C. L. Carroll, Sr. v. Buffalo Independent School District, et al.--Appeal from 87th District Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-96-017-CV

C. L. CARROLL, SR.,

Appellant

v.

BUFFALO INDEPENDENT SCHOOL DISTRICT, ET AL.,

Appellees

From the 87th District Court

Leon County, Texas

Trial Court # 6220-B

O P I N I O N

By two points of error, C. L. Carroll, Sr. ("Carroll") appeals the trial court's granting of a post-answer default judgment and its refusal to grant him a new trial. The Buffalo Independent School District, City of Buffalo, and County of Leon ("Appellees") sued Carroll to collect property taxes. Carroll filed a timely answer to this lawsuit on March 13, 1995. When neither Carroll nor his attorney appeared at trial, the trial court rendered judgment against him on September 18, 1995. Carroll filed an amended answer and a motion for new trial attaching his affidavit and his attorney's affidavit claiming they did not receive notice of the trial setting. Because we find that the trial court did not abuse its discretion, we affirm the judgment.

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. Director, State Emp. Wrks' Comp. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987). A post-answer default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to appear was not intentional or the result of conscious indifference, but was due to a mistake or accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise harm the plaintiff. Evans, 889 S.W.2d at 268; Cliff, 724 S.W.2d at 779; Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Where the defendant meets the guidelines of Craddock, it is an abuse of discretion for the trial court to deny the defendant a new trial. Evans, 889 S.W.2d at 268; Green v. McAdams, 857 S.W.2d 816, 818 (Tex. App. Houston [1st Dist.] 1993, no writ).

Once the defendant has alleged that the granting of a new trial will not delay or otherwise injure the plaintiff, the burden of going forward with proof of injury shifts to the plaintiff because these matters are peculiarly within the plaintiff's knowledge. Evans, 889 S.W.2d at 270; Cliff, 724 S.W.2d at 779. However, Carroll totally failed to address whether the Appellees would suffer no delay or harm. Thus, he failed to allege a necessary Craddock element. Evans, 889 S.W.2d at 268; Cliff, 724 S.W.2d at 779; Craddock, 133 S.W.2d at 126. The trial court did not abuse its discretion in refusing to grant Carroll a new trial. Therefore, we overrule Carroll's first and second points of error.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 4, 1996.

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