Averitt v. Bruton Paint & Floor Co.

OVARD, Justice.

Appellant, Don R. Averitt, appeals from a denial of a motion for new trial, and seeks to set aside a default judgment. This suit arose when Averitt allegedly bought goods on credit from appellee, Bru-ton Paint & Floor Company (Bruton) and then did not pay for the items. Bruton filed suit on a sworn account against Aver-itt for the price of the goods.

Averitt contends that the trial court abused its discretion in denying his motion for new trial because there was uncontro-verted evidence that he had not received notice of the hearing on the motion to compel discovery. We agree. Because this point is dispositive of the appeal, we need not address Averitt’s other point. We set aside the default judgment and remand this case for a rehearing on the motion to compel.

During the pendency of the case in the trial court, Averitt obtained three different attorneys. After his first two attorneys withdrew from the case, Averitt was served with Bruton’s second set of interrogatories. When Averitt failed to timely respond, Bruton filed a motion to compel answers and for sanctions. Bruton sent Averitt notice of the hearing on the motion by certified mail, return receipt requested. Averitt later confirmed that the notice was sent to the address that he had previously provided pursuant to discovery. Neither Averitt nor his attorney appeared at the hearing and the trial court granted Bru-ton’s motion to compel. The court also struck Averitt’s pleadings in response to Bruton’s request for sanctions, and then entered a default judgment against Averitt.

Averitt concedes that notice of the hearing on the motion to compel was sent by certified mail and that the notice was delivered to an address which he provided to Bruton. However, Averitt filed a verified motion for new trial, averring that his father received the notice and did not give the notice to him until after the hearing. When the court heard arguments on the motion for new trial, Bruton did not ask for an evidentiary hearing or otherwise attempt to controvert Averitt’s sworn denial of receipt of notice.

The Texas Supreme Court has set forth the guiding principles which trial courts are to follow in determining whether to grant a motion for new trial:

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 indiffer*576ence on his part, but was due to a mistake or an accident; provided the motion for a 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.

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388,133 S.W.2d 124, 126 (Comm’n App.1939, opinion adopted). See Cliff v. Huggins, 724 S.W.2d 778 (Tex.1987). The Craddock test also applies to a motion for new trial where, as a sanction, the trial court struck a defendant’s answer and entered a default judgment. Equinox Enter, v. Associated Media, Inc., 730 S.W.2d 872, 874 (Tex.App.—Dallas 1987, no writ).

Averitt’s motion for new trial sets up a meritorious defense to the underlying suit which meets the requirements of Craddock. Averitt alleged that he had never ordered goods in his individual capacity; that if any goods were sold, they were purchased by an entity which has now filed for bankruptcy.1 Additionally, Averitt alleged that granting the motion for new trial would not cause delay or otherwise prejudice Bruton. The record does not reflect evidence to the contrary. This allegation also supports the requirements of Craddock. See Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987); Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex.1984). On a motion for new trial, the trial court is bound to accept as true the affidavits of the movant, unless the opponent requests an evidentiary hearing. See Healy v. Wick Bldg. Systems, Inc., 560 S.W.2d 713, 721 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.) (op. on reh’g); see also Dallas Heating Co., Inc. v. Pardee, 561 S.W.2d 16, 19-20 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.). In this case, Bruton did not request an evidentiary hearing in response to the verified motion for new trial. Thus, Averitt’s verified motion must be accepted as true. Healy, 560 S.W.2d at 721.

The sole remaining issue is whether Av-eritt’s verified motion for new trial sets forth facts negating his intentional or conscious indifference in failing to appear at the motion to compel hearing. See Crad-dock, 133 S.W.2d at 126. It is sufficient if the movant’s motion and affidavits set forth facts which, if true, would negate intentional or consciously indifferent conduct. See Strackbein, 671 S.W.2d at 38-39 (Tex.1984). The uncontroverted allegation that Averitt’s father received the notice which was not given to Averitt until after the hearing, negates any intentionally or consciously indifferent conduct on Averitt’s part. Having met the requirements of Craddock, we hold that the trial court abused its discretion in failing to grant the motion for new trial.

Accordingly, we set aside the default judgment and remand this case for further proceedings consistent with this opinion, specifically including a rehearing of the motion to compel.

KINKEADE, J., files a dissenting opinion.

. Averitt alleged these same facts by verified denial in his answer and by a plea in abatement. Averitt failed to appear at the hearing on the plea in abatement which was then denied by the court. Under the facts, the court’s denial of the plea in abatement is not controlling on the merits of whether Averitt has alleged a meritorious defense in his motion for new trial.