Donato Polignone and Neal D. Roy v. Bulldog Chemicals, LLC ( 2018 )

Opinion issued August 30, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00633-CV
———————————
DONATO POLIGNONE AND NEAL D. ROY, Appellants
V.
BULLDOG CHEMICALS, LLC, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2015-71346
MEMORANDUM OPINION
Appellants, Donato Polignone and Neal D. Roy, (collectively, “appellants”)
challenge the trial court’s no-answer default judgment1 in favor of appellee, Bulldog
1
See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex.
2012) (no-answer default judgment constitutes “a default judgment caused by a
defendant’s failure to answer after service.”).
Chemicals, LLC (“Bulldog Chemicals”), in its suit against them for breach of
contract and quantum meruit. In two issues, appellants contend that the trial court
erred in not granting their motion for new trial and rendering judgment against them
in their individual capacities.
We affirm.
Background
In its original petition, Bulldog Chemicals alleged that it entered into an
agreement with appellants “for [the] purchase of goods, wares, merchandise,
materials and/or services.” In exchange for Bulldog Chemicals’s agreement to
“furnish[]” and “deliver[]” to appellants certain goods, appellants “agreed to pay”
Bulldog Chemicals $21,750. However, after Bulldog Chemicals “shipped the
goods” to appellants, they refused to pay the “amount owed.” Bulldog Chemicals
further asserted that appellants breached the parties’ agreement and owe it $21,750,
“exclusive of interest.” Moreover, appellants “benefited from the use of the goods”
and “are indebted in quantum meruit [to Bulldog Chemicals] in the principal sum of
$21,750[].” And Bulldog Chemicals requested attorney’s fees.
On February 3, 2016, Polignone was personally served with citation and a
copy of the original petition. On March 2, 2016, Roy was personally served with
citation and a copy of the original petition. After the returns of citations had been
2
on file with the clerk of the court for more than ten days 2 and appellants had failed
to appear and answer, Bulldog Chemicals moved, on April 28, 2016, for a default
judgment. On May 11, 2016, the trial court entered a default judgment against
appellants, finding that they had been “duly and legally served with process” on
February 3, 2016 and March 2, 2016, they “ha[d] wholly failed to appear or answer,”
they “ha[d] wholly made default,” and “the citation[s] with the officer[s’] return[s]
thereon ha[d] been on file with th[e] [trial] [c]ourt for ten (10) days exclusive of the
date of filing and [the date of judgment].” The trial court then held that appellants
are liable to Bulldog Chemicals, and it ordered them to pay $21,750 in damages,
$5,921.04 in attorney’s fees,3 pre- and post-judgment interest, and costs.
On June 9, 2016, appellants filed an unverified4 plea to the jurisdiction,
arguing that the trial court lacked jurisdiction over Bulldog Chemicals’s suit because
Bulldog Chemicals did not have standing to bring claims against appellants in their
individual capacities. They asserted that the agreement to purchase certain goods
“existed exclusively” between Bulldog Chemicals and NuGenTec Oilfield
Chemicals, LLC (“NuGenTec”).5 The trial court did not rule on appellants’ plea.
2
See TEX. R. CIV. P. 107(h).
3
The trial court also ordered appellants to pay additional attorney’s fees should they
unsuccessfully appeal to the court of appeals and the Texas Supreme Court.
4
See TEX. R. CIV. P. 93(1)–(2).
5
We note that “NuGenTec” is spelled differently throughout the record.
3
That same day, appellants also filed an unverified motion for new trial,
arguing that the original petition “d[id] not support [a] default judgment” against
them because they “never interacted with [Bulldog Chemicals] as individuals” and
“[a]ll of their interactions with Bulldog [Chemicals] were based on their capacit[ies]
as agents of” NuGenTec; “there were defects in service” because Bulldog Chemicals
“did not send a notice of intent to take a default judgment to the Texas Attorney
General by certified mail, return receipt requested, at least ten days before filing the
motion for default judgment”; and appellants’ “failure to answer was not intentional,
but was accidental,” they “ha[d] a meritorious defense,” and “a new trial w[ould] not
delay or prejudice” Bulldog Chemicals.
