concurring.
I concur in the judgment of the Court. I agree with the Court that the executors have met the second and third prongs of the Craddock test by setting up a meritorious defense and demonstrating that setting aside the default judgment would not delay or prejudice McMurrey. I also agree that once McMurrey offered an affidavit controverting the executors’ affidavits asserting that their failure to answer was not intentional nor the result of conscious indifference, an evidentiary hearing must be held to resolve the fact issues.
However, I write separately because I disagree with the Court’s statements regarding the intent or conscious indifference of the executors or the estate’s attorneys. The Court states that under the facts, the failure of the estate’s attorneys to answer could not have been intentional or the result of conscious indifference. 858 S.W.2d at 391. The attorneys were aware that a lawsuit was to be filed. The executors’ failure to notify the attorneys that they had been served is precisely the type of fact question to be resolved at the eviden-tiary hearing.
I also disagree with the Court’s statement that lack of actual notice of the pending litigation would conclusively establish the executors’ lack of intent or conscious indifference. 858 S.W.2d at 391. Actual notice of the suit is not a requirement of McMurrey’s controverting proof. Intent or conscious indifference can be failure to pick up mail when notified or failure to simply pay attention to mail that is delivered to one’s home. Service of process has been shown in this case. Therefore, the fact question to be resolved is whether, in the face of an affidavit asserting lack of actual notice, the executors’ lack of actual notice and resulting failure to answer was due to their intentional act or their conscious indifference.
Por the above reasons, I concur in the judgment of the Court.
CORNYN, J., joins in this concurring opinion.