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Dunn v. Parker

Court of Appeals of Texas, Sixth District, Texarkana

September 20, 2019

JACK R. DUNN, Appellant
v.
BROOKE JENNINGS PARKER AND ASHLEY NICOLE JENNINGS, Appellees

          Submitted: September 10, 2019

          On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2018-10469-CCL.

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice.

         Three months before his mid-2017 death, James A. Jennings purchased a 2004 pickup truck and a 2004 fifth-wheel travel trailer for $28, 000.00. Finding that, one month before Jennings' death, Jack R. Dunn converted the truck and trailer from Jennings, the trial court first granted a partial default judgment against Dunn in favor of the distributees of Jennings' estate, Brooke Jennings Parker and Ashley Nicole Jennings (the Appellees), and then granted a complete final judgment. We modify the trial court's judgment to limit statutory damages under the Texas Theft Liability Act (the Act) to $1, 000.00 and otherwise affirm the judgment because (1) refusing to set aside the partial default judgment was within the discretion of the trial court, and (2) sufficient evidence supports the award of actual damages and attorney fees, but (3) the Texas Theft Liability Act limits its statutory damages to $1, 000.00.

         Two months after Jennings' death, Dunn applied for titles to the truck and travel trailer and represented that he had purchased them from Roger Bagley. Thereafter, the Appellees filed suit against Dunn seeking damages and equitable relief for conversion, fraudulent transaction, common law fraud, and violation of the Act and a declaratory judgment that they were the lawful owners of the truck and travel trailer. Appellees joined the Texas Department of Motor Vehicles (DMV), seeking to get titles issued in their names.

         When Dunn failed to answer the lawsuit, the trial court entered a partial default judgment granting Appellees' petition for declaratory judgment, decreeing Appellees were the rightful owners of the truck and travel trailer, and ordering the DMV to cancel the titles previously issued to Dunn. Dunn then filed a motion for new trial and asked the trial court to set aside the partial default judgment. After a hearing, the trial court denied Dunn's motion and reaffirmed its judgment that Appellees were the rightful owners of the truck and travel trailer. Appellees then filed a motion for final judgment, and the trial court entered a final judgment, based on the pleadings on file and the evidence before the court, against Dunn incorporating its prior default declaratory judgment for conversion and added common law fraud and violation of the Act. In its final judgment, the trial court:

1. declared Appellees to be the rightful owners of the truck and travel trailer;
2. ordered the DMV to cancel the titles to the truck and travel trailer issued to Dunn;
3. ordered the DMV to issue new titles to the truck and travel trailer to Appellees, jointly;
4. ordered that a writ be issued for the seizure of the truck and travel trailer and their contents and delivery of the same to Appellees;
5. awarded Appellees $14, 160.00 in attorney fees under the Act; and
6. awarded Appellees $28, 000.00 in actual damages and $28, 000.00 in additional statutory damages under the Act, payable only if the truck and travel trailer and their contents were not returned to Appellees.

         Dunn did not object to the motion for final judgment or file a motion for new trial or other post-judgment motion in the trial court.

         On appeal, Dunn complains that the trial court erred in not setting aside the partial default judgment and that insufficient evidence supported the award of damages and attorney fees.

         (1) Refusing to Set Aside the Partial Default Judgment Was Within the Discretion of the Trial Court

         First, we address Dunn's contention that the trial court erred by not setting aside the partial default judgment.

         We review for an abuse of discretion a trial court's refusal to set aside a default judgment and grant a new trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). A trial court abuses its discretion when the party moving for a new trial after default judgment meets all three elements of the test set forth in Craddock v Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Lerma, 288 S.W.3d at 926. Under Craddock, to have a default judgment set aside, the defendant must show that (1) his or her failure to answer was not intentional or the result of conscious indifference, but was due to mistake or accident, (2) his or her motion sets up a meritorious defense, and (3) granting the motion will not cause a delay or otherwise injure the plaintiff. Craddock, 133 S.W.3d at 126. If the defendant fails to meet any prong of the Craddock test, we will not find an abuse of discretion. O'Connell v. O'Connell, 843 S.W.2d 212, 218 ...


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