Desk Drawer Default

Duffy McKenzie sued Christopher Utz and several of Utz’s companies, seeking to recover unpaid wages. The defendants did not answer, and McKenzie obtained a default judgment against them for approximately $34,000. Thirty days later, the defendants filed a motion for new trial, seeking to set aside the judgment under the familiar Craddock standards. McKenzie opposed the motion, eliciting testimony at the hearing that Utz had simply put the lawsuit in his drawer because did not want to deal with it. The trial court denied the motion for new trial, and the court of appeals affirmed. Although the court noted the defendants’ evidence that they had not answered because they thought the parties were trying to settle the lawsuit, the conflict between that evidence and the testimony during the hearing was sufficient basis for the trial court to have found that the failure to appear was intentional or the result of conscious indifference. When the evidence conflicts, the court held, the trial court was not required to accept the movant’s version of events. The court of appeals also ruled against the defendants on a motion for sanctions, holding that various alleged misstatements in McKenzie’s appellate brief were insufficient to support any sanctions.

Utz v. McKenzie, No. 05-11-01647-CV