Brandon Scott Kelley v. Nicole Lee Sweeney--Appeal from 410th District Court of Montgomery County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00233-CV

Brandon Scott Kelley,

Appellant

v.

Nicole Lee Sweeney,

Appellee

From the 410th District Court

Montgomery County, Texas

Trial Court No. 03-09-06553 CV

MEMORANDUM Opinion

Nicole Sweeney sued Brandon Kelley to establish his parentage of E.N.K. on September 9, 2003. She also sought sole managing conservatorship and past and future child support and health care expenses. On February 24, 2004, Kelley filed a pro se answer denying Sweeney s allegations.

According to both parties, they attended court-ordered mediation on February 25, 2004, but no agreement was reached. Both parties agree that the trial court set the case for a trial on March 16, 2004. Kelley did not attend the March 16 trial, and the trial court entered an order adjudicating Kelley to be the father of E.N.K., appointing Sweeney sole managing conservator, and ordering Kelley to pay monthly child support. There is no reporter s record in this appeal.

Kelley filed a motion for new trial and a supporting affidavit, alleging that his failure to appear was accidental because he had been ill for several days before the March 16 hearing, had not been to work, and was unable to check his calendar. He asserts that he did not remember that the hearing was on March 16. He states that when he returned to work on March 16 and was reminded of the hearing, the time for the hearing had passed. He concludes his affidavit by stating that his failure to appear was not the result of conscious indifference, that granting a new trial will not cause delay or injury to any party, and that a new trial will be in the child s best interest.

Kelley sought an oral hearing on his motion for new trial, but he later filed a notice that his motion would be submitted for ruling without a hearing.

Sweeney filed an objection to Kelley s motion for new trial that included her affidavit and a request for a hearing. Her affidavit states that immediately after mediation and in court, after the trial judge set the case for trial on March 16, Kelley asked the trial judge if he would be getting a reminder of the trial date. Sweeney states that the trial judge told Kelley that he would not be receiving notice and that he should write the date on his calendar. She states that Kelley does not keep a routine calendar, that normally his mother reminds him of important dates, and that Kelley did not inform his mother of the March 16 trial. Sweeney further states that she asked Kelley why he didn t attend the trial and that Kelley responded that he had more important things on his mind, such as his pending armed robbery case. Finally, Sweeney states that she contacted Kelley on March 16, several hours after the trial, to ask him why he had failed to appear, and Kelley told her that he was not aware of the trial date. She adds that Kelley did not indicate that he had looked at any calendars.

The trial court denied Kelley s motion for new trial, and Kelley appeals that denial. A trial court s denial of a motion for new trial is reviewed for abuse of discretion. Director v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987). An abuse of discretion occurs when a trial court fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Thus, a trial court abuses its discretion by not granting a new trial when all three elements of the Craddock test are met. Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992).

Craddock provides that a default judgment should be set aside and a new trial ordered in any case in which:

[1] 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 an accident; [2] provided the motion for a new trial sets up a meritorious defense and [3] is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Evans,889 S.W.2d at 268 (quoting Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)). The prerequisites for setting aside a no-answer default judgment apply to a post-answer default judgment. See, e.g., Cliff, 724 S.W.2d at 779; Grissom v. Watson, 704 S.W.2d 325, 326 (Tex. 1986). They also apply to SAPCR suits. See, e.g., In re R.H., 75 S.W.3d 126, 130 (Tex. App. San Antonio 2002, no pet.). The defaulting defendant has the burden of proving all three elements of the Craddock test are met before a trial court is required to grant a motion for new trial. Freeman v. Pevehouse, 79 S.W.3d 637, 641 (Tex. App. Waco 2002, no pet.).

Unless the plaintiff specifically controverts the facts alleged by the defendant for a new trial, the defendant will prevail on the issue of mistake. McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App. Austin 1997, writ denied). When the facts supporting a motion for new trial are controverted, ordinarily the trial court will conduct a hearing. Estate of Pollack v. McMurrey, 858 S.W.2d 388, 392 (Tex. 1993); Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App. Houston [14th Dist.] 1998, no pet.). If the facts are contested and the movant does not request a hearing, generally the movant will not be able to show on appeal that he was entitled to a new trial because he will not be able to demonstrate that the trial court abused its discretion. See Puri, 973 S.W.2d at 715; Cocke v. Saks, 776 S.W.2d 788, 789-90 (Tex. App. Corpus Christi 1989, writ denied).

We begin with whether Kelley s failure to appear at trial was the result of conscious indifference or was due to a mistake or an accident. Conscious indifference has been defined as the failure to take some action which would seem indicated to a person of reasonable sensibilities under the same or similar circumstances. Young v. Kirsch, 814 S.W.2d 77, 81 (Tex. App San Antonio 1991, no writ). As for showing accident or mistake, 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.).

A trial court can reasonably believe, based on contradictory evidence, that there was intentional or consciously indifferent conduct on the part of a defendant. Freeman, 79 S.W.3d at 647 (citing K-Mart Corp. v. Armstrong, 944 S.W.2d 59, 62 (Tex. App. Amarillo 1997, writ denied), and Baker v. Kunzman, 873 S.W.2d 753 (Tex. App. Tyler 1994, writ denied)). Because Kelley apparently withdrew his request for a hearing on his motion for new trial, the trial court was left with only conflicting affidavits: Kelley s, which presented a mistake or accident; and Sweeney s, which portrayed Kelley as consciously indifferent to the trial date. The trial court could have reasonably found that Kelley did not meet the first element of the Craddock test.

Based on the record in this appeal, we cannot say that the trial court abused its discretion in denying Kelley s motion for new trial.

We overrule Kelley s sole issue and affirm the trial court s order.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 21, 2005

[CV06]