Opinion
No. 05-03-01176-CV
Opinion issued September 21, 2004.
On Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-789-02.
Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and WHITTINGTON.
MEMORANDUM OPINION
Constance Carter appeals a post-answer default judgment. In eight points of error, she contends the trial judge erred in denying her motion for new trial, making certain factual findings in the judgment, and granting excessive damages. We affirm. Pamela Maxie rented property from Carter. When Carter refused to return her security deposit, Maxie filed suit seeking the return of her security deposit pursuant to the terms of their rental agreement.
Although the case was set for trial on March 17, 2004, Carter appeared and requested a continuance in order to obtain counsel. The trial judge granted the continuance and reset the case for May 12, 2004. Neither Carter nor her counsel appeared for trial that day. After Maxie's presentation of evidence in support of her claims, the judge granted judgment in favor of Maxie.
In points five, six, and seven, Carter claims the trial judge abused his discretion in denying her motion for new trial. The requirements for setting aside a post-answer default judgment are the same as those applied in a no-answer default judgment. See Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).
Under Craddock, the judge should set aside a default judgment and grant a new trial if (i) the failure of the defendant to appear before judgment was due to a mistake or an accident and was not intentional or the result of conscious indifference and (ii) the motion for a new trial sets up a meritorious defense and is filed at a time when its granting will not cause delay or injury to the plaintiff. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939). "In reviewing the trial court's ruling on the motion for new trial, we leave the question whether the defendant has satisfied the Craddock test to the trial court's discretion, and we will not disturb the court's ruling unless the court abuses its discretion." Wiseman v. Levinthal 821 S.W.2d 439, 441 (Tex.App.-Houston [1st Dist.] 1991, no writ). In this case, Carter filed a verified "motion to set aside judgment or motion for new trial," but did not attach any affidavits to the motion. Although the motion states Carter's failure to appear "was not a result of negligence, conscious indifference or deliberate," and that Carter will "pay all cost and fees in connection with the granting of a new trial or setting aside of the judgment," the motion fails to assert a meritorious defense. At the hearing on the motion for new trial, Carter testified only as to the cause of her failure to appear for trial on May 12, 2004. This testimony provided no information regarding a meritorious defense to Maxie's claim. Because Carter did not set forth a meritorious defense, she was not entitled to a new trial under the Craddock guidelines. Thus, the trial judge did not abuse his discretion in denying her motion. We overrule points five, six, and seven. In her remaining points, Carter challenges the damages award and the trial judge's factual findings. Under these issues, Carter does not provide record cites, legal authority, or substantive analysis for this Court. Texas Rule of Appellate Procedure 38 provides that a brief to this Court shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex.R.App.P. 38.1(f),(h). Failure to cite any authority constitutes a waiver of the alleged error. Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499, 503 (Tex.App.-Dallas, no pet.). Because Carter does not provide us with cites to the record, legal authorities, or substantive analysis, we conclude she has failed to preserve these arguments for review.
Accordingly, we overrule points one, two, three, four, and eight.
We affirm the trial court's judgment.