw on me at the Coventry Address. I do not recall or have a
record of having received any telephone calls from Lisson.

TAB 3 79
 17. As reflected in the Court' s Rcg1ster of Actions, the notice of hearing on the
motion to withdraw, which was apparently sent to the Muirfield Address, was returned.'

18. As further reflected in the Court 's Register of Actions, Zarauskas electronically
filed Requests for Admissions on July 23 , 2015 . The Certificate of Service attached to
these Requests states that it was apparently sent to the Muirfield Address by Certified
Mail, Return Receipt Requested and Regular U.S. Mail.

19. 1 did not reside or accept mail at the Muirfie1d Address at the time Zarauskas
purported to serve me with the Request for Admissions. 1 never received service of the
Request for Admissions.

20. As further reflected in the Court 's Register of Actions, on October 16, 2015, the
Court issued a Notice of Hearing to be held on November I 0, 2015 . The Notice of
Hearing reflects that it was purportedly served on me at the Muirfield Address.

21 . I did not reside or accept mail at the Muirfie1d Address at the time the Notice of
Hearing was purportedly served.

22 . Further, the Register of Actions reflects that the Notice of Hearing was returned
as undeliverable.

23. I never received service of the Notice of Hearing and did not learn about the
hearing or the November 10, 2015 Judgment until on or about November 14,2015, when
several friends told me that a judgment had been entered against me.

24. My failure to attend the November 10, 2015 Hearing was not intentional and not
the result of conscious indifference. Rather I did not appear at the hearing because I never
received the Notice of Hearing.

25 . The motion for new trial filed on my behalf is not being sought for the purposes
of delay. To my knowledge, Zarauskas will not be prejudiced by the granting of a new
trial.

FURTHER, AFFIANT SAYETH NAUGHT."

1
A true a nd correct copy of the Register of Actions is attached as Exhibi t A- 1.

TAB 3 80
 //
/
DATED this_ day of December, 201y
l BRUCEHITI

SUBSCRIBED AND SWORN TO BEFORE ME this ~day of December, 201 .

.,,•'$-t't:(:•,,
§"R-W::?'=
CH.AUNTEl D. RUBALCABA
Notary Put>Uc. Slate of Texas
~c~~l{a~
~ ..\~/.. '§
"'>~it-.;;'i~.f
'''"'"''"\
Wr( Commission Expires
June Ol, 2017
Cjw rA n];s; I D ~a Ic o.JJo.__
Printed Name o Notary

AFFIDAVIT OF BRUCE HITI PAGE4
2327770vl
11131.002

TAB 3 81
 Page I of2

REGISTER OF ACTIONS
CAsE :-