Gary Enslow v. Maureen Caballero--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00083-CV
Gary ENSLOW,

Appellant

v.
Maureen CABALLERO,

Appellee
From the 73rd Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-06487

Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 11, 2006

AFFIRMED

This is an appeal from a summary judgment rendered in favor of appellee. On appeal, appellant argues this court should extend the equitable standard set forth in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939) to his timely-filed, but defective, responses to appellant's motions for summary judgment. We decline to do so, and affirm the trial court's judgment.

PROCEDURAL BACKGROUND

Following a business dispute, appellee sued appellant. On October 20, 2005, appellee filed three motions for summary judgment. On November 4, 2005, appellant timely filed pro se responses to each of the motions for summary judgment. On November 14, 2005, appellee filed objections to appellant's responses. In her objections, appellee asserted that the exhibits attached to appellant's responses appeared to be unauthenticated or unsworn documents. On November 14, 2005, the trial court signed a final judgment sustaining all of appellee's objections, granting two of appellee's motions for summary judgment, and stating that the third motion was rendered moot. After retaining counsel, appellant filed a motion for new trial, asserting his failure to submit summary judgment evidence in affidavit form should be excused and was not intentional; he had a meritorious defense; and granting his motion for new trial would not result in delay or injury to appellee. The trial court denied the motion for new trial. On appeal, appellant asserts the trial court erred in denying his motion for new trial.

DISCUSSION

The Craddock Court held that a default judgment should be set aside when the defendant establishes that (1) the failure to answer was not intentional or the result of conscious indifference, but 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 undue delay or otherwise injure the plaintiff. Craddock, 133 S.W.2d at 126. The Craddock standard was later extended to cases in which a party has answered but fails to appear for trial. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966). The "purpose in adopting the Craddock standard was to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available." Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002).

In Carpenter, the Texas Supreme Court considered whether to apply Craddock to a situation in which a party had failed to timely respond to a motion for summary judgment. The Court held that "Craddock does not apply to a motion for new trial filed after summary judgment is granted on a motion to which the nonmoving failed to timely respond when the respondent had notice of the hearing and an opportunity to employ the means our civil procedure rules make available to alter the deadlines Rule 166a imposes." Id. at 683-84. Because, in that case, the respondent had the opportunity to obtain leave to late-file a response or request a continuance, the Court concludedCraddock did not apply. The Carpenter Court declined to address whether Craddock should apply when a respondent discovers its mistake after the summary judgment hearing or rendition of judgment. Id. at 686.

Here, appellant timely-filed his responses to appellee's motions for summary judgment. On appeal, he argues Craddock applies because he was not aware, until after rendition of judgment, that his summary judgment evidence was defective. However, appellee was aware of the objections raised to his summary judgment evidence on the day of the summary judgment hearing, and he could have, but did not, request a continuance to remedy the defects. See Tex. R. Civ. P. 5 ("Enlargement of Time"). Because our rules of procedure provided a remedy to appellant, Craddock does not apply. See Carpenter, 98 S.W.3d at 686.

CONCLUSION

We overrule appellant's issue on appeal. Because the application of Craddock is the only challenge raised to the trial court's granting of appellee's motions for summary judgment, and because we determine Craddock does not apply, we affirm the trial court's judgment.

Sandee Bryan Marion, Justice