Bulldog Chemicals responded to appellants’ motion for new trial, asserting
that “the default judgment [was] fully supported by [its] original petition”; appellants
“were personally served with [its original] petition and citation and service w[as]
proper”; and appellants “failed to satisfy the [requirements of] Craddock [v.
Sunshine Bus Lines Inc., 133 S.W.2d 124 (Tex. 1939)].”
After a hearing, the trial court denied appellants’ motion for new trial.
Standing
In their second issue, appellants argue that the trial court erred in rendering
judgment against them in their individual capacities because Bulldog Chemicals
“lack[s] standing” to bring suit against them as individuals.
4
Subject-matter jurisdiction is essential to the authority of a court to decide a
case, and standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is never
presumed, cannot be waived, and may be raised for the first time on appeal. Id. at
443–46. We review standing under the same standard by which we review
subject-matter jurisdiction generally. Id. at 446. Whether a trial court has
subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004).
The test for standing requires that there be a real controversy between the
parties that will actually be determined by the judicial declaration sought. Nootsie,
Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). Without
a breach of a legal right belonging to the plaintiff, no cause of action can accrue to
its benefit. Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976). A plaintiff has
standing when it is personally aggrieved, regardless of whether it is acting with legal
authority. Nootsie, 925 S.W.2d at 661. And it has standing if: (1) it has sustained,
or is immediately in danger of sustaining, some direct injury as a result of the
wrongful act of which it complains; (2) has a direct relationship between the alleged
injury and claim sought to be adjudicated; (3) has an individual stake in the
controversy; (4) the challenged action has caused it some injury in fact, either
economical, recreational, environmental, or otherwise; or (5) it is an appropriate
5
party to assert the public’s interest in the matter as well as its own interest. Lake
Medina Conservation Soc’y, Inc./Bexar-Medina-Atascosa Ctys. WCID No. 1 v. Tex.
Nat. Res. Conservation Comm’n, 980 S.W.2d 511, 515–16 (Tex. App.—Austin
1998, pet. denied); Billy B., Inc. v. Bd. of Trustees of Galveston Wharves, 717
S.W.2d 156, 158 (Tex. App.—Houston [1st Dist.] 1986, no writ).
A plaintiff has the burden of alleging facts that affirmatively demonstrate a
court’s jurisdiction to hear a cause. Tex. Ass’n of Bus., 852 S.W.2d at 446. In our
review of standing, we construe the allegations in the pleadings as true and construe
them in favor of the pleader. Id.; Juarez v. Tex. Ass’n of Sporting Officials El Paso
Chapter, 172 S.W.3d 274, 278 (Tex. App.—El Paso 2005, no pet.). We look to the
facts alleged in the petition, but may consider other evidence in the record if
necessary to resolve the question of standing. Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 555 (Tex. 2000); In re Shifflet, 462 S.W.3d 528, 537 (Tex. App.—
Houston [1st Dist.] 2015, orig. proceeding). The standing inquiry “requires careful
judicial examination of a complaint’s allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims asserted.” Heckman v.
Williamson Cty., 369 S.W.3d 137, 153, 156 (Tex. 2012) (internal quotations omitted)
(courts “must assess standing plaintiff by plaintiff, claim by claim”). A challenge to
standing cannot be used to require the party to prove its entire case but should be
6
limited to facts that might be characterized as primarily jurisdictional. See Blue, 34
S.W.3d at 554; In re Shifflet, 462 S.W.3d at 537.
Bulldog Chemicals, in its original petition, alleged that it entered into an
agreement with appellants to “furnish[]” and “deliver[]” to them certain goods in
exchange for appellants’ agreement “to pay” Bulldog Chemicals $21,750. After
Bulldog Chemicals “shipped the goods” to appellants, they refused to pay the
“amount owed” to Bulldog Chemicals. According to Bulldog Chemicals, appellants
breached the parties’ agreement and caused Bulldog Chemicals damages in the
amount of $21,750, “exclusive of interest.” Bulldog Chemicals further alleged that
appellants “benefited from the use of the goods” and “are indebted in quantum
meruit [to Bulldog Chemicals] in the principal sum of $21,750[].”
