Liepelt v. Oliveira

818 S.W.2d 75, 1991 WL 166136
CourtCourt of Appeals of Texas
DecidedOctober 24, 1991
Docket13-90-476-CV
StatusPublished
Cited by15 cases

This text of 818 S.W.2d 75 (Liepelt v. Oliveira) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liepelt v. Oliveira, 818 S.W.2d 75, 1991 WL 166136 (Tex. Ct. App. 1991).

Opinions

OPINION

NYE, Chief Justice.

Appellant, Frank Liepelt, appeals from a default judgment granted in favor of appel-lee, Winona Oliveira. Oliveira sued Liepelt for divorce. Although properly served, Liepelt did not file an answer or otherwise appear, and the trial court entered a default judgment. Liepelt timely filed a motion for new trial, which the trial court overruled after a hearing. Liepelt appeals by ten points of error. We affirm.

By his first point, Liepelt complains that the trial court abused its discretion as a matter of law in denying his motion for new trial because he provided legally sufficient, credible and uncontroverted evidence sufficient to support the granting of a new trial and the setting aside of the default judgment. The law is well-settled that certain prerequisites must be met in order to set aside a default judgment and obtain a new trial. Grissom v. Watson, 704 S.W.2d 325, 326 (Tex.1986). A motion for new trial is addressed to the trial court’s discretion, and the court’s ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984); Shirey v. Shirey, 730 S.W.2d 28, 29 (Tex.App.— Corpus Christi 1987, no writ). While trial courts have some measure of discretion in the matter, as they have in all cases governed by equitable principles, it is not an unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, [77]*77133 S.W.2d 124, 126 (Comm’n App.1939, opinion adopted).

The rule applicable to motions for new trial which seek to set aside default judgments entered on the failure of a defendant to file an answer and those entered on the failure to appear for trial is stated in Crad-dock:

A default judgment should be set aside and a new trial ordered in any case in which 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 accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Craddock, 133 S.W.2d at 126.

A meritorious defense is one that, if proved, would cause a different result upon retrial of the case, although it need not be a totally opposite result. Holliday v. Holliday, 72 Tex. 581, 10 S.W. 690, 692 (1889); Jackson v. Mares, 802 S.W.2d 48, 51 (Tex.App.—Corpus Christi 1990, writ denied). The Supreme Court further explained the Craddock case in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). The Ivy court stated that the meritorious defense need not be proved, only set up. In explaining this standard, the court said:

We note again the specific language of Craddock that a new trial should be granted to a defaulting defendant if his motion “sets up a meritorious defense.” This does not mean that the motion should be granted if it merely alleges that the defendant “has a meritorious defense.” The motion must allege facts 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.

Ivy, 407 S.W.2d at 214; see also Guaranty Bank v. Thompson, 632 S.W.2d 338, 339 (Tex.1982); Jackson, 802 S.W.2d at 51. Once these requirements are satisfied, allegations of a meritorious defense, if sufficiently specific, must be accepted as true despite the presence of disputed facts. Jackson, 802 S.W.2d at 51.

The only allegations contained in the motion for new trial which refer to a meritorious defense are as follows:

III.

Petitioner’s cause of action is a divorce action, based upon a purported prenuptial agreement. Respondent, Prank H. Liepelt, stands ready to swear, affirm, and testify at trial that the Petitioner breached her portion of the prenuptial agreement by not tendering, after Respondent made demand, the $30,000.00 in cash after demand was made by Respondent for the Petitioner to fulfill her portion of the alleged prenuptial agreement.

Liepelt did not present affidavits or testimony setting forth facts to support these allegations. He did not prove the existence of a prenuptial agreement between himself and his former wife, Winona Oliveira, nor did he prove the breach of a prenuptial agreement. The facts which constitute the alleged meritorious defense must be pleaded in the motion for new trial and established by affidavits or other evidence at the new trial hearing. Siegler v. Williams, 658 S.W.2d 236, 239 (Tex.App.—Houston [1st Dist.] 1983, no writ); Stark v. Nationwide Financial Corp., 610 S.W.2d 193, 194-95 (Tex.Civ.App.—Houston [1st Dist.] 1980, no writ); In re T.B.S., 601 S.W.2d 539, 541-42 (Tex.Civ.App.—Tyler 1980, no writ). We hold, therefore, that the trial court did not abuse its discretion in overruling the motion for new trial. Since the motion for new trial failed to set up a meritorious defense, we need not consider whether Liepelt’s failure to answer was intentional or the result of a mistake, or whether setting aside of the default judgment would occasion a delay or otherwise work an injury to Oliveira. Pierson v. McClanahan, 531 S.W.2d 672 (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.).

By point two, Liepelt complains that the trial court erred in conducting the default hearing and dividing the community [78]*78property because he was in Chapter 13 bankruptcy and, therefore, any property in which he held an interest, including community property, was subject to the automatic stay. Even though Liepelt did not present this complaint to the trial court, we will address the point. At the new trial hearing, Liepelt testified that he filed for bankruptcy in 1985 and that he was still in bankruptcy. No evidence showed that a bankruptcy stay was in effect at the time the trial court held the default hearing and divided the community property. We hold, therefore, that the trial court did not err in conducting the default hearing and dividing the community property.

By point three, Liepelt complains that the trial court erred in entering a final decree of divorce because Oliveira did not prove her residency, nor did she prove the grounds upon which her divorce suit was based.

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