Court of Appeals of Texas, Fourth District, San Antonio
the 79th Judicial District Court, Brooks County, Texas Trial
Court No. 11-10-16006-CV Honorable Richard C. Terrell, Judge
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard,
Justice Patricia O. Alvarez, Justice
Marialyn Barnard, Justice.
and Mae Saenz appeal a post-answer default decree of
partition and final judgment nunc pro tunc. The sole issue
presented on appeal is whether the trial court abused its
discretion in denying the appellants' motion for new
trial. We affirm the trial court's judgment.
appellees filed the underlying lawsuit seeking to partition
certain real property jointly owned by the appellees and
appellant Rene Saenz. The appellees also sought reimbursement
for improvements they made to the property and a
disproportionate division of the property to be partitioned
based on the appellants' failure to proportionately share
hunting revenues they received and their overgrazing of a
portion of the property.
the appellants filed an answer, they did not appear at trial.
As a result a post-answer default judgment was entered. In
the judgment, the trial court found the property was
susceptible to a fair and equitable partitioning in kind and
appointed commissioners to make the partition. The trial
court also found appellees Ramon Saenz, Jr. and Javier Saenz
incurred $174, 833.65 in improving, maintaining, and
preserving the property and ordered appellant Rene Saenz to
reimburse them a proportionate share of the expenses.
Finally, the trial court found the following amounts would be
awarded to the appellants through a disproportionate division
of the property to be partitioned: (1) $48, 000.00 in hunting
revenue appellant Rene Saenz received for leasing a portion
of the property which was not shared with the appellees; (2)
$83, 200.00 in damages resulting from appellant Rene Saenz
overgrazing a portion of the property; and (3) $2, 193.00
incurred in paying appellant Rene Saenz's 1/3 share of
the property surveying expense.
appellants timely filed a motion for new trial, and a hearing
was held on the motion. The trial court, however, allowed the
motion to be overruled by operation of law.
Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388,
133 S.W.2d 124, 126 (1939), the Texas Supreme Court held a
default judgment should be set aside and a new trial granted
when the defaulting party establishes: (1) the failure to
appear was not intentional or the result of conscious
indifference, but was the result of an accident or mistake;
(2) the motion for new trial sets up a meritorious defense;
and (3) granting the motion will occasion no delay or
otherwise injure the plaintiff. A trial court's refusal
to grant a motion for new trial is reviewed under an abuse of
discretion standard. Dolgencorp of Tex., Inc. v.
Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Weech v.
Baptist Health Sys., 392 S.W.3d 821, 824 (Tex. App.-San
Antonio 2012, no pet.). "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."
Dolgencorp of Tex., Inc., 288 S.W.3d at 926.
the appellants argue they satisfied all three
Craddock requirements, we conclude their failure to
set up a meritorious defense is dispositive. A motion for new
trial does not set up a meritorious defense if "it
merely alleges that the defendant has a meritorious
defense." Ivy v. Carrell, 407 S.W.2d 212, 214
(Tex. 1966). Instead, the movant "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 of other evidence proving prima facie that the
defendant has such [a] meritorious defense."
Id. "This much is necessary to prevent the
reopening of cases to try out fictitious or unmeritorious
defenses." Id. "Therefore, 'conclusory
allegations are insufficient.'" Action
Powersports, Inc. v. 1STEL, Inc., 500 S.W.3d 632, 640
(Tex. App.-Texarkana 2016, no pet.) (quoting Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex.
case, the appellants' motion alleged the appellees
received hunting lease funds of approximately $16, 400 each
year for approximately fifteen years which were not shared
with the appellants. Although the
appellants attached Rene Saenz's affidavit to their
motion, his affidavit only addressed his inability to attend
the trial setting because he was hospitalized. His affidavit
does not allege any facts that would constitute a defense to
the causes of action asserted by the appellees. Similarly, at
the hearing on the motion for new trial, the only evidence
regarding an alleged defense was Rene Saenz's responding
"yes" when his attorney asked him if he believed he
had "some defenses or some legitimate claims."
Because appellants failed to provide affidavits or other
evidence proving prima facie that they have a ...