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Young v. Kirsch - 814 S.W.2d 77 (Tex. App. 1991)

Rule:

A default judgment should be set aside and a new trial ordered in any case in which 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; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Facts:

Plaintiff Raymond R. Kirsch filed a personal injury action in Texas state curt against defendant James B. Young following an automobile accident in which Young's car rear-ended Kirsch's car. Kirsch sought to recover damages for injuries he sustained in the collision. Upon being served with the lawsuit, Young forwarded the papers to his insurance carrier. No answer was filed and a default judgment was entered against Young. Thereafter, Young filed a motion for new trial, along with affidavits which set forth facts allegedly entitling him to a new trial. After a hearing, the trial court denied the motion and entered judgment for Kirsch in the amount of $ 350,000. Young appealed, contending the trial court erred in denying his motion for new trial, that evidence was insufficient to support default judgment, and that Kirsch's petition was defective.

Issue:

Was there sufficient evidence to support the default judgment in favor of Kirsch?

Answer:

Yes.

Conclusion:

The court first ruled that the trial judge did not abuse his discretion in denying the motion for new trial in light of the facts that: (1) Kirsch, through his attorney, made numerous phone calls to Young reminding him of his responsibility to take some action in the lawsuit; (2) Young testified that he had some prior familiarity with the legal system, and; (3) the length of time that lapsed before the default judgment was finally entered. Young's conduct and failure to file an answer in the lawsuit amounted to conscious indifference, and thus he was properly denied a new trial. The court further ruled that that evidence was sufficient to support the default judgment and that Kirsch's petition was not defective.

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