Big D Transmission & Auto Service, Inc. v. Kary Lynn RollinsAppeal from County Court at Law No. 4 of Dallas County (Memorandum Opinion )

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State: Texas

Court: Texas Northern District Court

Docket No: 05-11-01019-CV

Case Date: 06/13/2013

Plaintiff: Big D Transmission & Auto Service, Inc.

Defendant: Kary Lynn RollinsAppeal from County Court at Law No. 4 of Dallas County (Memorandum Opinion )

Preview:AFFIRM; Opinion Filed June 13, 2013.

Court of Appeals Fifth District of Texas at Dallas
No. 05-11-01019-CV BIG D TRANSMISSION & AUTO SERVICE, INC., Appellant V. KARY LYNN ROLLINS, Appellee On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-11-00447-D

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In The

MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang Opinion by Justice Moseley Big D Transmission & Auto Service, Inc. appeals from the denial of its motion for new trial following a no-answer default judgment. In three issues, Big D argues the trial court abused its discretion by denying the motion for new trial, the evidence is insufficient to support a claim under the DTPA, and the evidence is insufficient to support the amount of damages awarded by the trial court. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court's judgment.

BACKGROUND
Kary Lynn Rollins sued Big D for violations of the Deceptive Trade Practices-Consumer Protection Act, conversion, fraud, and negligent misrepresentation relating to representations about repairs on her vehicle. After several unsuccessful attempts to serve Big D through its

registered agent, Rollins served her second amended petition on Big D by substituted service on the secretary of state. After Big D failed to file an answer, the trial court heard evidence of Rollins's damages and granted a default judgment. In its motion for new trial, Big D argued its registered agent never received notice of the lawsuit and it met the standards for granting a new trial following a default judgment.

SERVICE OF PROCESS
Big D's first issue asserts the trial court abused its discretion by denying the motion for new trial. A default judgment should be set aside and a new trial granted if (1) the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident, (2) the defendant sets up a meritorious defense, and (3) the motion is filed at such time that granting a new trial would not result in delay or otherwise injure the plaintiff. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). We review a trial court's denial of a motion for new trial for abuse of discretion. Dir., State Emps. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). The defendant's burden as to the first Craddock element is satisfied when the factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff. See Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 576 (Tex. 2006) (per curiam). In determining if the

defendant's factual assertions are controverted, the court looks to all the evidence in the record. See Evans, 889 S.W.2d at 269.

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