Banco Popular North America v. American Fund US Investments LP

In three issues, Banco Popular North America appeals the trial court's denial of its

motion for new trial. We affirm.

American Fund US Investments, LP, filed an application for a post-judgment writ of

garnishment. In the application, AF stated it had a final, unsatisfied judgment against Wildcat

Mockingbird, LLC and Concepts America, Inc., jointly and severally, for $918,582.93 in

damages, $15,270.80 in attorney's fees, and $268 in costs. AF named JP Morgan Chase Bank

and Banco Popular as garnishees because AF believed, based on representations Wildcat and

Concepts made previously to AF, that Wildcat and Concepts had one or more bank accounts with

JPMorgan and/or Banco Popular.

Banco Popular filed a verified original answer in which it stated:

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As of the date of its answer, Garnishee is indebted to Concepts America Inc. in

the amount of $918,582.93 in account number 6804615562 which is a Concepts

America payroll account. . . Other than the indebtedness for Concepts America

identified above, Banco Popular was not in the possession of any effects or any

other indebtedness belonging to Concepts America or Wildcat Mockingbird LLC.

at the time the writ was served or as of the date of this answer. . .

Attached to the verified answer was the affidavit of Poula Hatzi, stating she was duly authorized

to provide the verification on behalf of Banco Popular and swearing that "the facts and

statements are true and correct to the best of her knowledge.” Thereafter, Banco Popular and AF

signed an agreed final judgment that the trial court granted December 12, 2013. AF's claims

against JPMorgan Chase were dismissed.

That same day, Banco Popular filed a motion for new trial in which it alleged it

"incorrectly stated that it was indebted to Concepts America Inc.” The bank claimed it meant to

state that a hold of $918,582.93 had been placed on the payroll account and that the account, in

fact, had a zero balance. Banco Popular argued the trial court should set aside the agreed

judgment under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939),

because the "entry of judgment was based on a fundamental misunderstanding and was a mistake

and accident.” The trial court denied the motion for new trial.

In its first issue, Banco Popular claims the trial court erred by failing to specify in the

order its reasons for denying the motion for new trial. In support of its complaint, Banco Popular

cites Texas Rule of Civil Procedure 326 and the supreme court's opinion in In re Toyota Motor

Sales, U.S.A., Inc., 407 S.W.3d 746, 756 (Tex. 2013) (orig. proceeding).

Rule 326 provides, "Not more than two new trials shall be granted either party in the

same cause because of insufficiency or weight of the evidence.” TEX. R. CIV. P. 326. This rule

makes no mention of the form or substance for an order denying a motion for new trial and has

no bearing on the facts of this case.

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The opinion in In re Toyota addressed the requirements for an order granting a motion for

new trial. In that case, the supreme court stated, "[A] trial court does not abuse its discretion so

long as its stated reason for granting a new trial (1) is a reason for which a new trial is legally

appropriate (such as a well-defined legal standard or a defect that probably resulted in an

improper verdict); and (2) is specific enough to indicate that the trial court did not simply parrot

a pro forma template, but rather derived the articulated reasons from the particular facts and

circumstances of the case at hand.” In re Toyota Motor Sales, 407 S.W.3d at 756−57 (emphasis

added). Nothing in the opinion or the case law cited requires a trial court to state its reasons for

denying a motion for new trial. See id.; see also In re United Scaffolding, Inc., 377 S.W.3d 685,

689 (Tex. 2012) (orig. proceeding). Because the trial court's order denied Banco Popular's

motion for new trial, it was not required to give any reason for doing so. We overrule Banco

Popular's first issue.

In its second issue, Banco Popular claims the trial court abused its discretion by denying

its motion for new trial because its original answer and the judgment were based on an accident

or mistake. In its motion for new trial, the bank's affiant testified she apparently misread the

affidavit and meant to say there were no funds in the account. In light of this, Banco Popular

argues the "good cause” standard of Craddock should have been applied and the agreed

judgment set aside.

In Craddock, the defendant bus company received citation of the lawsuit but "in some

unexplained manner, the letter transmitting the citation became mixed with the general, or less

important mail . . . and was not discovered until September 10, the day upon which the default

judgment was rendered.” When discovered, the citation was taken immediately to the attorneys

for the insurance company who was obligated to defend the bus company and, the following day,

a motion for new trial was filed. Id. at 125. The trial court denied the motion for new trial, and

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the court of appeals reversed. On further appeal, the supreme court addressed the trial judges'

desire to have a principle or rule to guide them when considering motions for new trials in cases

in which a default judgment had been granted. Id. at 126. Specifically, the court held: "A

default judgment should be set aside and a new trial ordered in any case in which 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; provided the motion for a new

trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion

no delay or otherwise work an injury to the plaintiff.” Id.

In contrast to the facts in Craddock, however, Banco Popular filed a verified answer and

signed an agreed judgment. Because the Craddock rule applies to default judgments "in which

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,” we cannot conclude

Craddock applies to the facts of this case. The trial court did not err by denying Banco Popular's

motion for new trial on this basis. See Craddock, 133 S.W.2d at 126. We overrule Banco

Popular's second issue.

In its final issue, Banco Popular contends the trial court erred by not having a hearing "to

determine the Absolute Obligation Owed” before entering the agreed judgment. Banco Popular

cites us to no law, and we have found none, that requires a trial court to hold an evidentiary

hearing before entering an agreed judgment.

A valid agreed judgment cannot be rendered by a court when consent by one of the

parties is lacking. See Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951). Consent must

exist at the very moment the court undertakes to make the agreement the judgment of the court,

and a trial court should not enter an agreed judgment if it possesses information that would

reasonably prompt further inquiry, and such inquiry, if pursued, would disclose a lack of consent.

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Id. When consent has either been withdrawn or is lacking at the time the agreed judgment is

rendered, the judgment is void. See Samples Exterminators v. Samples, 640 S.W.2d 873, 875

(Tex. 1982).

In this case, the record reflects AF stated, in its application for writ of garnishment, that

Wildcat Mockingbird, LLC and Concepts America, Inc., jointly and severally, owed AF

$918,582.93 in damages. In its verified answer, Banco Popular did not dispute this amount and

signed an agreed judgment in the amount of $918,582.93. Furthermore, Banco Popular did not

withdraw its consent to the agreed judgment before the judgment was entered. Nothing in the

record indicates the trial court possessed information that would reasonably prompt further

inquiry that could reveal a lack of consent. Under these circumstances, we cannot conclude the

trial court erred. See Arriaga v. Cavazos, 880 S.W.2d 830, 833 (Tex. App.―San Antonio 1994,

no writ) (stating party has right to revoke consent to settlement agreement any time before

rendition of judgment, but not after rendition); see also W. L. Moody & Co., Bankers v.

Yarbrough, 510 S.W.2d 396, 398−99 (Tex. Civ. App.―Houston [1st Dist.] 1974, writ ref'd

n.r.e.) (court, acting in ministerial capacity, is empowered to enter agreed judgment without

regard to pleadings and proof). We overrule Banco Popular's third issue.

We affirm the trial court’s judgment.