We note that the record also contains an affidavit from Dustin O’Neal, the
president of Bulldog Chemicals, in which he testifies:
In May 2014, [appellants] placed an order with Bulldog [Chemicals]
for Contone, a chemical used in drilling operations. Shortly thereafter,
Bulldog [Chemicals] shipped the product to [appellants] and sent an
invoice to [appellants] in the amount of $21.750.00 for payment. To
date, [appellants] have failed to pay that invoice and $21,750.00 is still
due and owing from [appellants].
[Appellants] were given notice of Bulldog[] [Chemicals’s] claim on
many occasions. I emailed Mr. Polignone several times asking for
payment of Bulldog[] [Chemicals’s] invoice prior to the lawsuit being
filed. Mr. Polignone replied to me on one occasion that he was going
to return the Contone but he never did. To date, [appellants] are still in
possession of the Contone sold by [Bulldog Chemicals].
7
[Appellants’] refusal to pay Bulldog[] [Chemicals’s] claim is without
merit. [Appellants] purchased the product, Contone, from [Bulldog
Chemicals] and [it] timely delivered the Contone pursuant to the
purchase order. Mr. Polignone was a sophisticated buyer and had
experience and knowledge of the Contone that [appellants] purchased
from [Bulldog Chemicals]. [Bulldog Chemicals] answered
[appellants’] general and specific questions about the use of Contone in
oil and gas well drilling applications. [Bulldog Chemicals] did not
make any express or implied warranties about the performance of
Contone. There were no conditions as to the performance of Contone
on the sale of the product.
And an invoice, also contained in the record, from Bulldog Chemicals states that
“[p]er [a]greement [with] Donato [Polignone],” Bulldog Chemicals supplied 300
“50lb bags” of Contone at a price of $72.50 each, for a total of $21,750. The invoice
also notes that it is “[p]ast [d]ue.”
Here, Bulldog Chemicals has alleged that it had an agreement with appellants,
Bulldog Chemicals performed under the parties’ agreement, appellants breached that
agreement, and Bulldog Chemicals sustained damages as a result of appellants’
breach. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848–49 (Tex.
2005) (party has standing “when it is personally aggrieved” (internal quotations
omitted)); Nootsie, 925 S.W.2d at 661; see also Billy B., Inc., 717 S.W.2d at 158.
And appellants do not dispute that there was an agreement with Bulldog Chemicals
to purchase certain goods, namely, Contone, Bulldog Chemicals supplied Contone
pursuant to that agreement, and Bulldog Chemicals did not receive “pay[ment] for
the[] goods.”
8
Instead, appellants argue that Bulldog Chemicals should not have sued them
in their individual capacities because Bulldog Chemicals’s agreement for the
purchase of the goods was between it and NuGenTec and appellants never interacted
with Bulldog Chemicals in their individual capacities, only as agents of NuGenTec.
Any assertion that appellants are not liable to Bulldog Chemicals pursuant to the
agreement at issue in this case implicates the merits of the case and does not affect
Bulldog Chemicals’s standing to bring suit against appellants or the trial court’s
jurisdiction.6 See Wells Fargo Bank, N.A. v. Ballestas, 355 S.W.3d 187, 192 (Tex.
App.—Houston [1st Dist.] 2011, no pet.); Yasuda Fire & Marine Ins. Co. of Am. v.
Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see
6
Although framed in the context of a “standing issue,” appellants appear to raise a
capacity complaint, i.e., they were not liable to Bulldog Chemicals in the capacity
in which they were sued. See John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408
S.W.3d 645, 651–52 (Tex. App.—Dallas 2013, pet. denied) (noting confusion
between standing and capacity issues and challenge to party’s privity of contract is
challenge to capacity, not standing); Rhey v. Redic, 408 S.W.3d 440, 456–57 (Tex.
