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Priesing v. Thompson8/28/2001
Justice Lagarde
This case involves a no-answer default judgment entered in a personal injury lawsuit between appellant Ted Priesing, individually and d/b/a Ted's Automotive, Inc. (Priesing) and appellee Jan Thompson (Thompson). In three issues, Priesing argues (1) the trial court erred in refusing to grant his motion for new trial; (2) the trial court erred in striking his supplemental motion for new trial; and (3) the evidence is factually and legally insufficient to support the default judgment. Because the background of the case and the evidence adduced below are well known to the parties and all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. We affirm in part and reverse in part, and remand this case to the trial court for further proceedings.
In his first issue, Priesing argues the trial court erred in denying his motion for new trial. A motion for new trial is addressed to the trial court's discretion, and the trial court's ruling will not be disturbed absent a clear abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). A default judgment should be set aside if the defendant establishes (1) that its failure to answer was neither intentional nor the result of conscious indifference, but was due to mistake or accident; (2) that it has a meritorious defense; and (3) that granting its motion for new trial would not cause delay or otherwise injure the plaintiff. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992) (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939)).
Priesing argues the trial court abused its discretion because his motion for new trial established all of the Craddock elements. Specifically, Priesing contends his affidavit shows that his failure to timely answer was a mistake, and was not caused intentionally or by conscious indifference.
Priesing further argues that Thompson's objections to his affidavit are waived because she did not obtain a ruling from the trial court on her objections, and, accordingly, the testimony was admitted for all purposes and "must" be considered by this Court.
The only evidence presented to the trial court in support of Priesing's motion for new trial was his affidavit in which he states that, after being served with citation and Thompson's petition, he contacted his insurance agency and was advised to forward the papers to their office for handling.
He then states it is "his understanding" that the papers were forwarded to his insurance company, and then to his attorney's office. Priesing's affidavit further states the failure to answer was "not intentional or the result of conscious indifference," because his insurance company had assumed service had not been completed.
When a defendant relies on his agent to file an answer, he must demonstrate that both he and his agent were free of conscious indifference. Holt Atherton, 835 S.W.2d at 83. Thus, because Priesing was relying on his insurance company and/or his attorney to file an answer, he had to establish that their failure to do so was not the result of intentional disregard or conscious indifference. See id.
Because there were no findings of fact or conclusions of law in this case, we presume the trial court made all necessary findings to support its judgment. Holt Atherton, 835 S.W.2d at 83; Popkowsi v. Gramza, 671 S.W.2d 915, 918 (Tex. App._Houston [1st Dist.] 1984, no writ). Priesing's statement that the failure to answer was not intentional or the result of conscious indifference is a conclusory allegation, and is not sufficient to support the firs
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