Mischa Adorare v. Spillman Ranch Homes LP

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00704-CV

Mischa Adorare, Appellant v.

Spillman Ranch Homes LP, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1-CV-24-001441, THE HONORABLE TODD T. WONG, JUDGE PRESIDING

MEMORANDUM OPINION

Pro se appellant Mischa Adorare seeks relief from the trial court’s post-answer default judgment evicting her from certain residential premises owned by appellee Spillman Ranch Homes LP (Spillman Homes) and ordering her to pay attorney’s fees and past-due rent to Spillman Homes. By four issues that we have reordered, Adorare argues that the trial court abused its discretion because: (1) Adorare satisfied the Craddock test, and (2–4) its judgment and Spillman Homes’ behavior violated the Fourteenth Amendment’s Due Process and Equal Protection clauses, the Fair Housing Act, and the Civil Rights Act of 1866. We affirm in part and dismiss as moot in part.

I. BACKGROUND

On January 31, 2024, Spillman Homes filed suit against Adorare in justice court, seeking to evict Adorare from her residence and seeking to recover attorney’s fees and the

2

amount Adorare owed in past-due rent. On February 20, the justice court signed an order evicting Adorare from the premises in question, awarding Spillman Homes $9,579 as past-due rent and $6,338 in attorney’s fees. On February 26, Adorare appealed to county court.

Once in county court, a final hearing was scheduled for July 16. On July 10, Adorare filed a motion for a continuance, alleging that she needed additional time to obtain legal advice and prepare for trial and that she had experienced “an unforeseen medical emergency and was ordered by [her] doctor to seek in patient treatment for a potentially life threatening condition.” On July 12, the trial court moved the final hearing to July 30. But on July 12, Adorare filed her second motion for continuance, asserting that she needed additional time to seek legal advice and prepare for trial and that she had been “referred to the experts at Johns Hopkins in Baltimore, Maryland” to address her worsening symptoms. The trial court’s staff notified Adorare on July 16 that the motion would be heard on July 30.

Spillman Homes filed a response to Adorare’s second motion, arguing that Adorare had sufficient time to prepare for trial, given that nearly seven months had passed since the case was filed, and that Adorare’s assertions of her deteriorating health were not supported by any evidence. Though Spillman Homes acknowledged that attached to Adorare’s motion was a consultation summary from a doctor’s visit dated July 8 instructing Adorare to immediately report to the emergency room, Spillman Homes contended that there was no evidence that Adorare did, in fact, report to any emergency room.

The trial court proceeded to a final trial on July 30, at which Adorare did not appear, and it signed a final judgment that same day that evicted Adorare from her home and awarded Spillman Homes $11,549.67 in past due rent and $23,051.31 in trial attorney’s fees, as

3

well as a total of $22,500 in conditional appellate attorney’s fees. The trial court also denied Adorare’s July 12 motion for continuance by written order on July 30.

On August 5, Adorare filed an unverified motion to set aside the default judgment, arguing that she did not appear at the final hearing because “a doctor diagnosed [her] with a possible blood clot and instructed [her] to report to the emergency room for immediate treatment on July 29, 2024, as [she] ha[s] had previous blood clots.” Attached to Adorare’s motion were:

(1) a consultation summary from a doctor’s visit on July 29, indicating that she was instructed to “Redirect to Emergency Department Immediately” after receiving a diagnosis of swelling in her lower left leg,

(2) “Page 5 of 5” of a medical report from St. David’s Medical Center dated August 2, discussing generally what causes leg swelling, instructing Adorare to follow certain guidelines while at home, such as taking medicines as directed and wearing compression stockings if approved by a physician, and detailing the recommended “Follow-up care” was to “[f]ollow up with your healthcare provider as advised,”

(3) various other medical records,

(4) a letter from the Attorney General’s Office informing Adorare that her application to participate in the address confidentiality program had been received,

(3) a screenshot of an email from Adorare to the trial court on July 29 at 4:21 PM, informing the court and opposing counsel that she “most likely” would be unable to attend the hearing the following day because she been advised by her doctor “to return to [the] emergency room asap for treatment of a potential blood clot,” and stating that she would try to keep the court and opposing counsel updated,

(5) an email from the court’s administrative assistant sent on July 30 at 9:08 AM, indicating that because it had not received any updates from her, the court would be moving

4

forward with the hearing, and Adorare’s response, sent on August 1 at 11:41 AM, acknowledging receipt of the court’s email, and

(6) an email from Adorare to a redacted entity on July 30 at 11:58 AM, indicating that she was working on moving out of her home.