App.—El Paso 2013, no pet.) (whether plaintiffs could sue as individuals
constituted capacity, not standing issue). Capacity is a distinct issue from standing
and not a jurisdictional issue. See Douglas-Peters v. Cho, Choe & Holen, P.C., No.
05-15-01538-CV, 2017 WL 836848, at *6–7, *9 (Tex. App.—Dallas Mar. 3, 2017,
no pet.) (mem. op.); Schlein v. Griffin, No. 01-14-00799-CV, 2016 WL 1456193, at
*5 (Tex. App.—Houston [1st Dist.] Apr. 12, 2016, pet. denied) (mem. op.). And
the defense of capacity must first be raised by a verified pleading in the trial court
pursuant to Texas Rule of Civil Procedure 93, otherwise it is waived on appeal. See
TEX. R. CIV. P. 93(1)–(2); see also Nootsie, Ltd. v. Williamson Cty. Appraisal Dist.,
925 S.W.2d 659, 662 (Tex. 1996); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d
492, 494 (Tex. 1991); Brown v. Mesa Distribs., Inc., 414 S.W.3d 279, 285 (Tex.
App.—Houston [1st Dist.] 2013, no pet.). Here, appellants did not raise any
capacity complaint in a verified pleading in the trial court.
9
also Fitness Evolution, L.P. v. Headhunter Fitness, L.L.C., No. 05-13-00506-CV,
2015 WL 6750047, at *13–14 (Tex. App.—Dallas Nov. 4, 2015, no pet.) (mem. op.)
(discussing standing versus capacity); Intracare Hosp. N. v. Campbell, 222 S.W.3d
790, 795 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (lack of capacity does not
deprive trial court of subject-matter jurisdiction).
Accordingly, we hold that Bulldog Chemicals has sufficiently alleged facts
and presented evidence demonstrating its standing to bring the instant suit against
appellants.
We overrule appellants’ second issue.
Motion for New Trial
In their first issue, appellants argue that the trial court erred in not granting
their motion for new trial because they did not file an answer due to a “mistake[],”
they “have a meritorious defense,” and granting the motion for new trial “would not
result in delay or prejudice” to Bulldog Chemicals.
We review the trial court’s denial of a motion for new trial for an abuse of
discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009);
In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). In other words, the court’s ruling on
a motion for new trial will not be disturbed on appeal absent a showing of an abuse
of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). A trial court
abuses its discretion if its decision is arbitrary, unreasonable, and without reference
10
to guiding rules and principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.
1997); Imkie v. Methodist Hosp., 326 S.W.3d 339, 344 (Tex. App.—Houston [1st
Dist.] 2010, no pet.). When as here, no findings of fact and conclusions of law are
filed, the denial of a motion for new trial must be upheld on any legal theory
supported by the evidence. See Strackbein, 671 S.W.2d at 38.
In Craddock, the Texas Supreme Court set forth three requirements that a
defaulting party must satisfy to set aside a default judgment and obtain a new trial:
(1) the defaulting party’s failure to file an answer before judgment was not
intentional or the result of conscious indifference, but was a mistake or accident;
(2) the defaulting party has a meritorious defense; and (3) a new trial will not result
in delay or prejudice to the non-defaulting party. 133 S.W.2d at 126.
To successfully challenge a default judgment, the defaulting party must
allege, and support with sworn proof, the three Craddock requirements. Ivy v.
Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (noting party challenging dismissal bears
burden of establishing entitlement to relief); Wal-Mart Stores, Inc. v. Kelley, 103
S.W.3d 642, 644 (Tex. App.—Fort Worth 2003, no pet.); Pickell v. Guar. Nat’l Life
Ins. Co., 917 S.W.2d 439, 443 (Tex. App.—Houston [14th Dist.] 1996, no writ).
