*1 not be heard to maintain a The secured-creditors schedule would now Taylors bankruptcy that the filed in the contrary position proof in the absence of proceeding meets these elements because the averment was made inadver- tently or mistake or fraud or it:

duress. (cid:127) prior judicial proceeding; filed in a was (cid:127) po- current was inconsistent with their Significantly, Id. at 295. cited Court sition; distinguished and two cases in which a (cid:127)

party estopped, though was not even there oath; was made under inventory was inconsistent sworn and (cid:127) advantage Taylors, worked an to the suit, appraisement prior filed in a because Bank because it lulled United into not party gained no advantage by prior bankruptcy, taking action within fifing. Id. at 296. when the facts were fresh and the original party, lender was a to deter- prior statement which works lien; mine whether it had a estoppel may be oral or written. Mil (cid:127) inadvertently was not made or because Gann, (Tex. ler v. 842 S.W.2d mistake, fraud, duress; of and 1992). instance, In either it be “de must liberate, clear, (cid:127) unequivocal.” deliberate, clear, and Am. unequivocal. and Musick, Sav. & Loan Ass’n Houston v. Therefore, Taylors estopped are 531 S.W.2d Owen assert that does not have a lien on N.L.I. Knop, (Tex.App.-Cor property.3 their pus Christi And the We reverse the and remand Miller, statement must be sworn. proceedings. this cause for further 641; 641; at Knop, Houston, Plumbing Miles v. Services of (Tex.App.-Houston n.r.e.).

[14th writ ref 'd Dist.] agree ap

We with other courts of

peals that judicial estoppel the elements of (1) sworn, prior

are: inconsistent state (2) judicial ment made proceeding; FREEMAN, Appellant, Mishawndria party making gained the statement (3) it; advantage by some the statement PEVEHOUSE, Appellee. Annie inadvertently was not made or because of mistake, fraud, (4) duress; No. 10-01-114-CV. deliberate, clear, statement un Texas, Appeals equivocal. E.g., Spera Fleming, Hoven Waco. P.C., kamp Grayson, & (Tex.App.-Houston [14th Dist.] no May pet.); In Huff, re Estate (Tex.App.-Texarkana pet.); no (Tex. M.M.O., In re

App.-San pet.); Knop,

853 S.W.2d at 641. disposition,

3. Because of this we do not ad- other issues. dress N.L.I.'s

new trial because she met the three re- for a new trial established quirements the Texas Court. See Craddock Lines, v. Sunshine Bus 134 Tex. (1939). Freeman bears the All- proving burden state’s failure to file the answer intentional or the result of indif- ference, but due to a mistake or accident. Industries, Heine, Holt Atherton P & H *4 Robinson, Transportation, Inc. v. 930 Johnson, Dorsett, Fulbright Keith David (Tex.App.-Houston [1st S.W.2d 861 Waco, Winniford, P.C., & for appellant. denied); Hosp. Dist.] writ Memorial Scanes, Howell, Ñaman, Inc., Michael L. Agency, v. Sys. Fisher Insurance 835 Lee, P.C., Waco, Smith & Keith C. Camer- (Tex.App.-Houston S.W.2d 652 [14th on, Ñaman, Howell, Lee, P.C., writ). Smith & Dist.] Freeman cannot be Austin, appellee. judgment relieved from a default on the ground she turned the over to DAVIS, Before Chief Justice Justice upon Allstate Allstate an and relied to file VANCE, and Justice GRAY. showing why answer Allstate without Hosp. Sys., failed to Memorial answer. LEAD OPINION at 652. S.W.2d GRAY, TOM Justice. challenge Pevehouse does not that Free man, fail to individually, did not was in au- Annie Pevehouse involved an conscious intentionally or with indiffer September tomobile accident on ence, nor offered that Freeman evidence Freeman, an of- Mishawndria insured support and.third the second elements Company. nego- Allstate Insurance After the Craddock test for both Freeman and dispute resolve the one tiations to for over Therefore, scope Allstate. of the issue failed, a in- year personal Pevehouse filed Craddock, prong limited first is to the jury against September suit Freeman on Allstate’s failure to specifically whether 2000. Freeman served on Novem- timely not intentional or the answer was timely ber 2000. Freeman failed to file indifference, result of but 11, 2001, an January answer. On Peve- to a an accident. Crad due mistake or house at a appeared judgment default dock, 133 at 126. S.W.2d evidence, and hearing, offered obtained Applicable Law Freeman judgment. default filed After a hearing motion for new trial. for new trial is ad A motion operation motion of law. was denied discretion, and dressed the trial court’s appeal brought contending Freeman this will not be disturbed on ruling court’s its in de- trial court abused discretion appeal in of an abuse of dis the absence nying new trial. its motion for Huggins, cretion. S.W.2d 778 v. Cliff (Tex.1987); Strackbein Judgment Trial — Default Motion for New The prerequi S.W.2d issue, a motion to set aside a

