COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00050-CV
IN THE INTEREST OF E.P.C., APPELLANT A CHILD
------------
FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
Appellant Dominique Ross appeals the trial court’s denial of her motion for
new trial. Because we hold that the trial court did not abuse its discretion in
denying Ms. Ross’s motion, we affirm the trial court’s judgment.
Background Facts
Ms. Ross failed to appear at the final hearing on the modification of the
parent-child relationship regarding her child, E.P.C. At the same time, the court
also heard Ms. Ross’s former attorney’s motion to withdraw as counsel. Ms. 1 See Tex. R. App. P. 47.4. Ross’s former attorney claimed that she had had no communication with Ms.
Ross for months, despite repeated attempts to contact her, and therefore could
not represent Ms. Ross in the final hearing. The court granted the motion to
withdraw as counsel, granted a default judgment in the modification hearing, and
awarded custody to the child’s father. Ms. Ross filed a motion for new trial,
claiming that her absence was the result of an emergency surgery which left her
incapacitated on the day of trial. The motion was overruled by operation of law,
see Tex. R. Civ. Proc. 329b(c), and Ms. Ross appealed.
Standard of Review
Whether to grant a new trial after a default judgment lies within the
discretion of the trial court. Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex.
App.—Fort Worth 1986, no writ) (citing Craddock v. Sunshine Bus Lines, 133
S.W.2d 124, 126 (Tex. 1939)). To determine whether a trial court abused its
discretion, we must decide whether the trial court acted without reference to any
guiding rules or principles; in other words, we must decide whether the act was
arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire
v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot
conclude that a trial court abused its discretion merely because the appellate
court would have ruled differently in the same circumstances. E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its
decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.
1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur as
long as some evidence of substantive and probative character exists to support
2 the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.
2002).
Craddock sets forth the test that a trial court employs in deciding whether it
should set aside a default judgment and grant a motion for new trial. The movant
must establish (1) that the failure to appear ―was not intentional, or the result of
conscious indifference . . . , but was due to a mistake or an accident;‖ (2) that she
has a meritorious defense; and (3) that the granting of the motion for new trial
―will occasion no delay or otherwise work an injury to the plaintiff.‖ Craddock,
133 S.W.2d at 126. Because cases involving parental rights primarily concern
the best interest of the child, Tex. Fam. Code Ann. § 153.002 (Vernon 2008), the
court should ensure that it is as well informed as the circumstances allow.
Accordingly, the best interest of the child requires that issues be as fully
developed as possible, and technical rules of pleading and practice are not of
controlling importance. Williams v. Williams, 150 S.W.3d 436, 446 (Tex. App.—
Austin 2004, pet. denied).
Discussion
Ms. Ross claims that the court abused its discretion in denying her motion
for new trial because her absence was excused by her illness. A defaulting party
must provide some excuse, though not necessarily a good excuse, for failing to
timely file an answer or appear. Comanche Nation v. Fox, 128 S.W.3d 745, 750
(Tex. App.—Austin 2004, no pet.). That excuse, however, must be supported by
some evidence. Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 382 (Tex. App.—
Fort Worth 2004, pet. denied) (holding that defendant did not meet his burden
under the first Craddock prong when he presented no evidence supporting his
allegation that his failure to appear was not the result of his conscious
3 indifference); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d 642, 644 (Tex. App.—
Fort Worth 2003, no pet.) (―[T]he movant must either submit competent evidence
to support the Craddock elements [or] attach [affidavits] to its motion.‖). Ms.
Ross’s motion for new trial states that she had emergency surgery on the day of
the hearing and that the pain medication made her unable to contact the court or
her attorney regarding her absence. She also claims that her failure to contact
her attorney was based on her mistaken belief that, because she had failed to
pay her attorney’s fees, her attorney had withdrawn and she was no longer
represented by counsel.
