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defaulting defendant who failed to address two elements of the Craddock test on appeal was not entitled to a new trial
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No. 05-04-01027-CV
Opinion Filed September 15, 2005.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. CC-04-02288-E.
Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
On the Court's own motion, we vacate our previously issued: (1) July 18, 2005 memorandum opinion; (2) September 12, 2005 memorandum opinion nunc pro tunc; and (3) July 18, 2005 judgment. This is now the memorandum opinion of the Court.
We vacate our July 18, 2005 memorandum opinion to correctly cite Tex. R. Civ. P. 749, rather than Tex. R. Civ. P. 574b and to add a parenthetical explanation to the citation to Tex. Civ. Prac. Rem. Code Ann. § 51.002. Also, we vacate our September 12, 2005 memorandum opinion nunc pro tunc which vacated the July 18, 2005 memorandum opinion, but failed to vacate the corresponding judgment.
Ann Stewart, an attorney appearing pro se, appeals the final judgment against her in a forcible detainer action. Stewart specifies 30 points on appeal, but condenses them into three broad issues premised on her overarching complaint that the County Court at Law abused its discretion by failing to grant her motion for new trial because she established a meritorious defense. In her three broad issues, Stewart generally argues that both the Justice of the Peace Court and County Court at Law erred when they entered default judgments against her due to her failure to appear. Stewart generally argues in her first broad issue, that she established a meritorious defense by showing that the County Court at Law lacked jurisdiction because: (1) she filed a complaint for re-entry which sufficiently answered Trammell Properties complaint; (2) service of process in the Justice of the Peace Court was defective; and (3) Trammell Properties' complaint failed to state a prima facie cause of action. In her second broad issue, Stewart generally contends she established a meritorious defense by showing that there was no evidence to support Trammell Properties' complaint because: (1) Trammell Properties failed to offer evidence of the conditions precedent to a forcible detainer action; and (2) not even a scintilla of evidence supports Trammell Properties' forcible detainer action. In her third broad issue, Stewart generally contends she established a meritorious defense by showing that she was constructively evicted.
We do not have jurisdiction over any of Stewart's points which address the Justice of the Peace Court's judgment. Accordingly, we do not address those points which directly assert error in that judgment, or the portions of any of her points which address the Justice of the Peace Court's judgment either specifically or in general, vague terms. We decide Stewart's points as to the County Court at Law's judgment against her. The County Court at Law's judgment is affirmed. Because the issues in this appeal are well settled, we issue this memorandum opinion. See Tex.R.App.P. 47.4.
In her fifth, sixth, eleventh, twelfth, fourteenth, twenty-seventh, and twenty-ninth points, Stewart asserts specifically error in the Justice of the Peace Court's judgment. Her first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, assert error in the judgments of both the Justice of the Peace Court and the County Court at Law. Stewart's fourth, twenty-fifth, twenty-sixth, and thirtieth points do not identify which court's judgment she addresses.
I. FACTUAL AND PROCEDURAL BACKGROUND
Trammell Properties filed a forcible detainer action against Stewart in the Justice of the Peace Court. Stewart filed a complaint for re-entry. The Justice of the Peace Court entered a default judgment against Stewart when she failed to appear for trial.
Stewart appealed to the County Court at Law for a trial de novo where she generally denied the complaint and requested a trial. On April 6, 2004, the County Court at Law entered a default judgment against Stewart for failure to appear and signed the final judgment. Stewart filed a motion for new trial on May 7, 2004. In her motion for new trial, she argued that: (1) her failure to appear was the result of a deflated tire and unexpected traffic delays, and claimed that she called the clerk of the court to say she would be late; (2) her affidavit sets out her meritorious defense; and (3) there would be no undue delay because she filed a timely answer. Stewart did not obtain a hearing date until June 3, 2004, when the trial judge signed the fiat setting the matter for a hearing on July 19, 2004. Stewart's motion for new trial was overruled by operation of law on June 20, 2004. See Tex. R. Civ. P. 329b(c). On July 19, 2004, Stewart appeared at the hearing on her motion for new trial, but Trammell Properties did not. The County Court at Law reset the matter for a hearing on the following day because Stewart could not show she provided Trammell Properties notice of the hearing. On July 20, 2004, neither Stewart nor Trammell Properties appeared for the hearing.
