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At a Glance:
Director State Employees Workers' Compensation Div. v. Evans
June 22, 1994
889 S.W.2d 266
Texas Supreme Court
Published Opinion

Director State Employees Workers' Compensation Div. v. Evans

Supreme Court of Texas.



Paulette EVANS, Respondent.

No. D–3078.


May 11, 1994.


Rehearing Overruled June 22, 1994.

Attorneys & Firms

*267 Barbara L. Stroud, Austin, for petitioner.

Tom L. Ragland, Waco, for respondent.


GONZALEZ, Justice, delivered the opinion of the Court, in which all Justices join.

The dispositive issue presented in this workers’ compensation case is whether the trial court abused its discretion in refusing to set aside a default judgment and grant a motion for new trial. Specifically at issue is whether a movant is required to introduce evidence at the hearing on its motion for new trial in order to satisfy the test in 835 S.W.2d 230. We reverse the judgment of the court of appeals and remand for trial.

Paulette Evans filed a workers’ compensation action against the State for injuries allegedly sustained during her employment at the Mexia State School. The trial was originally set for March 26, 1990, but Ms. Evans moved for a continuance. The trial was reset for March 25, 1991, with an alternate setting of May 28, 1991. On February 28, 1991, the assistant attorney general handling the case, Lance Sharp, requested that the trial date be changed to April 22, 1991. Counsel for Ms. Evans agreed, and a letter was sent to the clerk resetting the case for April 22.

Mr. Sharp subsequently resigned from the attorney general’s office effective April 19, 1991. Barbara Stroud, who assumed responsibility for Mr. Sharp’s case load, was informed that this case was set for trial on May 28, 1991. Ms. Stroud asserts that she was unaware that the State and Ms. Evans had agreed to an April 22, 1991 trial date due to Mr. Sharp’s failure to record the trial date on his calendar or to note the trial date in the case file. The State did not make an appearance at the trial, and a post-answer default judgment was taken against the State.

After Ms. Stroud received a copy of the judgment, the State timely filed a Motion to Set Aside Default Judgment and Motion for New Trial. The State contended in its motion that it was entitled to a new trial because Ms. Evans failed to comply with the statutory ten-day notice requirement applicable to default judgments against the State and because the State met the three-part *268 835 S.W.2d at 232, holding that the court could not consider the State’s affidavits attached to its motion for new trial since they were not introduced at the hearing. We reverse the judgment of the court of appeals because the trial court abused its discretion in refusing to grant a new trial.


The court of appeals held that the trial court “did not abuse its discretion in denying the motion for new trial because the State did not meet its burden on any of the Craddock tests when it failed to offer any evidence.” Strackbein, 671 S.W.2d at 38–39. It is sufficient that the affidavits are attached to the motion for new trial and are part of the record.

Craddock Test

Craddock provides that a default judgment should be set aside and a new trial ordered in any case in which:

[1] the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; [2] provided the motion for a new trial sets up a meritorious defense and [3] is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex.1992).

Consciously Indifferent or Intentional Conduct

In Cliff, 724 S.W.2d at 778.

In Strackbein does not require a movant to introduce its supporting affidavits as evidence in order for them to be considered by the trial court. In the case at *269 hand, although there were affidavits filed by the nonmovant and a record of the hearing was preserved, nothing presented was sufficient to controvert the factual assertions in the State’s motion for new trial and attached affidavits.

“In determining whether the failure to appear was due to intentional disregard or conscious indifference we must look to the knowledge and acts of the defendant.” Id. at 38–39. In determining if the defendant’s factual assertions are controverted, the court looks to all the evidence in the record. The evidence in this record consists of the State’s motion and affidavits, including those of Defendant’s Counsel, Barbara Stroud and Lance D. Sharp, Ms. Evans’ response to the motion and affidavits, and Ms. Evans’ evidence (oral testimony and exhibits) introduced at the hearing.

