Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Behr Southerland Const, Inc. v. Hw Wahlers, Inc.
June 29, 2001
Unpublished Opinion

Behr Southerland Const, Inc. v. Hw Wahlers, Inc.

Court of Appeals of Texas, San Antonio.

BEHR SOUTHERLAND CONSTRUCTION, INC. and Troy D. Southerland, Appellants,


H.W. WAHLERS, INC., Appellee.

No. 04-00-00679-CV.


June 29, 2001.

From the County Court at Law Number Seven, Bexar County, Texas, Trial Court No. 259,712; Irene Rios, Judge Presiding.




*1 This is an appeal of a default judgment rendered against appellants Behr Southerland Construction Co. and Troy D. Southerland in favor of appellee H.W. Wahlers, Inc. We are asked to decide if the trial court erred in denying Southerland’s motion for new trial. We sustain the issue and reverse the trial court’s judgment.


Southerland is a San Antonio general contractor for whom Wahlers performed work as a subcontractor in 1998 and 1999. When Southerland did not pay Wahlers for the work, Wahlers sued him and his company on a sworn account for $8,197.77 plus attorney’s fees. Southerland was served with citation on May 22, 2000 and the return and proof of service were filed June 6, 2000. The trial court rendered a default judgment for Wahlers on June 16, 2000, then rendered a corrected default judgment for Wahlers on June 23, 2000.

Southerland did not timely file an answer; it was mailed June 23, 2000 and filed June 28, 2000. Southerland filed a motion for new trial on July 11, 2000. After a hearing, the trial court denied the motion and this appeal ensued.


We review a trial court’s ruling on a motion for new trial following a default judgment under an abuse of discretion standard. Id. at 126.


Failure to File Answer

To discharge his burden to show the failure to answer was not intentional or the result of conscious indifference, Southerland was required to show both he and his attorney made a mistake. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992) (when a defendant relies on his agent to file an answer, he must demonstrate that both he and his agent were free of conscious indifference).

Southerland’s counsel informed the trial court that his client told him he was served on May 30, 2001, but he was actually served on May 22, 2001. Based on this incorrect date of May 30, counsel believed he had timely filed an answer. Counsel did not discover the correct date of service until the morning he arrived at the courthouse for the hearing on the motion for new trial and examined the file. Counsel testified he had made a “gosh honest mistake.” Southerland did not appear at the hearing, and the record is silent in regard to the reason Southerland told his attorney he was served on May 30, instead of telling him he was served on May 22. However, it is clear from the record of the hearing on the motion for new trial that Southerland had contacted his attorney, that counsel for both parties had been in touch with one another regarding the suit, and had even discussed settling.

*2 We are satisfied that the untimely answer was not intentional nor due to conscious indifference by Southerland or his attorney.

Meritorious Defense

To set up a meritorious defense, a defendant must allege facts that in law would be a defense to the cause of action asserted by the plaintiff, and must support these facts with affidavits or other evidence. See Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966). In the sworn motion for new trial, Southerland asserted the following:

1. Plaintiff filed suit alleging Defendant breached its contract with the Plaintiff. In fact, the Plaintiff breached the contract.

2. The Plaintiff did not complete the contract in a timely fashion, nor in a good and workmanlike manner.

3. The Plaintiff failed to supervise its workers, and routinely overbilled the Defendant for his services.

4. Additionally, the Plaintiff slandered the Defendant and is guilty of tortious interference with the Defendant’s business relationships.

No affidavits were submitted with the motion for new trial nor was any other evidence offered. Wahlers characterizes these statements as being purely conclusory. Relying on several cases in which a defendant’s factual assertions were found wanting, Wahlers argues Southerland did not set up a meritorious defense. See, e.g., Liberty Mutual Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 618 (Tex.App.-El Paso 1988, no writ) (finding insufficient defendant’s statement that plaintiff was not totally and permanently incapacitated).

Southerland argues his assertions were not conclusory but, rather, set out sufficient facts. We agree. In Ward v. Nava, 488 S.W.2d 736-738 (Tex.1972), the court also found sufficient the defendant’s statement that plaintiff had been drinking heavily and had dashed in front of defendant’s car.

This court concluded that a defendant’s assertion that she owed the plaintiff no money by virtue of the settlement agreement could be construed as an assertion that defendant had already paid plaintiff what she owed her, thus setting up a meritorious defense. Sisco v. Briones, 809 S.W.2d 524, 527 (Tex.App.-San Antonio 1991, no writ). Here, we consider Southerland’s assertions-that Wahlers did not complete the work in a timely fashion or in a workmanlike way, did not supervise his workers, and routinely overbilled for his services-facts, not merely conclusions, and determine they are sufficient to set up a meritorious defense.

Injury or Delay

*3 Southerland offered to go to trial immediately and to pay the costs incurred by the default judgment, and Wahlers does not contend he would be injured if a new trial were granted. Accordingly, the third Craddock prong was satisfied.


When all three requirements are met, a trial court abuses its discretion in denying the motion for new trial. Craddock, 133 S.W.2d at 126. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings.

End of Document