Opinion
No. 05-03-01573-CV
Opinion issued July 7, 2004.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc-03-11819-d.
Affirmed.
Before Chief Justice THOMAS and Justices, MORRIS and WHITTINGTON.
MEMORANDUM OPINION
Jeannie Montes, the surviving spouse of Arthur R. Montes, appeals the trial court's post-answer default judgment in favor of First Horizon Home Loan Corporation. In seven issues, Montes generally contends the default judgment was improper. We overrule her issues and affirm.
In her first issue before this Court, Montes contends she "conclusively established her constitutional right" to "continue her lawfully acquired right to immediate possession" of the property at issue in this case. We disagree.
Our review of the record shows this is a post-answer default judgment. On August 6, 2002, First Horizon purchased the property located at 2448 Gibbs Williams Road in Dallas at a foreclosure sale. Fifteen days later, First Horizon sent notification of the purchase to Montes along with a notice to vacate. When Montes refused to vacate the home, First Horizon filed a forcible detainer suit in justice of the peace court. Following the justice of the peace court's September 18, 2003 judgment, First Horizon filed an appeal de novo in the county court at law. On October 15, 2003, the case was called for trial; however, neither Montes nor her attorney appeared. After First Horizon's presentation of evidence, the trial judge granted a default judgment in favor of the company.
The next day, Montes filed an unsworn motion to reinstate the case. The motion requested the trial judge "reinstate the case and grant [Montes's] Motion for Continuance." The clerk's record does not contain a motion for continuance. That same day, Montes also filed a motion to stay order of judgment and a "motion to approve her affidavit of inability to pay court costs." The trial judge granted Montes's request to proceed as a pauper. The judge did not rule on the remaining motions.
As a general rule, a party seeking to set aside a default judgment must file a sworn motion for new trial in which she states she has satisfied the requirements set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). A trial judge must grant a new trial if he determines (i) the defendant's failure to answer before judgment was not intentional or the result of conscious indifference on the defendant's part, but was due to a mistake or accident, (ii) the motion for new trial sets up a meritorious defense, and (iii) the motion is filed at a time when its granting would not result in a delay or otherwise injure the plaintiff. Craddock, 133 S.W.2d at 126. The Craddock test applies to a post-answer default judgment entered when a defendant fails to appear at a trial setting. Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex. App.-Dallas 1993, writ dism'd.). Montes did not file a sworn motion for new trial; rather she filed a motion to reinstate. In the motion, Montes's counsel stated he was unable to leave his house on the morning of trial because he contracted food poisoning the night before. He claimed he attempted to call the court coordinator and opposing counsel, but was unable to speak to either personally. Even if we consider Montes's unsworn motion to reinstate as a motion for new trial, the motion does not request a new trial nor does it set forth all the Craddock requirements necessary to establish her entitlement to a new trial.
Although Montes argues she established her right to the property, the record clearly establishes she did not appear at trial, nor did she present any evidence to support her contentions. Thus, her argument that she "conclusively established" her right to immediate possession of the property lacks merit. In contrast, First Horizon appeared and presented evidence that (i) First Horizon was the lienholder of the debt secured by the property, (ii) the debt was in default, (iii) First Horizon foreclosed the debt and purchased the property at the foreclosure sale, (iv) the deed of trust specified that Montes was a tenant at sufferance, and (v) First Horizon gave Montes notice to vacate the property which she refused to do. This evidence is legally sufficient to establish that Montes committed a forcible detainer and to support the trial court's judgment. See Tex. Prop. Code. Ann. § 24.002 (Vernon 2000); Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.-Houston [14th Dist.] 1993, no writ). Finding it lacks merit, we overrule Montes's first issue.
In her issues two through six, Montes argues this suit was not a forcible detainer, challenges a separate case filed in district court, and complains the trial court's order requiring Montes to file a supersedeas bond was void or voidable. Under these issues, Montes 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 Montes 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 issues two, three, four, five, and six. Because issue seven, a request for attorney's fees should Montes prevail, is moot, we also overrule issue seven.
We affirm the trial court's default judgment.