The State’s motion and the affidavits of Ms. Stroud and Mr. Sharp state facts that negate the possibility that the State’s failure to appear was intentional or the result of conscious indifference. Ms. Stroud’s predecessor simply misdated the trial date on his calendar and conveyed the wrong information to Ms. Stroud when she replaced him. Ms. Stroud believed the case was set for a later date, thus, her failure to appear was not intentional, but was due to an accident or mistake. Ms. Stroud’s affidavit states that she did not become aware of the actual trial setting until after the default judgment. Ms. Stroud then checked with Mr. Sharp’s former secretary, Connie Hughes, who showed her Mr. Sharp’s reading files which included the letter from Mr. Sharp to Ms. Evans setting the trial date for April 22, 1991. The State’s motion and supporting affidavits clearly satisfy the requirements of Craddock, if uncontroverted.

Ms. Evans’ response to the motion for new trial alleges that the State failed to negate that three employees of the State Employees Workers’ Compensation Division and the secretary to the attorney for the defendant had knowledge of the trial setting. In addition, Ms. Evans’ response states that in Ms. Stroud’s affidavit Ms. Stroud states that she “reviewed the files maintained by Mr. Sharp [former attorney for the defendant] ‘and found a February 28, 1991 letter from Sharp’ that ‘stated that trial was scheduled for April 22, 1991.’ ” Ms. Evans further alleged that the State “failed to establish that its failure to appear at the trial on the merits, at its request, was not intentional and was not the result of conscious indifference.” Ms. Evans’ supporting affidavit by Tom Ragland, her attorney, does not controvert any facts related to conscious indifference or delay.

At the hearing, the State presented its arguments to the judge and the affidavits submitted with the motion for new trial were brought to the attention of the trial court. Ms. Evans’ attorney, Mr. Ragland, presented oral testimony and exhibits establishing the trial date setting and the letters sent to Mr. Sharp and other State employees regarding the case.

Although Ms. Evans argues that employees of the State, including Mr. Sharp and Ms. Stroud’s secretary, knew about the trial setting, Ms. Evans does not specifically controvert the statement of Ms. Stroud’s belief that the case was set for a later date. See Estate of Pollack, 858 S.W.2d at 391.

*270 Meritorious Defense

Setting up a meritorious defense is determined based on the facts alleged in the movant’s motion and supporting affidavits, regardless of whether those facts are controverted. See e.g., Estate of Pollack, 858 S.W.2d at 392.

The State alleges that Ms. Evans was injured in an automobile accident following her alleged job-related injury and that this accident, and not the job-related injury, was the cause of her damages. The facts, if true, would establish a sole cause defense. The State also alleges the defense of a credit or offset.

Delay or Injury

The third requirement of Id.

In its motion for new trial, in supporting affidavits, and at the hearing, the State offered to go to trial immediately and to reimburse Ms. Evans for the expenses incurred in obtaining the default judgment.3 Ms. Evans’ attorney testified that granting the motion for new trial would provide a financial hardship to Ms. Evans because the State has not paid her weekly benefits, or her medical bills, nor offered to provide her medical care. Mr. Ragland further testified that he had upcoming trials that might conflict with a new trial setting. The purpose of this element of the Id. Thus, Ms. Evans’ allegations fail to show an injury that would negate the State’s showing of no undue delay or injury.

In summary, the State’s motion for new trial and uncontroverted attached affidavits satisfy the Craddock test. Thus, the trial court’s denial of the State’s motion for new trial was an abuse of discretion. Accordingly, *271 we reverse the judgment of the court of appeals and remand for trial.



Due to our disposition of this case, it is not necessary to address the issue of whether a party taking a post-answer default judgment against the State must give ten days notice of an intent to take such a judgment pursuant to section 39.001 of the Texas Civil Practice and Remedies Code (1993).


For examples of cases in which intentional disregard or conscious indifference was not found and a new trial was granted, see Reynolds v. Looney, 389 S.W.2d 100 (Tex.Civ.App.—Eastland 1965, writ ref’d n.r.e.) (the citation was mislaid in insurance company’s office).


The willingness of a party to go to trial immediately and pay the expenses of the default judgment are important factors for the court to look to in determining whether it should grant a new trial. They are not dispositive of whether the motion should be granted. See Angelo, 713 S.W.2d at 98 (noting that courts look more favorably upon defendants ready, willing and able to go to trial almost immediately).

End of Document