Holt Atherton Industries, Inc. v. Heine

In Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 35 Tex. Sup. Ct. J. 881 (Tex. 1992), the Court held that Holt Atherton's uncontroverted affidavit that it did not file an answer because it did not possibly think it could be held liable was insufficient to negate a finding of conscious indifference. 835 S.W.2d at 83. The Court concluded that the trial court did not abuse its discretion in denying the motion to set aside the default judgment because the court could have concluded, based on the evidence before it, that Holt Atherton's failure to answer was intentional or due to conscious indifference. Id. The trial court rendered a default judgment against the defendant after it failed to appear and answer. The judgment included an award for lost profits, based upon the plaintiff's affirmative answer to a single question concerning the existence and amount of those damages. The Court reversed, holding that the plaintiff's simple assertion of damages was not sufficient evidence to support recovery.