In sites for only granting her claims ap- judgment equally in trial denying trial erred her motion for court’s default if his affida de- satisfies his burden post-answer and a defendant ply to a no-answer that, true, 779; negate if vit sets forth facts Cliff, 724 at judgment. fault (Tex. con Watson, indifferent intentional Grissom Strackbein, 1986). Craddock, duct the defendant. However, conclusory al at 38-39. guiding principle forth the rule or set Holt Atherton are insufficient. legations which trial courts must follow determin- Heine, Industries, Inc. grant a motion for new ing whether Investments, Folsom trial: Troutz, (Tex.App.-Ft. judgment A should be set aside 'd). ref Worth any and a new trial ordered case which the failure of the defendant if fac the defendant’s To determine inten- answer before was not controverted, tual are the court assertions tional, indiffer- or the result of conscious all the evidence the record. looks to ’ part, due to a ence on his but was Ev Comp. Wrks. accident; provided mistake or ans, trial aup motion for a new sets meritori- presents non-movant When the when ous defense and is filed at a time tending trial to show hearing for new *5 granting thereof will occasion no con intentional or indifferent to the delay injury otherwise work an duct, for the trial question it becomes plaintiff. Kirsch, Young v. 814 determine. 779; Craddock, Cliff, 724 S.W.2d at 133 77, Antonio (Tex.App.-San 80-81 at 126. denied). 1991, pet. v. rehear’g Jackson Mares, 48, (Tex.App.-Cor 802 S.W.2d defaulting The defendant has the denied). pus Christi proving burden of all three elements of the Craddock test are met before a trial court Inferences required grant

is a motion for new trial. Homes, Fuller, Sunrizon Inc. v. of Texas S.W.2d 530 may held that the trier of fact draw has denied). pet. rehear’g A trial court abuses presented, inferences from evidence but by granting its discretion not a new trial only logical reasonable and ones. Ham Edwards, when all three of the Oaks, elements Craddock merly 958 S.W.2d ’ (Tex.1997). test are met. Wkrs. may An fact ultimate (Tex. Evans, Comp. v. 889 S.W.2d by be established circumstantial 1994). reasonably may fairly when the fact be in the case.

inferred from other facts Intent OR Indifference Conscious Inc., Bordens, Blount v. 910 S.W.2d (Tex.1995). may fail But an ultimate fact determining whether the by the of fact if the was due to intentional con not be inferred trier ure only “meager circumstantial duct or conscious indifference we must evidence is any give evidence” which could rise to knowledge look to the and acts of inferences, probable more number of none by defendant as shown all the evidence Oaks, Hammerly in the the court. than another. contained record before Indus. 269; (quoting Litton Id. at Strackbein v. 671 S.W.2d 319, 324 Gammage, If factu v. Prods. (Tex.1984)). evi meager If circumstantial al assertions in the defendant’s affidavits which are rise to inferences by plaintiff, gives are not controverted dence intentional or the result of conscious with two facts and noth equally consistent have my part, indifference on but must prob inference is more ing shows one mistake or accident on the been due to other, fact can be able than the neither part Company.” of Allstate Insurance inferred. Litton Indus. Prods. Gam (Tex.1984); mage, 668 Shivers Emanuel, Sling Texas Co. Sherry stated in her affidavit Shivers Continental Cas. Co. Insurance employed that she is Mexia

