Texas Judiciary Online - HTML Opinion

Regarding=20 the third prongCinjury or=20 delayCthe=20 plaintiff showed no harm attributable to delay other than having = to repeat=20 his testimony and not having the case finalized. These = reasons=20 typically do not qualify as an injury that would defeat a valid=20 Craddock motion. See Dir., State Employees=20 Workers=3D = Comp.=20 Div. v. Evans, 889=20 S.W.2d 266, 270 (Tex. 1994) (stating that the purpose of the third = prong=20 of the Craddock test is to protect a plaintiff against the = sort of=20 undue delay or injury, such as the loss of witnesses or other = valuable=20 evidence, that would disadvantage the plaintiff in presenting the = merits=20 of his case at a new trial). This prong of Craddock = requires=20 inquiry into whether the substance of the = plaintiff=3Ds case has=20 been injured by the delay, and not whether the plaintiff will be = required=20 to do something he would have had to doCtestify at=20 trialCeven in=20 the absence of default. See id.; see also Jackson v. = Mares,=20 802 S.W.2d 48, 52B53 (Tex.=20 App.CCorpus=20 Christi 1990, writ denied). Here, Lara neither alleged nor = proved=20 any threat to his ability to present his case again at a new = trial.=20 See Jackson, 802 S.W.2d at 52B53;=20 Mosharaf, 794 S.W.2d at 586. Furthermore, Lara failed = to=20 present any competent medical evidence in support of his claim = that=20 repeating his testimony at a new trial would cause him injury. = See=20 Mosharaf, 794 S.W.2d at 586. Moreover, the record does = not=20 reflect any special circumstances which would impose any hardship = upon=20 Lara if Hornell=3Ds motion=20 for new trial were granted. See Dallas Heating Co. v. = Pardee, 561=20 S.W.2d 16, 22 (Tex. Civ. App.CDallas=20 1977, writ ref=3Dd=20 n.r.e.).

For these=20 reasons, I would vacate the judgment and remand the case to the = trial=20 court.

/s/ =20 Wanda McKee Fowler

Justice

Judgment=20 rendered and Majority and Dissenting Opinions filed February 5,=20 2008.

Panel=20 consists of Justices Yates, Fowler, and Guzman (Yates, J.=20 majority).

^{^[1]} The defendant=3Ds procedure was no different from = several other=20 companies whose motions for new trial were upheld on the basis of = mistake=20 without any mention of the procedures they had instituted for = forwarding=20 process. See Triad Contractors, = Inc. v.=20 Kelly, 809=20 S.W.2d 683, 684, 686 (Tex. App.CBeaumont 1991, writ = denied)=20 (process papers received and forwarded by registered agent for = service of=20 process to a second party, who then forwarded the same to a third = party=20 who lost them; accident prong of Craddock test held = satisfied);=20 State Farm Life Ins. Co. v. Mosharaf, 794 S.W.2d 578, = 580B81, 584 (Tex.=20 App.CHouston [1st Dist.] = 1990,=20 writ denied) (process papers lost by the fourth party after having = been=20 received and forwarded by the defendant=3Ds registered agent = for=20 service of process to two other parties; accident prong of = Craddock=20 test held satisfied); see also Fid. & Guar. Ins. Co. v. = Drewery=20 Constr. Co., 186 S.W.3d 571, 574B76 (Tex. 2006) (per = curiam)=20 (process papers received by registered agent for service of = process and=20 lost before being forwarded to general counsel; accident prong of=20 Craddock test held satisfied); Strackbein v. = Prewitt, 671=20 S.W.2d 37, 39 (Tex. 1984) (defendant served with process, but = papers not=20 forwarded to defendant=3Ds counsel due to = mistake made=20 by defendant=3Ds secretary; = accident prong=20 of Craddock test held satisfied); Craddock v. Sunshine = Bus=20 Lines, 134 Tex. 388, 133 S.W.2d 124, 124B26 (1939) (process = papers=20 received and forwarded by defendant=3Ds agent to a second = party,=20 who then forwarded the same to the defendant=3Ds insurer, where = they were=20 misplaced; Court held that the defendant=3Ds Afailure to answer = was on=20 account of a mistake and was not intentional@).

^{^[2]} During the settlement = negotiations, Hornell=20 requested to inspect the bottle at issue, and apparently Lara = denied that=20 request. At the motion for new trial hearing, = Hornell=3Ds counsel indicated that she would be = ready to=20 proceed to trial as soon as Hornell received the bottle from Lara = and=20 completed testing on=20 it.