Opinion
No. 11-03-00020-CV.
February 19, 2004.
Appeal from Dallas County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Memorandum Opinion
This is an appeal from a default judgment granting possession of certain real property to Nations Credit Financial Services Corporation. After acquiring the property at a foreclosure sale and giving notice to vacate, Nations Credit filed a forcible entry and detainer action against the occupants of the property. A default judgment in favor of Nations Credit was obtained in justice court, and Leroy Phillip Mitchell appealed to county court for a trial de novo. Mitchell did not file an answer in this case and did not appear when the case was called for trial in county court. The county court entered a default judgment against Mitchell in favor of Nations Credit. We affirm.
In a single point of error on appeal, Mitchell contends that the trial court erred by refusing to grant his motion for new trial. Mitchell moved for new trial on the grounds that his failure to appear was not intentional, that he has a meritorious defense, and that a new trial will not cause delay or injury to Nations Credit. A default judgment should be set aside in any case in which the defendant demonstrates the following: (1) that its failure to answer was not intentional or the result of conscious indifference, but was due to mistake or accident; (2) that it has a meritorious defense; and (3) that the granting of a new trial will not operate to cause delay or other injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); see also Director, State Employees Workers' Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Old Republic Insurance Company v. Scott, 873 S.W.2d 381 (Tex. 1994). A trial court has discretion to rule on such a motion for new trial; however, where all three of the Craddock elements are satisfied, it is an abuse of discretion for the trial court to deny the defendant a new trial. Director, State Employees Workers' Compensation Division v. Evans, supra at 268; Old Republic Insurance Company v. Scott, supra at 382.
In this case, the uncontroverted evidence showed that Mitchell failed to appear for trial in county court on October 3, 2002, because he was required to be in Colorado as a witness in federal court during that same week. A letter from Mitchell's attorney in Colorado confirmed Mitchell's assertion. Although Mitchell explained that his failure to appear at trial was due to his absence from the state, Mitchell failed to explain why he did not file an answer or request a continuance in this case. Pursuant to TEX.R.CIV.P. 753, if the defendant in a forcible entry and detainer case fails to file a written answer in either the justice court or the county court within eight days after the transcript is filed in county court, "the allegations of the complaint may be taken as admitted and judgment by default may be entered." Mitchell offered no explanation whatsoever as to why he did not file an answer in this case. We hold that Mitchell has not shown that his failure to answer was not intentional or the result of conscious indifference. Because Mitchell did not satisfy the first element of the Craddock test, the trial court did not abuse its discretion in denying Mitchell's motion for new trial.
Moreover, Mitchell has also failed to meet the second element of the Craddock test. The "only issue" in an action for forcible entry and detainer is the "right to actual possession; and the merits of the title shall not be adjudicated." TEX.R.CIV.P. 746; see Dormady v. Dinero Land Cattle Co., L.C., 61 S.W.3d 555 (Tex.App.-San Antonio 2001, pet'n dism'd w.o.j.). Mitchell asserts that he had a meritorious defense because he had an equitable claim of ownership or a right of reimbursement against the property and Nations Credit. Mitchell's "meritorious defense" was not a defense against Nations Credit's right to possession of the property. See Dormady v. Dinero Land Cattle Co., L.C., supra. Mitchell's point of error is overruled.
The judgment of the trial court is affirmed.