Fountain, (Tex.Civ.App.- 257 S.W.2d 338 Mexia, Texas, about in that on or Service ref'd). 1953, writ There must be Dallas 17, 2000, went into November Freeman evi more than a scintilla of circumstantial petition the citation and the office with reasonably infer a fact. dence on which and that Freeman indicated she this case Inc., Bordens, Blount v. papers night had with the been served “[ejvidenee merely is And pa- “we faxed the before. Shivers stated: it weak as to do a scintilla when is so Company pers to Allstate Insurance than create a mere surmise nothing more Austin, 2000 for Texas on November suspicion Jacobs-Cathey of a fact.” Co. was no error in the Ms. Freeman. There (Tex. Cockrum, facsimile transmission.” App.-Waco pet. rehear’g Medellin affidavit Evaristo Medellin stated his in the Evidence Record employed by that he is Allstate Austin Adjuster. This as a Senior Claims Service Freeman stated in her affidavit that she originally claim was received Allstate a citation and on was served with October, began working Medellin on next night of November 2000. The regarding this case on or about the file *6 agent, day Freeman called her insurance spoke with August 2000. Medellin Duncan, with Mexia Insurance Richard Simms, attorney, first on or Pevehouse’s On the afternoon of November Service. September 2000. He further about 17, 2000, to Duncan’s office. Freeman went representative tried states that an Allstate papers the lawsuit Duncan looking After of the insured on November to return calls Austin, in Texas. faxed them to Allstate December but was December and her. He then received a not able to reach repre- Freeman tried to reach Allstate dated December 2000 from letter by phone Hill several times sentative Jeff Scanes, indi- attorney, second Pevehouse’s week, but never could. during following the judg- take a default cating Scanes would the switch- finally through went 20, 2000. Medellin ment on December connected with board and asked to be letter, I the that “when I received states spoke an indi- Hill’s boss. Freeman with informed called Mr. Scanes and was they had the lawsuit vidual who indicated already taken default.” he had it, worry about and papers, she shouldn’t they handling it. Freeman remem- spoke were with Freeman Medellin states he twenty the specifically mentioning from those con- agent, bered and Freeman’s an called day period agent in which to file answer. the had versations he learned pa- not hear about the lawsuit to fax the suit Freeman did Allstate and been told to Me- a default indicated again pers. agent until she was told papers. had faxed the suit against had taken her. Freeman’s dellin that she been statement; find a record not been able to concludes with the Medellin has affidavit re- that Allstate indicating file an answer was or document timely failure to “[t]he in his Scanes ceived the fax. Medellin also states Texas, Allstate, Austin, affidavit that in Septem- that on either testified Scanes contains buildings. Building two One has 21, 2000, and left a he called ber 20 or report to Austin office employees who indicating Medellin message mail for voice Allstate, reports to Building while Two how Pevehouse and represented Scanes an agent Antonio. Freeman’s called San him. believes Medellin could reach Scanes representative Building in One Allstate message mail he Medellin the voice told Two. Medel- Building and Medellin is did not was about to file suit. Scanes he statement; affidavit concludes

