Opinion
No. 05-10-00943-CV
02-24-2012
4180 BELT LINE, LTD., K&R 4180, INC., LINEWOOD K. WALES, ROBERT SIMON, and DUKE'S BEVERAGE CORP., Appellants v. LONE STAR VALET PARKING SERVICES, INC., Appellee
AFFIRM; Opinion issued February 24, 2012
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-08-10886-E
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
4180 Belt Line Ltd., K&R 4180, Inc., Linewood K. Wales, and Robert Simon (collectively "Belt Line"), together with Duke's Beverage Corporation ("Duke's"), appeal the trial court's judgment, complaining specifically of the trial court's (a) granting summary judgment against Belt Line and (b) overruling all of the appellants' motion for new trial following entry of default judgment. We conclude the dispositive issue before us is clearly settled in law. Accordingly, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. The factual nature of this case, as well as its procedural history, pleadings, and evidence are known to the parties. Therefore, we do not recount these matters in detail. We affirm the trial court's judgment. Appellee Lone Star Valet Parking Services, Inc. ("Lone Star") sued appellants alleging theories of breach of contract (including sworn account) and quantum meruit against Belt Line and fraudulent transfer against Wales, Simon, and Duke's. The trial court granted partial summary judgment on Lone Star's contract and quantum meruit claims against Belt Line, with the requirement that Lone Star elect one of those remedies. The case was set for trial, but neither appellants nor their counsel of record appeared. The trial court declared a post-answer default and proceeded to hear evidence on damages. The court took judicial notice of the partial summary judgment in favor of Lone Star in the amount of $13,163.64, and Lone Star formally elected to receive that amount as an award for breach of contract. Lone Star then offered evidence of $11,200.00 in attorney's fees on the contract claim, and the trial court found that amount reasonable and necessary. Lone Star then offered evidence that Belt Line had transferred essentially all its assets to Duke's close to the time of trial in this lawsuit, and Lone Star asked for three times the contract recovery, or $39,490.92, as damages from Duke's on account of that fraudulent transfer. The trial court signed a judgment (later corrected nunc pro tunc) awarding Lone Star its damages in accord with this evidence. Appellants filed a motion for new trial attempting to set aside the trial court's judgment. The trial court denied the motion.
Counsel of record had filed a motion to withdraw, but the motion had not yet been heard or ruled upon. The reporter's record indicates appellants' appellate counsel was present, but he did not participate in the proceedings in any way.
In this Court, appellants contend their motion for new trial satisfied all requirements for setting aside the default judgment under the so-called Craddock test. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The Craddock test has three elements:
(1) 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 (2) the motion for a new trial sets up a meritorious defense; and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 82-83 (Tex. 1992). We review a trial court's ruling on a motion for new trial for an abuse of discretion. Continental Carbon Co. v. Sea Land Serv., Inc., 27 S.W.3d 184, 187 (Tex. App.-Dallas 2000, pet. denied). If the defendant fails to meet any one of the three requirements for setting aside a default judgment, the trial court does not abuse its discretion in denying a new trial. See id. at 191.
We address the second Craddock requirement because we conclude it is dispositive of this appeal. Appellants' motion was required to set up a meritorious defense. A motion for new trial sets up a meritorious defense "if it alleges facts which in law would constitute a defense to the plaintiff's cause of action and is supported by affidavits or other evidence providing prima facie proof that the defendant has such a defense." Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 928 (Tex. 2009). Appellants were not required to prove their meritorious defense to Lone Star's claims, but they were required to produce some evidence that, if true, would support their meritorious defense. See Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). Appellants submitted no evidence purporting to support any defense: their motion was not verified; no affidavits were attached to the motion; and they did not request a hearing in order to offer testimony or other evidence supporting a defense. Because appellants failed to discharge their burden of showing a meritorious defense, the trial court did not abuse its discretion in overruling the motion for new trial. See id. at 215.
Given our disposition of this issue, we need not address any of appellants' remaining complaints.
KERRY P. FITZGERALD
JUSTICE
100943F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
4180 BELT LINE, LTD., K&R 4180, INC., LINEWOOD K. WALES, ROBERT SIMON, AND DUKE'S BEVERAGE CORP., Appellants
V.
LONE STAR VALET PARKING SERVICES, INC., Appellee
No. 05-10-00943-CV
Appeal from the County Court at Law No. 5 of Dallas County, Texas. (Tr.Ct.No. CC-08- 10886-E).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee LONE STAR VALET PARKING SERVICES, INC. recover its costs of this appeal from appellants 4180 BELT LINE, LTD., K&R 4180, INC., LINEWOOD K. WALES, ROBERT SIMON, and DUKE'S BEVERAGE CORP.
Judgment entered February 24, 2012.
KERRY P. FITZGERALD
JUSTICE