Ms. Ross must also demonstrate that she has a meritorious defense. See
Craddock, 133 S.W.2d at 126. ―A meritorious defense has been set up so as to
meet the second Craddock prong if the facts alleged in the movant's motion and
supporting affidavits set forth facts which in law constitute a meritorious defense,
regardless of whether those facts are controverted.‖ In re R.R., 209 S.W.3d 112,
116 (Tex. 2006). Ms. Ross states in her motion for new trial, without further
detail, that she has a defense.
Ms. Ross failed to meet her burden under Craddock. She failed to support
her motion with any evidence at all and it is completely devoid of facts regarding
her possible defenses. She submitted no sworn affidavits or any other
documents with her motion. Ms. Ross merely alleges that she was ill and that
she has a defense. This, without more, does not satisfy the Craddock test. See
Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (―The motion must allege [f]acts
which in law would constitute a defense to the cause of action asserted by the
plaintiff, and must be supported by affidavits or other evidence proving prima
facie that the defendant has such meritorious defense.‖); Davilla, 139 S.W.3d at
4 382 (holding that presenting no evidence of alleged excuse or mistake fails to
satisfy the first prong of Craddock); Kelley, 103 S.W.3d at 644 (holding there was
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00050-CV
IN THE INTEREST OF E.P.C., APPELLANT A CHILD
------------
FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
Appellant Dominique Ross appeals the trial court’s denial of her motion for
new trial. Because we hold that the trial court did not abuse its discretion in
denying Ms. Ross’s motion, we affirm the trial court’s judgment.
Background Facts
Ms. Ross failed to appear at the final hearing on the modification of the
parent-child relationship regarding her child, E.P.C. At the same time, the court
also heard Ms. Ross’s former attorney’s motion to withdraw as counsel. Ms. 1 See Tex. R. App. P. 47.4. Ross’s former attorney claimed that she had had no communication with Ms.
Ross for months, despite repeated attempts to contact her, and therefore could
not represent Ms. Ross in the final hearing. The court granted the motion to
withdraw as counsel, granted a default judgment in the modification hearing, and
awarded custody to the child’s father. Ms. Ross filed a motion for new trial,
claiming that her absence was the result of an emergency surgery which left her
incapacitated on the day of trial. The motion was overruled by operation of law,
see Tex. R. Civ. Proc. 329b(c), and Ms. Ross appealed.
Standard of Review
Whether to grant a new trial after a default judgment lies within the
discretion of the trial court. Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex.
App.—Fort Worth 1986, no writ) (citing Craddock v. Sunshine Bus Lines, 133
S.W.2d 124, 126 (Tex. 1939)). To determine whether a trial court abused its
discretion, we must decide whether the trial court acted without reference to any
guiding rules or principles; in other words, we must decide whether the act was
arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire
v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot
conclude that a trial court abused its discretion merely because the appellate
court would have ruled differently in the same circumstances. E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its
decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.
1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur as
long as some evidence of substantive and probative character exists to support
2 the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.
2002).
Craddock sets forth the test that a trial court employs in deciding whether it
should set aside a default judgment and grant a motion for new trial. The movant
must establish (1) that the failure to appear ―was not intentional, or the result of
conscious indifference . . . , but was due to a mistake or an accident;‖ (2) that she
has a meritorious defense; and (3) that the granting of the motion for new trial
―will occasion no delay or otherwise work an injury to the plaintiff.‖ Craddock,
133 S.W.2d at 126. Because cases involving parental rights primarily concern
the best interest of the child, Tex. Fam. Code Ann. § 153.002 (Vernon 2008), the
court should ensure that it is as well informed as the circumstances allow.
Accordingly, the best interest of the child requires that issues be as fully
developed as possible, and technical rules of pleading and practice are not of
controlling importance. Williams v. Williams, 150 S.W.3d 436, 446 (Tex. App.—
Austin 2004, pet. denied).