lin’s filed suit on receive a return call. Scanes retain “Allstate’s failure to defense 21, 2000 September on on behalf Pevehouse purposes filing counsel for answer citation and behalf was not intentional and Freeman was served with insured’s indifference, but November, again of conscious result 2000. Scanes due to mistake or accident.” 2000 and is called Medellin December message that he had filed sure he left Simms had been filed. suit and that Ricky At testified hearing, Simms ma- answering Scanes testified Sep- accident in that after automobile greeting chine indicated the number dialed retained tember of Pevehouse Simms Medellin, leave a was for the caller should represent attempted her. Simms get back to message, and Medellin would resolve the case with Freeman’s insurance did not receive a return the caller. Scanes carriel’, Company. Allstate Insurance message call to this either. year’s period contact Simms had over adjusters at time with several different that he a letter to testified sent Scanes Allstate. Medellin was the last Allstate December Medellin dated adjuster had contact with whom Simms represent- firm letter stated that Scanes’ both cor- regarding this case. Simms had Pevehouse, had tried ed and that Scanes respondence telephone conversations by tele- unsuccessfully to reach Medellin records, regarding with Medellin medical fur- The letter phone on two occasions. amounts, lim- settlement and the statute of in this that suit was filed ther stated itation in this case. Sep- on against matter Allstate’s insured *7 During concerning one conversation set- 21, copy enclosed a tember 2000. Scanes tlement, if they told Medellin that Simms with the let- petition of the and citation get together could on a settlement not in the letter that ter. also stated Scanes would have to a suit get amount Simms De- date for Freeman was the answer filed because the statute of limitation was 2000, 11, no had cember that about to run. After that conversation filed, now in and that Freeman was been a dat- Simms received letter from Medellin The letter continued that Medel- default. 2000, 6, September offering a ed settle- 20, 2000 to file an lin had until December requesting amount and ment Simms obtain a default answer or Scanes would Allstate of Pevehouse’s decision. advise did judgment against Freeman. Scanes 6, September The letter of 2000 was letter response not a his receive communication with Allstate. Simms’ last from Medellin next three or four weeks a negotiate Because Simms was unable then at Allstate. Scanes anyone or else settlement with Medellin he referred be arranged for in September case to Mike 2000 to Scanes 11, January if on try necessary. file suit and the case taken Analysis Strackbein, In of the affidavits Uncontroverted Facts persons actually accompanied the served The evidence in this record on the precisely trial de motions for new and issue consists of Freeman’s motion for new misplaced. scribed how the citations were Freeman, Shivers, trial from and affidavits Prewitt, Strackbein v. S.W.2d Medellin, testimony and oral from Simms (Tex.1984). However, BancTEXAS, Strackbein, the bur Scanes. Under president pro where the bank’s senior vice den to set forth facts that intention negate support vided an affidavit in of the bank’s consciously al or indifferent conduct be for a new trial of the bank motion instead cause of a mistake or accident is on the president actually who was served with the defendant. Strackbein garnishment, writ of the Dallas Court of 38-39 And while it Appeals did not held BancTEXAS losing misplacing is true that or a citation by competent evidence that its establish or is a valid excuse for a failure to consciously or conduct was intentional answer, competent proof there must be McKinney v. indifferent. BancTEXAS negate the excuse to intentional conduct or Inc., Systems, Desalination indifference. BancTEXAS (Tex.App.-Dallas [5th Dist.] Inc., McKinney Systems, v. Desalination pet.). no Mistake or accident was not (Tex. App-Dallas [5th from proved because there was no affidavit pet.). Dist.] no president anyone the bank else who Craddock held evidence of a actually explaining handled the citation precluded mistake the conclusion the fail- the citation was lost or where how ure to act. answer was intentional oc chain of communication a breakdown One, Moody, Bank Texas v. curred that led to the failure to answer the Craddock v. Bus Sunshine Co., Id.; citation. Nichols v. TMJ Lines, 134 Tex. 125- (Tex.App.