Spillman Homes filed a response to Adorare’s motion, arguing that Adorare’s failure to attend was the result of conscious indifference and that Adorare’s motion failed to set up a meritorious defense or demonstrate that granting a new trial would not injure Spillman Homes.

On September 16, Adorare submitted a filing entitled “Defendant’s Required Elements for Motion to Set Aside (Per Supreme Court of Texas Rulings Craddock Rule).” In this filing, Adorare argued that she did not owe any past-due rent and that Spillman Homes would not be prejudiced by granting her motion to set aside the default judgment. The factual allegations contained in this filing were also not verified or otherwise attested to.

On September 19, the trial court held a hearing on Adorare’s motion to set aside the default judgment, during which both parties presented arguments but neither introduced evidence. At the conclusion of the hearing, the trial court took the matter under advisement. On September 20, the trial court denied Adorare’s motion to set aside the default judgment. This appeal followed.

II. MOTION TO SET ASIDE DEFAULT JUDGMENT Adorare argues that her motion to set aside the default judgment should have been granted because she met all the elements of the Craddock test, and because the trial court and Spillman Homes violated the Fourteenth Amendment’s Due Process and Equal Protection clauses, the Fair Housing Act, and the Civil Rights Act of 1866. See U.S. Const. amend. XIV;

5

42 U.S.C. § 1981 (Civil Rights Act of 1866); 42 U.S.C. §§ 3601–3619 (Fair Housing Act). We address these contentions in turn.

A. Standard of Review In Craddock v. Sunshine Bus Lines, Inc., the Texas Supreme Court established a three-pronged test for determining when a defaulting party is entitled to a new trial. 133 S.W.2d 124, 126 (Tex. 1939). Under this test, a default judgment should be set aside and a new trial granted when the defaulting party establishes that: (1) the failure to appear was not intentional or the result of conscious indifference but was the result of accident or mistake, (2) they have a meritorious defense to the other party’s claims, and (3) granting the motion will occasion no delay or otherwise injure the plaintiff. Id.; Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (per curiam).

We review a trial court’s decision to deny a motion to set aside a default judgment for an abuse of discretion. Lerma, 288 S.W.3d at 926. “When a defaulting party moving for new trial meets all three elements of the Craddock test, then a trial court abuses its discretion if it fails to grant a new trial.” Id.

B. Craddock First, we note that Adorare no longer resides in the premises in question and has no arguable claim to possession of the premises, as her lease has long since expired. See Marshall v. Housing Auth. of S.A., 198 S.W.3d 782, 787 (Tex. 2006). Therefore, Adorare’s appeal from the portion of the trial court’s judgment ordering her to vacate the premises is moot, and we dismiss it for want of jurisdiction. See id. However, the portion of Adorare’s appeal that

6

relates to the amounts she was ordered to pay in past-due rent and attorney’s fees is not moot, and we thus turn to consideration of the merits of Adorare’s appeal as it pertains to that portion.

We turn to the merits of Adorare’s motion to set aside the default judgment. By her first issue, Adorare argues that her motion should have been granted, as she satisfied Craddock’s requirements. Because it is dispositive, we address only the third element of Craddock. The purpose of the third element of the Craddock test “is to protect a plaintiff against the sort of undue delay or injury that would result in a disadvantage when presenting the merits of the case at a new trial, ‘such as a loss of witnesses or other valuable evidence.’” Lerma, 288 S.W.3d at 929 (quoting Director, State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994)). To satisfy this element, Adorare merely had to allege in her motion that granting a new trial would not injure Spillman Homes. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, Adorare made no such allegation.

