Court of Appeals of Texas, Amarillo.

HOFFMAN-NEW YORKER, INC., APPELLANT

v.

Gloria ZUBIA, APPELLEE

No. 07-96-0084-CV.

|

July 9, 1997.

*1 Hoffman-New Yorker, Inc. (Hoffman) appeals the trial court’s denial of Hoffman’s motion for new trial, which was filed after a default judgment was rendered in favor of Gloria Zubia (Zubia). Because Hoffman has proved itself entitled to a new trial under the analysis found in Craddock v. Sunshine Bus Lines, we conclude that the trial court abused its discretion in denying Hoffman a new trial and reverse and remand this case to the trial court.

Zubia brought suit against Hoffman for personal injuries allegedly suffered in the operation of a clothes press that was manufactured by Hoffman. Hoffman’s registered agent, Terence Rothlisberger, was served with the petition on September 12, 1995. Hoffman failed to file an answer to the petition, and the trial court rendered a default judgment against Hoffman and awarded Zubia damages of approximately $95,000.00. Subsequently, Hoffman filed a request to vacate the judgment and a motion for new trial on the grounds that the petition which was served on Rothlisberger was lost by accident or mistake. After a hearing on the matter, the trial court denied Hoffman’s request and motion.

In its sole point of error, Hoffman asserts that the trial court abused its discretion in overruling the motion for new trial. A motion for new trial is reviewed by an abuse of discretion standard. Old Republic Insurance Co. v. Scott, 873 S.W.2d 381, 382 (Tex.1994). In moving a trial court for a new trial after the rendition of a default judgment, the movant must meet the three-part test found in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Under the Craddock analysis, the movant must establish: 1) that the failure to answer before judgment was not intentional or the result of conscious indifference, 2) that the motion for new trial sets up a meritorious defense, and 3) that the granting of the motion for new trial would not result in delay or otherwise injure the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d at 126. Upon the establishment of these three elements, a new trial should be granted.

Before applying the Craddock analysis, we note initially that new trials have historically been liberally granted, and that established case law holds that mere negligence on the part of the movant will not support the denial of a new trial in a default judgment situation. Norton v. Martinez, 935 S.W.2d 898, 901 (Tex.App.-San Antonio 1996, no writ); Ferguson & Co. v. Roll, 776 S.W.2d 692, 697 (Tex.App.-Dallas 1989, no writ); Gotcher v. Barnett, 757 S.W.2d 398, 402 (Tex.App.-Houston [14th Dist.] 1988, no writ). Therefore, if a failure to answer a petition is merely the result of an accident, a trial court abuses its discretion by not granting a new trial. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d at 125; Ferguson & Co. v. Roll, 776 S.W.2d at 695.

*2 Under the first prong of the Craddock analysis, Hoffman must prove that it acted without intentional or consciously indifferent conduct in failing to answer the petition. In support of its motion for new trial, Hoffman attached the affidavits of Rothlisberger; Debra Preusch, the executive secretary for Hoffman; John Grazziano, Hoffman’s insurance agent at the Dilk’s Agency; and Janet Gomes, the claims representative for the Dilk’s Agency. Rothlisberger claims to have followed the normal procedure on the day he received the petition by giving it to Preusch for mailing to the Dilk’s Agency. Preusch claims to have mailed the petition to the Dilk’s Agency, that she does not receive confirmation from the Dilk’s Agency that the petition has been received, and that she has never encountered problems with this procedure in the past.

Grazziano testified that he frequently receives papers pertaining to lawsuits that Hoffman is involved in through the mail, and that he then forwards them to the claims representative for the Dilk’s Agency, Janet Gomes. Grazziano further testified that he never received the petition in this case from Hoffman. Finally, Gomes testified that when she receives lawsuit papers from Grazziano pertaining to Hoffman, she forwards them to Zurich-American, Hoffman’s insurer, so that an attorney may be hired and the petition answered. Gomes further testified that she did not receive the petition in this case from Grazziano. This testimony, if true, obviously shows that the papers were accidentally lost in the mail and that the failure to answer the petition was not intentional or the result of conscious indifference.