-Dallas (1939). Craddock, In the defendant writ) transportation (although problems alleged detailed events that led to the cita- been held to have establish absence getting general tion mixed with mail in- intentional or indifferent con important allega- stead of the mail. The duct, trouble,” allegations mere of “car specific path tions included the the letter specific descrip without facts detailed person person took from within the events, grant tion of was insufficient to company exactly where and how the trial); new Motiograph, motion for prevented filing mistake occurred that (Tex. Matthews, W.D. of a answer. Id. at 124-125. n.r.e.) (as Civ.App.-Dallas writ ref 'd Employees State Workers’ “inadvertently sertion that the citation was (Director), Compensation Division by employee misplaced” after service offered an affidavit from the attor- *8 merely an undisclosed chain summarized ney appear who failed to at trial. The any explan set forth of events and did not specific allega- affidavit factual contained atory support that would vacation of facts attorney’s predecessor that the tions mis- judgment). the default dated the trial date on the calendar and in conveyed wrong testimony put information to the No oral evidence trial. by hearing the trial to Freeman at the for new attorney new who believed date Director, by May April presented of 22. we look to the affidavits be 28 instead So Evans, to de- v. Freeman with her motion order Emp. Comp. State Wkrs.’ (Tex.1994). prove if facts are set forth that termine in the no other con- are statements or indifferent There intentional prong of that concern the first by mistake affidavits negated Allstate was duct BancTEXAS, test. As 671 the Craddock Strackbein v. or accident. anyone no from Freeman offers peti actuady handled the citation who unable Medellin’s affidavit he was states they how were explaining at Allstate tion indicating or to find a record document in the of communica lost or where chain pa- that Allstate received the fax of suit to the occurred that led tion a breakdown affi- pers agent. from Freeman’s Shiver’s BancTEX- to answer citation. fadure states, to All- papers davit “we faxed the Systems, McKinney Desalination AS Austin, Texas Company state Insurance Inc., (Tex.App.-Dallas Freeman. on November 2000 for Ms. pet.). no Dist.] [5th no error in trans- There was the facsimile of the explanation Freeman offers that states mission.” affidavit mistake, a mistaken nature of the not even she called the switchboard at Allstate and anyone that someone belief Adstate asked to be connected to Hill’s boss. She answer, care of or as in taking else spoke with an indicat- then individual who Co., Republic Insurance that to Old they papers, had the she ed lawsuit knowledge” the suit “best of someone’s it, worry they were shouldn’t about lost, misfiled, misplaced, papers were it. affi- handling Shiver’s and Freeman’s Republic Co. misdirected. Old Insurance contradict re- davits Medellin’s affidavit Scott, receipt pa- Allstate’s the suit garding defaulting the bur- defendant bears pers. prove forth ad setting den of facts that There is no evidence other than Medel- of the are three elements Craddock test lin’s uncorroborated that he was statement Fuller, 747 met. Sunrizon Homes unable to find record or document indi- that Allstate cating received the fax suit rehear’g The essential teach- pet. papers. presents Freeman no evidence of each of the cited is that ing cases papers wrong that the suit to a were faxed explain what must under oath defendant number, or even that someone at Allstate fadure to mistake or accident caused the suit papers “believed” the were transmit- timely positive file an answer. Proof wrong ted to number.1 mistake required; or accident is not state- affidavit that All- more than the declarant’s nothing Medellin’s then states buddings that as to what caused the fadure state has two in Austin and ment of bedef competent timely to he file an answer is Budding the fax was sent One when to case, Budding In this Medellin’s affirmative proof. works in Two. Medellin does how or explain affidavit without allegations, his that it was a mistake more state Budding a mistake or accident to send why or accident to send the fax to it was Budding Budding One presents no evidence the fax to instead One. lost, Two, enough be- his eoncluso- papers support the suit were in transfer is not fadure buddings ry even what is be- statement “Adstate’s tween purposes defense counsel for happened papers. to have the suit retain lieved Evans, predecessor the calen- her misdated Wrks’. Com. because *9 266, (Tex.1994) 269 where an conveyed wrong 889 S.W.2d the information dar and attorney she believed stated her affidavit her. April 22 May date to be set not the trial 28 646 filing

