Court of Appeals of Texas, Sixth District, Texarkana
JACK R. DUNN, Appellant
BROOKE JENNINGS PARKER AND ASHLEY NICOLE JENNINGS, Appellees
Submitted: September 10, 2019
Appeal from the County Court at Law Harrison County, Texas
Trial Court No. 2018-10469-CCL.
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice.
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.
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.
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
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.
did not object to the motion for final judgment or file a
motion for new trial or other post-judgment motion in the
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
Refusing to Set Aside the Partial Default Judgment Was Within
the Discretion of the Trial Court
we address Dunn's contention that the trial court erred
by not setting aside the partial default judgment.
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