Zubia claims to have controverted the affidavit evidence proffered by Hoffman. She has attempted to do this by taking the depositions of Rothlisberger and Preusch. A review of this deposition testimony reveals that Zubia elicited additional facts showing the omissions of the Hoffman employees, i.e., failing to follow-up on the mailing of the petition by calling the Dilk’s Agency, failing to send the petition by certified mail, failing to send a cover letter with the petition or requesting acknowledgment from the Dilk’s Agency that the petition has been received. These facts specifically point out the negligent acts or omissions of the Hoffman employees. However, as stated above, mere negligence on the part of the movant will not support the denial of a new trial in a default judgment situation.

Further, the deposition testimony fails to specifically controvert any of the facts asserted in the affidavits offered by Hoffman. The deposition testimony does not assert that Preusch never mailed the petition. The deposition testimony does not assert that Rothlisberger failed to give the petition to Preusch. The deposition testimony only shows what the Hoffman employees should have done differently to insure that the petition would reach the Dilk’s Agency. When factual assertions in a movant’s affidavits are not controverted, the movant satisfies its burden if the affidavits set forth facts that, if true, negate intentional or consciously indifferent conduct. Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 269 (Tex.1994). Accordingly, because the affidavits of Rothlisberger and Preusch are not controverted, and because the deposition testimony offered by Zubia goes to negligence instead of intentional or consciously indifferent conduct, we conclude that Hoffman has negated the intentional act or conscious indifference prong of the Craddock analysis.

*3 Next, under Craddock, we inquire as to whether Hoffman’s motion for new trial sets up a meritorious defense. In this connection, we review the movant’s motion for new trial and supporting affidavits, and do not look to whether the alleged facts are controverted. Director, State Employee’s Workers’ Compensation Div. v. Evans, 889 S.W.2d at 270. In this connection, Hoffman offered the affidavit of Roger Baney, the quality control manager for Hoffman. Baney testified that the clothes press which allegedly injured Zubia was shipped to Levi Strauss by Hoffman. He further testified that before Hoffman ships a clothes press to a customer, a detailed inspection is done and an inspection checklist is completed. As for the specific clothes press that is the subject of this lawsuit, Baney testified that he reviewed the checklist generated from the inspection of the clothes press, and from that checklist concluded that the clothes press had no defects and appropriate warning labels affixed when it left Hoffman’s control.

Based on this affidavit testimony, Hoffman asserted in its motion for new trial that the press had no marketing or manufacturing defects and that any defects which later occurred were the fault of someone other than Hoffman. As such, we conclude that Hoffman established a meritorious defense and satisfied the second prong of the Craddock analysis.

Finally, under Craddock, Hoffman must assert that the granting of a new trial would not cause undue delay or inflict harm on Zubia. In its assertion, Hoffman must state that it is prepared to proceed to trial and is willing to reimburse Zubia for the expenses and costs which the trial court determines were occasioned by the movant’s conduct in failing to answer. Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex.1984). Hoffman, in its motion for new trial, has specifically offered to reimburse Zubia and alleged that the granting of a new trial would not occasion any undue delay or infliction of harm on Zubia. Therefore, the burden of proving injury shifts to Zubia. Director, State Employee’s Workers’ Compensation Div. v. Evans, 889 S.W.2d at 270. Zubia does not contend that the granting of a new trial would in any way cause undue delay or injury to her. Accordingly, Hoffman has satisfied the third prong of the Craddock analysis.

In sum, we conclude that Hoffman has satisfied all three prongs of the Craddock analysis, and therefore the trial court abused its discretion in denying Hoffman’s motion for new trial. Accordingly, we sustain Hoffman’s point of error, reverse the judgment of the trial court, and remand this case to the trial court for proceedings consistent with this opinion.

OPINION

*4 PER CURIAM