Discussion
Ms. Ross claims that the court abused its discretion in denying her motion
for new trial because her absence was excused by her illness. A defaulting party
must provide some excuse, though not necessarily a good excuse, for failing to
timely file an answer or appear. Comanche Nation v. Fox, 128 S.W.3d 745, 750
(Tex. App.—Austin 2004, no pet.). That excuse, however, must be supported by
some evidence. Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 382 (Tex. App.—
Fort Worth 2004, pet. denied) (holding that defendant did not meet his burden
under the first Craddock prong when he presented no evidence supporting his
allegation that his failure to appear was not the result of his conscious
3 indifference); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d 642, 644 (Tex. App.—
Fort Worth 2003, no pet.) (―[T]he movant must either submit competent evidence
to support the Craddock elements [or] attach [affidavits] to its motion.‖). Ms.
Ross’s motion for new trial states that she had emergency surgery on the day of
the hearing and that the pain medication made her unable to contact the court or
her attorney regarding her absence. She also claims that her failure to contact
her attorney was based on her mistaken belief that, because she had failed to
pay her attorney’s fees, her attorney had withdrawn and she was no longer
represented by counsel.
Ms. Ross must also demonstrate that she has a meritorious defense. See
Craddock, 133 S.W.2d at 126. ―A meritorious defense has been set up so as to
meet the second Craddock prong if the facts alleged in the movant's motion and
supporting affidavits set forth facts which in law constitute a meritorious defense,
regardless of whether those facts are controverted.‖ In re R.R., 209 S.W.3d 112,
116 (Tex. 2006). Ms. Ross states in her motion for new trial, without further
detail, that she has a defense.
Ms. Ross failed to meet her burden under Craddock. She failed to support
her motion with any evidence at all and it is completely devoid of facts regarding
her possible defenses. She submitted no sworn affidavits or any other
documents with her motion. Ms. Ross merely alleges that she was ill and that
she has a defense. This, without more, does not satisfy the Craddock test. See
Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (―The motion must allege [f]acts
which in law would constitute a defense to the cause of action asserted by the
plaintiff, and must be supported by affidavits or other evidence proving prima
facie that the defendant has such meritorious defense.‖); Davilla, 139 S.W.3d at
4 382 (holding that presenting no evidence of alleged excuse or mistake fails to
satisfy the first prong of Craddock); Kelley, 103 S.W.3d at 644 (holding there was
no showing of a meritorious defense where there was no evidence submitted
regarding a defense and neither of the affidavits attached to the motion testified
to facts regarding such a defense); Wiseman v. Levinthal, 821 S.W.2d 439, 442
(Tex. App.—Houston [1st Dist.] 1991, no writ) (holding that unverified factual
allegations do not satisfy the first prong of Craddock).
Further, Ms. Ross does not dispute that she received and signed for a
letter from her attorney on December 12, 2009, five days before the hearing.
The letter notified Ms. Ross of her attorney’s intent to withdraw and informed Ms.
Ross of the date of the final hearing on the motion for modification. Ms. Ross’s
failure to respond to her attorney’s letter or to contact the court about her
attorney’s intended withdrawal or her inability to attend the hearing reflects an
intentional or conscious failure to respond, not a mistake or accident. See
O’Connell v. O’Connell, 843 S.W.2d 212, 218 (Tex. App.—Texarkana 1992, no
writ) (holding that trial court could have properly found that mother showed
conscious indifference to proceedings when, among other things, she did not
seek new counsel when her attorney withdrew and did not make inquiry
regarding the date of trial).
5 Conclusion
Because Ms. Ross failed to show that her absence was not intentional or
the result of conscious indifference, and because she failed to set up a
meritorious defense, we overrule Ms. Ross’s sole issue and affirm the trial court’s
judgment.
LEE GABRIEL JUSTICE
PANEL: WALKER, McCOY, and GABRIEL, JJ.
DELIVERED: December 23, 2010