Thus, to prevail on a motion for new trial under Craddock, the defaulting party must
(1) allege facts and attach affidavits to a verified motion to set aside the default
judgment or motion for new trial that would meet the three Craddock requirements
11
or (2) present evidence at the hearing on its motion that meets those requirements.7
See Pickell, 917 S.W.2d at 443. A trial court abuses its discretion in denying a new
trial when the requirements of the Craddock test are satisfied. Dolgencorp, 288
S.W.3d at 926; Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992);
Pickell, 917 S.W.2d at 443.
In order to determine whether the trial court erred in not setting aside the
default judgment against appellants, we first consider whether their failure to answer
was not intentional or the result of conscious indifference, but due to a mistake or an
accident. “Conscious indifference” requires more than just mere negligence; rather,
it means a “failure to take some action that would seem indicated to a person of
reasonable sensibilities under the same circumstances.” Smith v. Babcock & Wilcox
Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995); Mahand v. Delaney, 60 S.W.3d 371,
374 (Tex. App.—Houston [1st Dist.] 2001, no pet.); Sharpe v. Kilcoyne, 962 S.W.2d
697, 701 (Tex. App.—Fort Worth 1998, no pet.); see also Milestone Operating, Inc.
v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (“Consciously indifferent
conduct occurs when the defendant knew it was sued but did not care.” (internal
quotations omitted)). Appellants must offer some excuse for their failure to answer,
which need not necessarily be a good excuse. See Sutherland v. Spencer, 376
7
In this case, there is no reporter’s record from the trial court’s hearing on appellants’
motion for new trial.
12
S.W.3d 752, 755 (Tex. 2012); Mahand, 60 S.W.3d at 374 (“Even a slight excuse
may justify a new trial.”); State v. Sledge, 982 S.W.2d 911, 914 (Tex. App.—
Houston [14th Dist.] 1998, no pet.).
Uncontroverted factual allegations in a defaulting party’s motion for new trial
and accompanying affidavits, if true, can negate intent or conscious indifference.
Todd v. Heinrich, No. 01-10-00267-CV, 2011 WL 2183881, at *6 (Tex. App.—
Houston [1st Dist.] June 2, 2011, no pet.) (mem. op.); Jackson v. Mares, 802 S.W.2d
48, 50 (Tex. App.—Corpus Christi 1990, writ denied); see also Milestone Operating,
388 S.W.3d at 309. However, if the non-defaulting party presents controverting
evidence showing conscious indifference, the issue becomes a fact question for the
trial court. Todd, 2011 WL 2183881, at *6; Jackson, 802 S.W.2d at 50. “The [trial]
court, as fact-finder at a hearing on a motion for new trial, has the duty of
ascertaining the true facts . . . and it is within the [trial] court’s province to judge the
credibility of the witnesses and to determine the weight to be given their testimony.”
Jackson, 802 S.W.2d at 51; see also Todd, 2011 WL 2183881, at *6. In determining
whether the failure to answer was due to intentional disregard or conscious
indifference, the court may look at all of the evidence in the record. Dir., State Emps.
Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994); see also Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992); see also Moya v.
Lozano, 921 S.W.2d 296, 299 (Tex. App.—Corpus Christi 1996, no writ) (holding
13
court reviews all evidence in record to determine whether allegations are
controverted).
Here, appellants attached to their motion for new trial their two affidavits. In
his affidavit, Polignone testified:
Although I failed to properly answer the lawsuit in question, my failure
was simply an oversight and not a matter of my conscious disregard for
the seriousness of th[e] matter. Additionally, I never interacted with
[Bulldog Chemicals] in my individual capacity. I only ever conducted
business under the name Nu[G]entec . . . , a company registered under
the laws of the state of Delaware.
In his affidavit, Roy similarly testified:
Although I failed to properly answer the lawsuit in question, my failure
was simply an oversight and not a matter of my conscious disregard for
the seriousness of th[e] matter. Additionally, I never interacted with
[Bulldog Chemicals] in my individual capacity. I only ever conducted
business under the name Nu[G]entec . . . , a company registered under
the laws of the state of Delaware.