Though Adorare’s “Required Elements for Motion to Set Aside” filing addressed the third Craddock element, it was untimely, as it was filed over thirty days after the trial court signed its final judgment and without leave of court, and therefore did not cure her originally defective motion. See Tex. R. Civ. P. 329b(a), (b); Henderson v. Henderson, No. 03-10-00531-CV, 2011 WL 2768549, at *4 (Tex. App.—Austin July 13, 2011, pet. struck) (mem. op.) (defects in original motion for new trial were not cured by untimely supplement); see also Thompson v. Dallas City Att’ys Off., No. 05-17-00847-CV, 2018 WL 5077795, at *4 (Tex. App.—Dallas Oct. 18, 2018, no pet.) (mem. op.) (untimely assertion that granting new trial would not injure appellee did not satisfy third element of Craddock). Accordingly, because Adorare did not satisfy the third element of the Craddock test, the trial court did not abuse its discretion by denying Adorare’s motion to set aside her default judgment. See Williams

7

v. Garcia, No. 05-24-00974-CV, 2026 WL 1540675, at *2 (Tex. App.—Dallas June 1, 2026, no pet. h.) (mem. op.) (“Because Williams did not make the threshold allegation, he failed to establish that granting a new trial would not occasion any delay or otherwise injure Garcia.”); Weng v. Denton Highway Haltom Assocs., No. 2-09-361-CV, 2010 WL 2902510, at *2 (Tex. App.—Fort Worth July 22, 2010, no pet.) (mem. op.).

We overrule Adorare’s first issue.

C. Constitutional and Statutory Complaints Next, Adorare argues that the trial court’s final judgment violates the Civil Rights Act of 1866, the Fair Housing Act, and the Due Process and Equal Protection clauses of the Fourteenth Amendment. See U.S. Const. amend. XIV; 42 U.S.C. § 1981 (Civil Rights Act of 1866); 42 U.S.C. §§ 3601–3619 (Fair Housing Act). However, “rights, including constitutional rights, can be waived.” In re K.S.L., 538 S.W.3d 107, 113 (Tex. 2017). At the hearing on her motion to set aside the default judgment, Adorare alluded to the Equal Protection clause and the right to petition the courts for redress and explained that she had filed “fair housing complaint” against Spillman Homes. However, Adorare did not argue below, as she does on appeal, that her due process rights or the Fair Housing Act were somehow violated by the trial court proceeding with the hearing on July 30. Because Adorare’s complaints below do not comport with the complaints she raises on appeal, she has waived these sub-issues. See Tex. R. App. P. 33.1(a); Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007) (due process complaint not preserved by objection made on relevancy grounds).

Adorare also argues that because it denied her an equal opportunity to present evidence in her defense, the trial court violated the Equal Protection clause and Civil Rights Act

8

of 1866. Assuming without deciding that her complaints were preserved, we conclude that Adorare was not improperly denied the opportunity to present evidence. Had she attended the July 30 hearing, Adorare could have presented her own evidence and defended against Spillman Homes’. Although Adorare claims she was unable to attend the hearing because of her health condition, we note that she did not request any accommodations in the email she sent to the court the day before the hearing, such as the ability to appear remotely or even a continuance of the hearing based on these new facts. Additionally, despite telling the court that she would try to provide updates about her health when she received them, Adorare did not do so. And though Adorare suggests that she could not correspond further with the court because she had “limited access” to her email after July 29, we note that one of the emails attached to her motion to set aside was sent on July 30, shortly after the time the hearing was scheduled to begin. In the email, Adorare explained that she was in the process of moving out and hoped to be completely moved out by the following day. Based on this evidence, we cannot conclude that Adorare was somehow denied the same opportunity afforded to other similarly situated individuals.

Lastly, to the extent that Adorare complains on appeal that Spillman Homes violated the Fair Housing Act, the Civil Rights Act of 1866, and the Due Process and Equal Protection clauses of the Fourteenth Amendment by discriminating against her, those complaints go to whether Adorare had a potentially meritorious defense to Spillman Homes’ claims against her. Having concluded that her motion to set aside the default judgment failed under the third element of Craddock, we need not address whether she satisfied the second element. See Tex. R. App. P. 47.1. Additionally, to the extent that this argument challenges the sufficiency of the evidence to support the trial court’s final judgment, there is no suggestion in the record that in

9

determining the merits of Spillman Homes’ claims, the trial court heard or credited any assertions that Spillman Homes engaged in discriminatory behavior.

We overrule Adorare’s second, third, and fourth issues.

III. CONCLUSION

We dismiss as moot the portion of Adorare’s appeal from the trial court’s judgment evicting her from the premises. In all other respects, we affirm the trial court’s judgment. Adorare’s motion to vacate the judgment as void and to dismiss with prejudice the underlying eviction suit is denied in part and dismissed as moot in part.

__________________________________________

Maggie Ellis, Justice

Before Chief Justice Byrne, Justices Crump and Ellis Affirmed in Part; Dismissed as Moot in Part Filed: August 13, 2026