NUMBER 13-09-00198-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ROBERT SUTHERLAND, JESUS DE LA GARZA, AND

SOUTHERN CUSTOMS PAINT AND BODY, Appellants,

v.

ROBERT KEITH SPENCER, Appellee.

 

On appeal from the County Court at Law No. 4

of Nueces County, Texas.

 

MEMORANDUM OPINION ON REMAND1

 

1

The procedural and factual histories of this case were set forth in our first opinion, as well as by 

the Texas Supreme Court, and we incorporate those histories herein. See Sutherland v. Spencer, No. 

13-09-00198-CV, 2010 WL 3180365, at **1–6 (Tex. App.—Corpus Christi, Aug. 12, 2010) (mem. op.), 

rev’d, Sutherland v. Spencer, No. 10-0750, 2012 WL 2476809 (Tex. June 29, 2012). Because this case is 

on remand and the parties are familiar with the factual and procedural histories of this case, we will not 

repeat them here except as necessary to advise the parties of the Court’s decision and the basic reasons 

for it. See TEX. R. APP. P. 47.1, 47.4.
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Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion on Remand by Justice Benavides

This case involves an appeal from a default judgment and is before us for the 

second time. See Sutherland v. Spencer, No. 13-09-00198-CV, 2010 WL 3180365, at 

**1–6 (Tex. App.—Corpus Christi, Aug. 12, 2010) (mem. op.), rev’d, Sutherland v. 

Spencer, No. 10-0750, 2012 WL 2476809 (Tex. June 29, 2012). 

In our previous opinion, we concluded that the trial court did not abuse its 

discretion in denying appellants Robert Sutherland, Jesus De La Garza, and Southern 

Customs Paint and Body’s motion for new trial because the appellants failed to satisfy 

the first factor of the three-part Craddock test to set aside a default judgment. See 

Sutherland, 2010 WL 3180365 at *6 (citing Craddock v. Sunshine Bus Lines, Inc., 134 

Tex. 388, 392, 133 S.W.2d 124, 126 (1939)). The Texas Supreme Court reversed our 

judgment “[b]ecause [appellants] asserted facts that, if true, negate intentional or 

consciously indifferent conduct,” and remanded the case for our consideration of the 

remaining Craddock factors. Sutherland, 2012 WL 2476809, at *1. We reverse and 

remand.

I. CRADDOCK TEST

Appellants assert in their sole issue that the trial court erred by not granting their 

motion for new trial to set aside a default judgment. 

 

Furthermore, we note that the style of our previous case reflected the parties as they were originally 

named in the trial court, including “Jesse Garza.” The Texas Supreme Court corrected the style of the 

case to reflect “Jesus De La Garza” as the legal name of one of the appellants and not “Jesse Garza” as 

initially pled. See Sutherland, 2012 WL 2476809 *1 n. 1. Accordingly, we will follow the Texas Supreme 

Court’s guidance and change our opinion’s case style to reflect De La Garza’s legal name. 
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A. Applicable Law and Standard of Review

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.

Dir., State Employees’ Workers Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) 

(citing Craddock, 133 S.W.2d at 126).

Whether to grant or deny a motion for new trial is within the trial court’s discretion, 

and the trial court’s ruling will not be disturbed on appeal absent a showing that the trial 

court abused its discretion. See Evans, 889 S.W.2d at 268. A trial court abuses its 

discretion by not granting a new trial when all three factors of Craddock are met. Id.

(citing Bank One, Tex. N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992)); see In re A.P.P., 

74 S.W.3d 570, 573 (Tex. App.—Corpus Christi 2002, no pet.). 

B. Discussion

In light of the Texas Supreme Court’s holding that the appellants in this case 

satisfied the first factor of Craddock, see Sutherland, 2012 WL 2476809, at *1, we 

address the remaining two factors. 

1. Meritorious Defense

Craddock’s second factor requires that the appellants set up a meritorious 
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defense in their motion for new trial. See Craddock, 133 S.W.2d at 126. Generally, 

the defaulting defendant must allege facts which in law would constitute a defense to the 

cause of action asserted by the underlying plaintiff, and must be supported by affidavits 

or other evidence proving prima facie that the defendant has such a meritorious defense. 

Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). 

Spencer alleged various Deceptive Trade Practices Act (DTPA) causes of action 

against appellants, which included: (1) “laundry list” violations,2see TEX. BUS. & COMM.

CODE ANN. §§ 17.46(b); 17.50(a)(1) (West 2011); (2) breach of warranty,3see id. § 

17.50(a)(2) (West 2011); and (3) unconscionable conduct,4see id. § 17.50(a)(3) (West 

2011); Spencer contended that these DTPA infractions were the producing cause of his 

damages.