Notably, appellants, in their affidavits, did not deny knowledge of Bulldog
Chemicals’s suit against them. And the record evidence shows that appellants
received a demand letter from Bulldog Chemicals informing them that they owed
Bulldog Chemicals $21,750 and if payment was not received “immediately,” then
Bulldog Chemicals would file suit. Further, after Bulldog Chemicals filed suit,
Polignone was personally served with citation and a copy of the original petition on
February 3, 2016, and Roy was personally served with citation and a copy of the
original petition on March 2, 2016. And on April 28, 2016, appellants were served
14
by certified mail, return receipt requested, with Bulldog Chemicals’s motion for
default judgment and notice of the motion’s May 9, 2016 submission date. Bulldog
Chemicals’s certified mail receipts are contained in the record and the “green cards”
are signed by appellants, showing that they received the motion for default judgment
and notice of the submission date. (Internal quotations omitted.)
When the defaulting party knows that it is being sued and the opposing party
is actively pursuing its claim against it and in response does nothing, the defaulting
party acts with conscious indifference. See Sharpe, 962 S.W.2d at 701; Prince v.
Prince, 912 S.W.2d 367, 369–70 (Tex. App.—Houston [14th Dist.] 1995, no writ);
Johnson v. Edmonds, 712 S.W.2d 651, 652–53 (Tex. App.—Fort Worth 1986, no
writ); see also In re R.R., 209 S.W.3d at 115 (receiving citation and doing nothing
following service “does not constitute a mistake . . . sufficient to meet the Craddock
requirements”); Fiske v. Fiske, No. 01-03-00048-CV, 2004 WL 1847368, at *7–8
(Tex. App.—Houston [1st Dist.] Aug. 19, 2004, no pet.) (mem. op.) (where
defendant had actual knowledge of possible default judgment and did nothing, he
did not establish failure to answer not result of conscious indifference); cf. Milestone
Operating, 388 S.W.3d at 310.
Further, although appellants in their affidavit testified that their failure to
“properly answer [Bulldog Chemicals’s] lawsuit” was due to “oversight and not a
matter of [their] conscious disregard for the seriousness of th[e] matter,” they do not
15
provide any explanation as to why they did not take any action after receiving notice
of the filing of Bulldog Chemicals’s suit and its subsequently filed motion for default
judgment. See Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 575
(Tex. 2006) (conclusory statement must be supported by some explanation);
Interconex, Inc. v. Ugarov, 224 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (same); Freeman v. Pevehouse, 79 S.W.3d 637, 645–46 (Tex. App.—
Waco 2002, no pet.) (defendant must explain under oath what mistake or accident
caused failure to timely file answer); see also Holt Atherton Indus., 835 S.W.2d at
82–83. And appellants’ conclusory statements in their affidavits that their failure to
answer was not the result of their “conscious disregard for the seriousness of th[e]
matter” are not sufficient to satisfy the first requirement of Craddock. See Holt
Atherton Indus., 835 S.W.2d at 82–83 (conclusory allegations insufficient to
establish Craddock requirements); Sheraton Homes, Inc. v. Shipley, 137 S.W.3d
379, 382 (Tex. App.—Dallas 2004, no pet.); Freeman, 79 S.W.3d at 645–46; Folsom
Invs., Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex. App.—Fort Worth 1982, writ ref’d
n.r.e.) (“Conclusory allegations of no intent or conscious indifference do not
suffice . . . .”); see also Interconex, 224 S.W.3d at 532 n.2 (conclusory means
“[e]xpressing a factual inference without stating the underlying facts on which the
inference is based” (internal quotations omitted)).