The docket sheet shows the trial court waited one half hour for Stewart to appear. When she did not appear, the trial court entered the default judgment against her.
In a letter brief to this court regarding jurisdiction, Stewart asserts that she mailed her motion for new trial on May 6, 2004. Although Stewart does not provide this Court with proof that she timely mailed her motion for new trial, Trammell Properties did not dispute this fact in its letter brief on jurisdiction. We may accept uncontroverted representations of counsel as evidence. Davis v. State, 130 S.W.3d 519, 521 (Tex.App.-Dallas 2004, no pet.).
Some of the statements in Stewart's affidavit relate to her husband's actions and interaction with Trammell Properties, for which she could not have personal knowledge. There is no affidavit from Stewart's husband in the record.
II. JUSTICE OF THE PEACE COURT'S JUDGMENT
A party may appeal a justice court judgment for a trial de novo in the county or district court. See Tex. Civ. Prac. Rem. Code Ann. § 51.001 (Vernon 1997 Supp. 2004-05); Tex. R. Civ. P. 749; see also Tex. Civ. Prac. Rem. Code Ann. § 51.002 (forcible entry and detainer actions may not be removed from justice court by writ of certiorari). When an appeal from a justice court judgment is perfected in a county court, the judgment of the justice court is annulled. In re Garza, 990 S.W.2d 372, 374 (Tex.App.-Corpus Christi 1999, orig. proceeding); Sanchez v. Huntsville Independent School Dist., 844 S.W.2d 286, 289 (Tex.App.-Houston [1st Dist.] 1992, no writ); see Advance Imports, Inc. v. Gibson Prod. Co., Inc. of Sherman, 533 S.W.2d 168, 170 (Tex.Civ.App.-Dallas 1976, no writ). The parties must proceed in the county court as though no judgment had been rendered by the justice court. In re Garza, 990 S.W.2d at 374. A party may take an appeal or writ of error to the court of appeals from a final judgment of the district or county court. Tex. Civ. Prac. Rem Code Ann. § 51.012 (Vernon 1997 Supp. 2004-05).
This Court does not have jurisdiction to review the Justice of the Peace Court's judgment because it was annulled when Stewart perfected her appeal in the County Court at Law. Accordingly, we have no jurisdiction and cannot address the merits of those points, or the portions of her points complaining about the Justice of the Peace Court's judgment.
See supra n. 1.
III. COUNTY COURT AT LAW'S JUDGMENT
Now, we address Stewart's three issues only as to the County Court at Law's judgment. Generally, Stewart complains that the County Court at Law abused its discretion by denying her motion for new trial because she established a meritorious defense. She argues generally in her first broad issue, that she established a meritorious defense by showing that the County Court at Law lacked jurisdiction because: (1) she filed a complaint for re-entry which sufficiently answered Trammell Properties complaint; (2) service of process in the Justice of the Peace Court was defective; and (3) Trammell Properties' complaint failed to state a prima facie cause of action. In her second broad issue, Stewart generally contends she established a meritorious defense by showing that there was no evidence to support Trammell Properties' complaint because: (1) Trammell Properties failed to offer evidence of the conditions precedent to a forcible detainer action; and (2) not even a scintilla of evidence supports Trammell Properties' forcible detainer action. In her third broad issue, Stewart generally contends she established a meritorious defense by showing that she was constructively evicted.
In her third, seventh, tenth, fifteenth, seventeenth, eighteenth, twentieth through twenty-third, and twenty-eighth points, Stewart asserts error in the County Court at Law's final judgment. Also, as previously discussed, in her first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, Stewart asserts, in part, error in the judgment of the County Court at Law. Further, we construe Stewart's general arguments in her fourth, twenty-fifth, twenty-sixth, and thirtieth points as assigning error in the judgment of the County Court at Law.
