Estate of Pollack v. McMurrey

*396DOGGETT, Justice,

dissenting.

The court today amends the Texas long-arm statute, permitting service of process through the Secretary of State on an out-of-state defendant. Tex.Civ.Prac. & Rem. Code §§ 17.044-.045. When, as here, there has been full compliance with statutory service requirements, an unsubstantiated claim of lack of service should not overturn a default judgment. I dissent.

The critical facts of this case are uncon-tradicted. After Sheldon Pollack, the defendant in a Texas suit brought by Loraine McMurrey, died, she served through the Secretary of State a writ of scire facias on the two executors of the estate. The writ served at the home of Eileen Erickson was signed for and receipt returned to the Secretary of State. Despite three notices to John Pollack at his home address, he failed to claim the registered service from the Secretary of State. The writ was returned marked “unclaimed.” After neither answered or appeared, the trial court rendered a default judgment.

To set aside the default judgment, the Estate must, by affidavits accompanying its motion for new trial, “set forth facts which, if true, would negate [an] intentional or consciously indifferent” failure to answer. Strackbein v. Prewitt, 671 S.W.2d 37 (Tex.1984). Not just any affidavit and motion will suffice; only if they meet this standard and are controverted is a hearing necessary. Id. General or conclusory allegations are not sufficient to negate intent or conscious indifference. See, e.g., Nichols v. TMJ, Inc., 742 S.W.2d 828 (Tex.App.—Dallas 1987, no writ); Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex.App.—Fort Worth 1982, writ ref’d n.r.e.); Motiograph, Inc. v. Matthews, 555 S.W.2d 196, 197 (Tex.Civ.App.—Dallas 1977, writ ref'd n.r.e.).

Here the affidavits submitted by the Estate were those of Erickson and Pollack, who state, in conclusory fashion, that the failure to answer “was not intentional or the result of conscious indifference.” Both also generally aver that the two executors were “never notified” and were “totally unaware” of the litigation. The addresses given for each correspond to those employed by the Secretary of State for service of process. No explanation is offered as to who in Erikson’s household signed for receipt of service, why that recipient failed to provide it to her, nor why Pollack failed to respond to three notices of certified mail. The simple claim of no actual notice does not, in and of itself, negate conscious indifference.1 These vague affidavits clearly fail to meet the requirements of Strack-bein.

There is no question but that service was properly obtained under our Texas long-arm statute, Tex.Civ.Prac. & Rem.Code §§ 17.044-.045. See, e.g., BLS Limousine Serv. v. Buslease, Inc., 680 S.W.2d 543 (Tex.App.—Dallas 1984, writ ref’d n.r.e.). This court does not permit the fact of service to be contradicted solely on the word of the party shown in the record to have been properly served. See Ward v. Nava, 488 S.W.2d 736 (Tex.1972) (“the testimony of the moving party alone, without corroborating facts or circumstances, is not sufficient to overcome” receipt of service); see also Martin v. Ventura, 493 S.W.2d 336, 338 (Tex.Civ.App.—Tyler 1973, no writ). I agree with the court of appeals that, at a minimum, the affidavits must contain some explanation of the circumstances leading to Erikson’s failure to receive the service, shown to have been delivered and received at her residence, that would negate conscious indifference. Because the estate has failed to meet its burden, I would affirm.

Overlooking the many defects in the Estate’s affidavits, it seems to me the court goes to unnecessary trouble to reverse this judgment. The case is then strangely remanded to the trial court to provide the party prevailing there and in the court of appeals the opportunity for more complete *397discovery and a hearing. Yet none of that is necessary either. As the court explains in footnote two, the Estate should have argued that it was not required to file a separate answer because, under Texas law, the decedent’s answer enures to its benefit. Failing timely to make this argument, the Estate waived it in the trial court, in the court of appeals and in this court. Remand appears designed more to provide the Estate another opportunity to raise this new objection to the judgment, obviating the need for any hearing, rather than to allow McMurrey further discovery and a hearing.

The standard for reviewing default judgments set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), has been eroded dramatically in recent years. See, e.g., Bank One v. Moody, 830 S.W.2d 81 (Tex.1992) (Gonzalez, J., dissenting). Rather than requiring a valid excuse, the court now accepts almost any.

. The court erroneously relies on Cliff v. Huggins, 724 S.W.2d 778 (Tex.1987), for the proposition that nothing more is required in the affidavit than a statement that the movant never received notice. Huggins involved notice of a trial setting, not service of process, and, unlike here, no receipt was shown in the record.