Here, the appellants supported their motion for new trial with separate affidavits 

from De La Garza and Sutherland. De La Garza and Sutherland make virtually 

identical contentions in their respective affidavits. In part, the affidavits assert that 

 

2

These alleged violations included: 

(1) representing that goods or services are of a particular standard, quality, or 

grade, or that goods are of a particular style or model, and they are not; 

(2) knowingly making false or misleading statements of fact about the need for 

parts, replacement, or repair service; and 

(3) falsely representing that work or services had been performed on or parts 

replaced in goods. 

3

Spencer alleged that the appellants breached an express and implied warranty of fitness for a 

particular purpose because Spencer’s vehicle will never be restored to the level it would have been had it 

not been for the appellants’ work.

4

Spencer alleged that the appellants engaged in unconscionable action which took advantage of 

Spencer’s lack of knowledge, ability, experience, or capacity to a grossly unfair degree—that is, in the field 

of automobiles. 
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appellants and Spencer agreed to make modifications to the original service agreement 

because Spencer wanted a replacement engine for his Corvette. Further, appellants 

state that when Spencer picked up his car from the appellants’ shop, “he had no 

complaints about the work we performed.” Appellants’ affidavit also states that Spencer 

declined to repaint the vehicle—even after the appellants offered to correct color 

inconsistencies on the Corvette’s paint job—because Spencer was satisfied with the 

paint. The affidavits also acknowledge that Spencer returned to their shop to recover 

pieces from his car which were missing. Appellants admit to returning some of the 

missing items in their possession, but those items do not include all the items Spencer 

alleged to be missing. The affidavits further state that the work performed on Spencer’s 

vehicle was not shoddy, no misrepresentations were made, and that they did not breach 

any duties owed to Spencer. 

We conclude that the appellants’ affidavits, if true, set up meritorious defenses in 

law which would negate all, or some, of Spencer’s DTPA causes of action—that is, (1) no 

“laundry list” violations occurred; (2) no breach of express or implied warranty took place; 

and (3) the appellants’ actions were not unconscionable. See id. § 17.50(a) (requiring a 

DTPA consumer to prove that the alleged violations were the producing cause of his 

economic damages or damages for mental anguish). 

2. Delay or Injury

The third factor under Craddock requires that the motion for new trial be filed 

when the granting thereof will occasion no delay or otherwise work an injury to the 

plaintiff. Evans, 889 S.W.2d at 270. Once a defaulted defendant has alleged that 
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granting a new trial will not injure the plaintiff, the burden of going forward with proof of 

injury shifts to the plaintiff, for these matters are “peculiarly within the plaintiff’s 

knowledge.” Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); see Evans, 889 

S.W.2d at 270. 

Two considerations courts examine when analyzing the final Craddock factor are: 

(1) whether the defendants have offered to reimburse the plaintiff for the costs involved 

in obtaining their default judgment to avoid further injury to the plaintiff; and (2) whether 

the defaulted defendants are ready, willing, and able to go to trial immediately. See 

Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 98 (Tex. 1986); In re A.P.P., 74 

S.W.3d at 575. However, the foregoing considerations, while relevant, are not 

dispositive as to whether a court should grant a new trial. See Angelo, 713 S.W.2d at 

96. Instead, we must “deal with the facts on a case-by-case basis in order to do equity” 

because “[t]he goal to be achieved is to not unduly delay or injure the plaintiff by granting 

the motion.” Evans, 889 S.W.2d at 270; Angelo, 713 S.W.2d at 96.

Here, each appellant’s respective affidavit states that he is ready and willing to go 

to trial immediately. Additionally, we note the appellants’ willingness to compensate 

Spencer for reasonable costs and attorney’s fees incurred while obtaining the default 

judgment. The amount of expenses—which appellants are admittedly willing to pay—is

within Spencer’s exclusive knowledge and should be brought to the trial court’s attention 

for redress. See Angelo, 713 S.W.2d at 98. After appellants made these assertions in 

their motion for new trial, the burden then shifted to Spencer to prove that going forward 

would create injury or undue delay. See Cliff, 724 S.W.2d at 779. Spencer, however, 
7

failed to offer any evidence to show injury or undue delay that he would experience as a 

result of granting a new trial. Therefore, the final factor of Craddock is met. 

In summary, we conclude that the trial court abused its discretion by denying 

appellants’ motion for new trial because all three Craddock factors have been met. 

Accordingly, the appellants’ sole issue on appeal is sustained.

II. CONCLUSION

We reverse the trial court’s denial of the appellants’ motion for new trial and 

remand for a new trial on the merits. Additionally, we remand to the trial court to 

conduct a proceeding consistent with this opinion to determine what, if any, reasonable 

costs and attorney’s fees are due to Spencer for obtaining the default judgment against 

appellants.

__________________________

GINA M. BENAVIDES,

Justice

Delivered and filed the

30th day of August, 2012.