A. Standard of Review
An appellate court reviews a trial court's ruling on a motion for new trial for an abuse of discretion. Director, State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Lowe v. Townview Watersong, L.L.C., 155 S.W.3d 445, 447 (Tex.App.-Dallas 2004, no pet.). A trial court abuses its discretion by not granting a new trial when all three elements, of what is referred to as the Craddock test, are met. Director, 889 S.W.2d at 268; Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). If no hearing was conducted by the trial court, an appellate court reviews the ruling based on the affidavits attached to the verified motion for new trial following a default judgment. See Ward v. Nava, 488 S.W.2d 736, 737 (Tex. 1972).
B. Applicable Law
Under the Craddock test, a trial court should set aside a default judgment and order a new trial in any case in which: (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; (2) provided 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. Director, 889 S.W.2d at 268; Craddock, 133 S.W.2d at 126. These prerequisites for setting aside a no-answer default judgment have been applied to post-answer default judgments. Director, 889 S.W.2d at 268. The defaulting defendant has the burden of proving that all three elements of the Craddock test are met before a trial court is required to grant a motion for new trial. Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587, 590 (Tex.App.-El Paso 2005, no pet.); Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 247 (Tex.App.-Corpus Christi 2004, no pet.); cf. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (if challenging notice of trial setting, defaulting party need only prove first element and not second and third elements of Craddock test to have post-answer default judgment set aside).
C. Application of the Law to the Facts
All of Stewart's points and issues address a single, overarching proposition wherein she claims the trial court abused its discretion in failing to grant her motion for new trial because, in her view, she raised meritorious defenses. However, Stewart must prove all three elements of the Craddock test to show that the County Court at Law abused its discretion when her motion for new trial was overruled by operation of law because she has not claimed at trial or on appeal that she did not receive notice of the trial setting. See Scenic Mountain Medical Center, 162 S.W.3d at 590; Padrino Maritime, Inc., 130 S.W.3d at 247; cf. Mathis, 166 S.W.3d at 745. Although she argued all three Craddock elements in her motion for new trial and attached an affidavit to support the first two elements, Stewart only argues on appeal that the trial court abused its discretion by denying her motion for new trial because she established a meritorious defense. She does not bring forward and address on appeal any argument that she met: (1) the first requirement under Craddock that her failure to appear was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; or (2) the third element under Craddock that her motion for new trial was filed at a time when the granting thereof would have occasioned no delay or otherwise worked an injury to Trammell Properties. On the record before us and based on the points and issues raised by Stewart on appeal, we cannot conclude that the trial court abused its discretion when Stewart's motion for new trial was overruled by operation of law.
Stewart's third, seventh, tenth, fifteenth, seventeenth, eighteenth, twentieth through twenty-third, and twenty-eighth points, are decided against her. Also, her first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, to the extent they complain about the County Court at Law's judgment, are decided against her. Finally, Stewart's general argument in her fourth, twenty-fifth, twenty-sixth, and thirtieth points, which we construed as arguing error in the judgment of the County Court at Law, are decided against her. Accordingly, Stewart's three issues on appeal relating to the above points complaining of the County Court at Law's judgment are decided against her.
III. CONCLUSION
We do not have jurisdiction to review and do not address: (1) Stewart's fifth, sixth, eleventh, twelfth, fourteenth, twenty-seventh, and twenty-ninth points which directly assert error in the Justice of the Peace Court's judgment; (2) Stewart's first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points to the extent she complains about the Justice of the Peace Court's judgment; and (3) Stewart's fourth, twenty-fifth, twenty-sixth, and thirtieth points, to the extent the general arguments in those points address the Justice of the Peace Court's judgment. We decide against Stewart as to: (1) Stewart's third, seventh, tenth, fifteenth, seventeenth, eighteenth, twentieth through twenty-third, and twenty-eighth points, which directly assert error in the County Court at Law's judgment; (2) Stewart's first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, to the extent she complains about the County Court at Law's judgment; and (3) Stewart's generally argued fourth, twenty-fifth, twenty-sixth, and thirtieth points, which we addressed only as to potential error in the judgment of the County Court at Law.
The County Court at Law's judgment is affirmed.