of on the insured’s require behalf does not that the defendant’s affi- was not intentional or the result of con- davits be controverted only counter af- indifference, fidavits, scious but was due to mistake ignore any or that the trial court or accident.” Prewitt, other evidence. v. Strackbein 671 37, (Tex.1984); Kirsch, 39 Young S.W.2d allegations

From the factual in Free- 814 S.W.2d 80 man’s it cannot be affidavits said the denied). pet. rehear’g only logical inference would be the insur- company’s ance failure to answer We look to if the trial see

the of result intent or conscious indiffer- judge denying abused his discretion in ence, but was due to mistake or accident. Freeman’s motion for new trial in view of Because the burden to establish the reason time,” “the record him at that which before for the failure to file an answer is on case, in this includes Freeman’s affidavits Freeman, finding and her evidence comes with her motion for trial and new the short, up judgment the is affirmed. testimony of and Simms Scanes. Strack Analysis Controverted Facts Alter- —An (Tex. Prewitt, bein v. 671 S.W.2d Holding native 1984). When evidence is introduced at a Freeman’s evidence falls short of that hearing, the issues the defendant’s affi necessary prima the establish facie case questions davits become fact for the trial necessary under Craddock to reverse a Mares, court to resolve. Jackson judgment default based on the trial court’s (Tex.App.-Corpus Christi grant failure to a new trial. In reaching the fact-finder at a As holding unnecessary this it was to consider trial, hearing on a motion for new the trial evidence offered Pevehouse in an effort duty court has determining the the facts to show Allstate acted with indif- surrounding the judgment, default and it is ference. To facilitate review if a province judge within trial court’s filed, for review if Supreme is and credibility of the witnesses and to de disagrees Court with holding this and de- weight termine the their given be testi sufficient, termines Freeman’s evidence is Jackson, mony. 51; Royal alone, test, taken to meet the Craddock Martinez, Zenith Corp. judicial economy requires an alternative writ). (Tex.App.-Waco analysis. analysis, Under this alternative arguably inferences could be To ap- determine whether the failure to presented drawn from all the evidence in pear was due to intentional conduct or connection with the motion for new trail we must look to the conscious indifference analyzed. must be knowledge and acts of defendant as record before the court. if contained determining the defendant’s factual controverted, Strackbein v. 38- assertions are the court knowledge looks to all The and acts the evidence the record. such evidence Comp. may v. Ev- the defendant relate to Wkrs’. ans, many ways as how times and in what However, conclusory allegations are insuf- defendant was notified of the need to take Industries, action, familiarity ficient. Holt Atherton Inc. v. some the defendant’s Heine, experience system, Fol- legal Investments, Troutz, lapsed som before the length time which (Tex.App.-Ft. finally entered. Worth n.r.e.). (Tex. Kirsch, Young writ refd *10 Baker, presented court the trial was App.-San pet. rehear’g de- Antonio nied). appellant’s actions two of with versions time he received the service between the Director, plaintiffs the af- Unlike where judg- process of and the notice of default any fidavits did controvert facts relat- Kunzman, ment. Baker v. indifference, to conscious Pevehouse ed 1994, pet. re- (Tex.App.-Tyler testimony directly oral that con- presented denied). appellant’s own testi- hear’g from implication troverted Medellin’s infer- mony and did not negate raised that he of a affidavit was unaware need disregard or conscious ence of intentional file an answer. by appellant. indifference Id. ’ Evans, Comp. Wrks. af- in their Shivers and stated papers faxed to fidavits the suit were that During testimony oral at the for hearing was Allstate in Austin and no error trial, new evidence was uncontroverted In her received for the fax transmission. by affidavit, he left two mail given Scanes that voice All- Freeman said she called messages on ma- answering Medellin’s for Hill’s state’s switch board asked messages spoke chine. At least one of these who told boss then someone specific filing they papers, worry, contained information about her had not to of of Medellin they taking and service the suit and the need for an care it. were affidavit he could not find answer to be states his filed. fax. paper receiving Allstate trail of also he sent a Scanes testified letter Baker, As in these two of events versions copy dated December 2000 with a can raise an of inten- be seen to inference the citation and to Medellin. Me- consciously tional or conduct indifferent dellin stated his affidavit that I “[w]hen Allstate. Id. letter, received the I called Mr. Scanes and If argued it could be that a reasonable already informed was that he had taken from inference to be drawn the evidence default.” Scanes testified that he believed available is that fail- to Freeman Allstate’s the letter would have received been Mr. ure to file an answer not due to timely 11, 2001, prior January Medellin indifference, intent or conscious but date of the judgment. accident, mistake then same evi- or dence to Pevehouse could be used available puts This issue that All- to draw a reasonable inference controversy conscious indifference in state indifference acted Young the trial court to determine. failed to file an an- when Allstate Kirsch, case, on behalf. In which swer 1991, pet. denied); rehear’g Jack reason- controverting because there are Mares, (Tex.App. son v. inferences, factu- able the resolution of the denied). A Corpus Christi trial be left to the sound al determination would believe, reasonably court can based on con trial discretion the trial court. The evidence, tradictory there inten fact-finder, as the resolved the acting indifferent conduct on tional against factual Freeman. dispute part of a K-Mart Corp. defendant. can be de Armstrong, (Tex.App. indifference Conscious denied); as failure to some action pet. rehear’g Amarillo Bak fined “the take Kunzman, person indicated to a (Tex.App. er v. which would seem pet. under the same Tyler rehear’g reasonable sensibilities *11 648 Kirsch, Young

