Opinion
No. 05-02-01860-CV.
Opinion Filed May 23, 2003.
Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 2-00104-02.
AFFIRM.
MEMORANDUM OPINION
This is a default judgment case. Appellant brings three issues, asserting that the trial court abused its discretion in denying a motion for new trial; there was no evidence, or insufficient evidence, to support the court's determination of a knowing violation of the Deceptive Trade Practices-Consumer Protection Act; and there was insufficient evidence to support the award of damages. The facts of this case are well known to the parties, and we do not recite them in detail. Because the issues are well settled, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the judgment of the trial court.
Appellee, plaintiff below, sued for breach of contract and a violation of the Deceptive Trade Practices-Consumer Protection Act (DTPA) in connection with the installation of a residential air conditioning unit. See Tex. Bus. Com. Code Ann. § 17.41-17.63 (Vernon 2002) (DTPA). Appellant, defendant below, did not file an answer to the lawsuit. Default judgment was obtained for $21,900.00, attorney's fees of $1,500, and conditional attorney's fees in the event of an appeal. Appellant filed a motion for new trial that was denied by the trial court after a hearing and this appeal ensued.
In his first issue, appellant asserts that the trial court erred when it denied his motion for new trial. The denial of a motion for new trial after default judgment is subject to the abuse of discretion standard of review. Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987). The " Craddock test" is utilized to determine whether a new trial should be granted after a default judgment. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81 (Tex. 1992) (citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939)). The Craddock test examines the following three elements:
1) whether 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 new trial sets up a meritorious defense, and
3) is filed at a time where the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.
Moody, 830 S.W.2d at 82-83. If all three elements of the Craddock test are met, the trial court abuses its discretion by not granting a new trial. Id. at 85.
In this case, the appellant never advanced a reason for his failure to answer. Neither his affidavit in support of the motion for new trial nor his testimony before the trial court ever addressed the issue of his failure to file a written answer. The aforementioned evidence was directed solely to his failure to appear at the damages prove-up hearing. The trial court specifically noted that it considered the three month period of time between service of citation and the prove-up hearing, with no answer ever being filed in the interim, was fatal. Under these circumstances, we conclude the trial court did not abuse its discretion when it denied the motion for new trial. Appellant having failed to establish the first element of the Craddock test, we need not discuss the remaining two elements. We overrule the appellant's first issue.
In appellant's second issue, he argues that there is no evidence, or alternatively, insufficient evidence to support the trial court's determination of a knowing violation of the DTPA. Appellee urges that appellant has waived this point by failing to answer. We agree. At a minimum, a general denial is required to put matters in issue. See, Tex.R.Civ.P. 92; Justice Life Ins. Co. v. Walker, 508 S.W.2d 434, 437 (Tex.Civ.App.-Ft. Worth 1974, writ ref'd n.r.e.); Brill v. Guar. State Bank, 280 S.W. 537 (Tex. Comm'n App. 1926, opinion adopted by Supreme Court). As appellant has waived this issue, there is nothing for this Court to review.
In appellant's next issue he claims there was insufficient evidence to support the award of damages. To reverse an award of damages on insufficiency of the evidence grounds, the Court must find that the evidence supporting the award is so weak as to be clearly wrong and unjust. E.g., Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Town of Flower Mound v. Stafford Estates, L.P., 71 S.W.3d 18, 26 (Tex.App.-Fort Worth 2002, no pet.). In reviewing an insufficiency of the evidence challenge, the court of appeals must first consider, weigh, and examine all of the evidence which supports and that which is contrary to the fact finder's determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989) (per curiam).
In this case, having reviewed the entire record, we conclude that the evidence supporting the damages award was not so weak as to be clearly wrong and unjust. At least twice, appellee testified that his electric bills were $200 a month higher for each month the defective air conditioner was installed. Further, appellee asked for and was awarded only $900 for approximately a week of lost work, when his testimony indicated that his time was worth substantially more than that amount. Finally, the cost to replace the defective air conditioner was substantiated with documentary evidence. Accordingly, we find that there was sufficient evidence to support the trial court's award of damages.
Having overruled each of appellant's three issues, we affirm the judgment of the trial court.