Ayele v. Jani-King, 01-16-00007-CV (TexApp Dist 02/28/2017)
Appellant Meseret Ayele, who had a franchise agreement to operate a Jani-King cleaning franchise, sued Jani-King for breach of contract. Jani-King moved for summary judgment, with a hearing set for Sept. 7, 2015. Appellant moved for a continuance, seeking more time for discovery and because appellant's counsel had filed a vacation letter notifying the court he would be on vacation the week of Sept. 7-11. On Sept. 10, the court granted a continuance, placing the matter on its submission docket for Oct. 5, and when that date passed with no response from counsel, the trial court granted default summary judgment on Oct. 13. When counsel learned of the decision on Nov. 2, appellant moved to vacate the judgment and for a new trial. The trial court denied the motion, and an appeal followed on grounds of abuse of discretion. The court found that when a party opposing summary judgment does not receive notice of submission date, a trial court should set aside a default judgment under
Craddock v. Sunshine Bus Lines, Inc.
(133 S.W.2d 124) if the lack of response is not due to indifference or an intentional act. The court also found that neither the trial court nor Jani-King could show that it notified counsel of the submission date, and therefore
applies. The court rejected Jani-King's argument that counsel's failure to monitor the proceedings amounted to conscious indifference. The court found that conscious indifference is more than negligence, and that counsel only needs an uncontroverted excuse, such as it had in this case, to negate conscious indifference. The court reversed and remanded the case.
Ayele v. Jani-King, Houston 1st Court of Appeals, Case No. 01-16-00007-CV, 2/28/17.
|March 20, 2017
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