similar circumstances.” could have failure concluded Allstate’s 77, 814 (Tex.App.-San S.W.2d 81 Antonio to answer was to conscious due indiffer 1991, denied); Kunzman, pet. rehear’g Sunrizon ence. See Baker v. 873 S.W.2d Homes, Fuller, 1994, 747 (Tex.App.-Tyler S.W.2d writ de nied). basis, (Tex.App.-San I Antonio On this would affirm the In view phone judgment. of the calls made to Medel- lin, the letter written Medellin which Justice, VANCE, BILL copies

included petition, dissenting. of the citation and familiarity of experience Medellin’s Corpus I agree with the Christi Court of legal system the as a Senior Claims Appeals: “The historical trend Adjuster Service compa- for insurance judgment the grant cases is toward liberal ny, and the length lapsed time which Martinez, ing of new trials.” Norton before judgment the default finally entered, the trial court would not have Miller, pet.) (citing no Miller v. abused by denying its a discretion motion (Tex.App.-Tyler no for new trial. When the elements the Crad- writ)). satisfied, dock test are it is an abuse of Therefore, alternative, trial the deny discretion for the trial court to court did not abuse its discretion deny- trial. defendant a new ing Freeman’s motion because it could Evans, Employees Comp. Div. v. Workers’ concluded, have on the based evidence be- (Tex.1994). it, fore that Allstate’s failure to answer was due to indifference. Prewitt, Based on my Strackbein view interpretation

is no reasonable supports finding that Allstate’s Conclusion failure to answer citation was the re- satisfy Because Freeman did not sult of an act or intentional conscious indif- test, first element of the the trial Craddock ference. Strackbein court by denying did not err the motion Citing Strack- point new trial. error is bein, consistently has overruled and of the trial new trials reversed denials of under simi- court is affirmed. Evans, lar circumstances. See 271; Scott, Republic Old Ins. Co. v. D. Chief Justice REX DAVIS One, Bank concurring. Texas, Moody, N.A. v. BILL dissenting.

Justice VANCE I deny would decision to reverse the motion trial and DAVIS, Justice, for a new remand the REX D. Chief cause with instructions that new trial be concurring. granted. I only concur in the “alternative hold-

ing” opinion. set out the lead See Free- Pevehouse,

man v. h.) J.,

(Tex.App.-Waco pet. (Gray, opinion).

lead I that the trial agree

did not abuse in denying its discretion

Freeman’s motion for new trial because it