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Maverick Oil Tools, LLC v. Dem Well Head Services, LLC

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 14, 2017


          On appeal from the 343rd District Court of San Patricio County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa



         By four issues, appellant Maverick Oil Tools, LLC (Maverick) challenges the trial court's denial of its motion for new trial and motion to modify the judgment contending that (1) the trial court should have granted its motion for new trial under Craddock (issues one and two); (2) the damages awarded to appellee DEM Well Head Services, LLC (DEM) were not supported by sufficient evidence (issue three); and (3) the trial court erred in calculating prejudgment interest (issue four). See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). We affirm.

         I. Motion for New Trial

         A. Pertinent Facts

         The trial court held a hearing on Maverick's motion for new trial. At this hearing, Maverick did not present any testimony and relied on the sworn affidavit of Jim Dane, Maverick's owner. In his affidavit, Dane stated that after being served with this lawsuit on June 18, 2015, "Maverick reached out to DEM" and attempted to resolve this lawsuit with DEM and that Dane "on behalf of Maverick had multiple discussions with DEM in regards to potential solutions of the issues between the parties." Dane claimed that "[o]n August 3, 2015, DEM directed [him] to speak with their attorney . . . about a settlement proposal" and after contacting DEM's attorney, "it was decided that a three way call between Maverick, DEM, and [DEM's attorney] would be the most appropriate way to conduct further negotiations." Dane stated that a proposal for settlement was provided to Maverick, and he then received the default judgment that was signed on August 6, 2015.

         At the motion for new trial hearing, Carmel Martinez, DEM's owner, testified that Maverick had failed to pay invoices for the rental of certain equipment from DEM. Martinez stated that he had spoken with Dane on several occasions. However, Martinez denied that these discussions "contemplated" a settlement of the case. When asked by DEM's trial counsel, "Did Mr. Dane ever offer to settle the case with you, " and "What he owed you, " Martinez responded "No" to both questions. Martinez testified that he "felt" that Dane "was dragging on" and was "trying to get information" about "something that was irrelevant." Martinez said, "He basically continued to ask questions about [a] company, when that had nothing to do with our business." DEM's trial counsel asked, "All right, sir. So when [Dane] says that he was working with you towards a resolution of issues, would that be true or not true?" Martinez replied, "That would be false."[1] When asked by DEM's trial counsel, "To your knowledge, [DEM's trial counsel] only had one conversation with Mr. Dane; is that right" and "I believe it was on August 10th, " Martinez answered "Yes." Martinez agreed with DEM's trial counsel that the conversation between Dane and DEM's trial counsel occurred after the default judgment had been signed and that in a three-way conversation, DEM's trial counsel "made it clear" to Dane "that the default judgment had already been obtained against him."

         B. Standard of Review and Applicable Law

         The denial of a motion for new trial under Craddock is reviewed for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); see also Craddock, 133 S.W.2d at 126. "We . . . review the record to determine if, based on the facts before it, the trial court abused its discretion in overruling" the motion for new trial. Balogh v. Ramos, 978 S.W.2d 696, 698 (Tex. App.-Corpus Christi 1998, pet. denied).

         Specifically, as relevant here, to set aside the default judgment, Maverick must have established that its reason for not appearing was due to a mistake or accident and was not intentional or the result of conscious indifference.[2] See Levine v. Shackelford, Melton & McKinley, L.L.P., 248 S.W.3d 166, 168 (Tex. 2008) (citing Craddock). Under this standard, Maverick must have negated a finding that it knew about the lawsuit but did not care to answer it. See id.

         When deciding whether to grant or deny a motion for new trial challenging the trial court's default judgment under Craddock, the trial court is bound to accept as true the affidavits of the movant, unless the trial court holds an evidentiary hearing. Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574, 576 (Tex. App.-Dallas 1989, no pet.). If a hearing is held, the party moving to set aside a default judgment must prove the facts so alleged by a preponderance of the evidence. Roberts v. Roberts, 621 S.W.2d 835, 836 (Tex. App.-Waco 1981, no writ.). "When the plaintiff controverts the defendant's allegations, the trial court must look to the knowledge and acts of the defendant to determine whether his conduct was the result of conscious indifference or intentional disregard." Holberg v. Short, 731 S.W.2d 584, 586-87 (Tex. App.-Houston [14th Dist.] 1987, no pet.) (citing Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex.1984)). "Where the non-movant presents evidence at the new trial hearing tending to show intentional or consciously indifferent conduct, it becomes a question for the trial court to determine." Jackson v. Mares, 802 S.W.2d 48, 50 (Tex. App.-Corpus Christi 1990, writ. denied).

         C. Analysis

         By its first and second issues, Maverick contends that its failure to answer was due to accident or mistake, and the trial court abused its discretion by denying its motion for new trial. Specifically, Maverick argues that it provided evidence that ...

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