16
Finally, we note that appellants, in their unverified motion for new trial, did
also assert that they are “residents of the State of California,” are “unfamiliar with
procedure in the State of Texas,” “sought counsel from attorneys licensed out of the
state,” the “out of state” attorneys that appellants conferred with “were . . . unaware
of the limitations placed on [appellants] in Texas [c]ourt[s],” and, although they
“intended to seek local counsel,” they “did [not do] so prior to the signing of the
default judgment on May 11, 2016.”8 Notably, though, unverified factual allegations
in a defaulting party’s motion for new trial cannot be used to establish that his failure
to file an answer was not intentional or the result of conscious indifference.9 See
Wiseman v. Levinthal, 821 S.W.2d 439, 442 (Tex. App.—Houston [1st Dist.] 1991,
no writ) (holding defaulting party’s allegation in motion for new trial “that his failure
to answer was not due to conscious indifference” not verified or supported by
affidavit and, thus, did not constitute competent evidence); see also Ivy, 407 S.W.2d
at 214; Chamberlain v. Chamberlain, No. 12-09-00187-CV, 2011 WL 2135128, at
*3 (Tex. App.—Tyler May 31, 2011, no pet.) (mem. op.) (allegation neither verified
nor supported by affidavit not competent evidence or proof conduct not intentional
or result of conscious indifference); Suarez v. Suarez, No. 13-04-108-CV, 2006 WL
8
Appellants further assert that their “failure . . . to answer was purely a mistake of
[p]ro se, out of state residents, and not conscious indifference.”
9
We note that the factual allegations in appellants’ motion for new trial are not
supported by the affidavits that appellants did file in connection with their motion.
17
1194960, at *1 (Tex. App.—Corpus Christi May 4, 2006, no pet.) (mem. op.)
(allegations in motion for new trial regarding failure to appear not verified or
supported by affidavit or other evidence); cf. Mathis v. Lockwood, 166 S.W.3d 743,
744–46 (Tex. 2005) (holding evidence sufficient to establish first Craddock element
where defaulting party’s sworn motion for new trial asserted failure to appear at trial
due to not receiving notice of setting).
After reviewing the evidence of appellants’ acts and knowledge found in the
record, we conclude that the trial court could have reasonably found that appellants
“knew [they] w[ere] [being] sued but did not care.” See Milestone Operating, 388
S.W.3d at 310 (internal quotations omitted); see also Evans, 889 S.W.2d at 269
(courts look to knowledge and acts of defaulting party to determine whether failure
to answer intentional or due to conscious indifference). In other words, the trial
court could have determined that appellants acted with conscious indifference to the
proceedings when they failed to answer Bulldog Chemicals’s suit, and as a result,
they did not satisfy the first Craddock requirement. See Craddock, 133 S.W.2d at
126.
Accordingly, we hold that the trial court did not err in denying appellants’
motion for new trial.
We overrule appellants’ first issue.
18
Frivolous Appeal
In its brief, Bulldog Chemicals contends that appellants’ appeal is frivolous
and asks this Court to “sanction[]” appellants. See TEX. R. APP. P. 45 (damages for
frivolous appeals in civil cases).
After considering the record, briefs, and other papers filed in this Court, we
may award a prevailing party “just damages” if we objectively determine that an
appeal is frivolous. Id.; see also Smith v. Brown, 51 S.W.3d 376, 380–81 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied). An appeal is frivolous when the
record, viewed from the perspective of the advocate, does not provide reasonable
grounds for the advocate to believe that its case could be reversed. Smith, 51 S.W.3d
at 381. The decision to grant appellate sanctions is a matter of discretion that an
appellate court exercises with prudence and caution and only after careful
deliberation. Id. And rule 45 does not require the Court to award just damages in
every case in which an appeal is frivolous. Woods v. Kenner, 501 S.W.3d 185, 198
(Tex. App.—Houston [1st Dist.] 2016, no pet.); Glassman v. Goodfriend, 347
S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
After a review of the record, briefing, and other papers filed in this Court, we
deny Bulldog Chemicals’s request for sanctions against appellants.
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Conclusion
We affirm the judgment of the trial court and deny Bulldog Chemicals’s
request for sanctions under Texas Rule of Appellate Procedure 45.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Caughey.
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