Guaranty County Mutual Insurance Co. v. Reyna

CANTU, Justice,

dissenting.

Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939) holds that a default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

The majority concludes that the granting of a new trial to appellant will work an injury to the appellee because he can no longer pursue his cause of action against Bingham. I cannot agree that such is the type of injury contemplated by Craddock.

In my opinion the injury alluded to by Craddock consists of missing witnesses and failure to offer reimbursement for costs. See Stone Resources, Inc. v. Barnett, 661 S.W.2d 148 (Tex.App. — Houston [1st Dist.] 1983, no writ); Southwestern Speciality Co. v. Brown, 188 S.W.2d 1002 (Tex.Civ.App. — San Antonio 1945, writ ref d w.o.m.). Mere inconvenience or a possible injury is not sufficient. See for example, Kirk v. Farmer’s Aerial Spraying Service, Inc., 496 S.W.2d 739 (Tex.Civ.App. —Amarillo 1973, no writ), wherein the court determined that a loss of priority in filing an abstract of judgment was an insufficient injury to bar a retrial after a default judgment. To these I would add “self-inflicted injuries.”

The instant case reflects a history of poor procedural choices by appellee, some capable of causing confusion to opposing counsel.

The original lawsuit against appellant and Bingham sought a declaratory judgment declaring the rights of the parties upon an insurance policy. No recovery was sought against Bingham. This suit alleged no other cause of action and was dismissed by appellee on March 30, 1984, two days prior to the expiration of a two year statute of limitations.1 No notice was ever given appellant or Bingham of the dismissal. See TEX.R.CIY.P. 162, 21a, 72.

The very same day appellee filed a new lawsuit under a new cause number, this time foregoing his suit for declaratory judgment and alleging only a deceptive trade practices claim.2

Service of citation in this new lawsuit was accomplished by serving appellant through its registered agent in Beaumont by certified mail. See Rules 106, 107.3

Service of citation upon Bingham is not disclosed by the record. However, testimo*329ny at the motion for new trial hearing reveals that at the time the dismissal was taken as to Bingham, Bingham’s appearance day had not yet arrived.

It is clear that appellee could have amended his original pleadings to include a DTPA claim against both appellant and Bingham without the need for filing a new lawsuit. See Rules 62, 63.

Moreover, once the original lawsuit was dismissed and the new one instituted, ap-pellee was under no obligation to dismiss his cause of action against Bingham in order to take a default judgment against appellant. Rule 41 provides that any claim against a party may be severed and proceeded with separately. Thus appellee could have secured its default judgment against appellant without need to dismiss against Bingham.

Inasmuch as appellee elected not to seek a severance, his choice of dismissal, if it has indeed had the effect of barring his claim against Bingham, must be deemed a deliberate one. Any injury flowing from such election, in my opinion, is a self-inflicted one and not such an injury as could have been occasioned by appellant’s failure to answer timely. I would hold that the trial court abused its discretion in not setting aside the default judgment and granting a new trial. I register my dissent to the holding of the majority.

. At the motion for new trial hearing counsel for appellee argued that the cause of action arose on or about April 1, 1982.

. The majority alludes to an addition of a DTPA claim, but in reality the DTPA claim is the only claim made under the new suit.

.All references to the rules are to the Texas Rules of Civil Procedure.