Qi Nan Weng v. Denton Highway Haltom Associates, Ltd. ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-361-CV
QI NAN WENG APPELLANT
V.
DENTON HIGHWAY HALTOM APPELLEE
ASSOCIATES, LTD.
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Qi Nan Weng appeals the trial court’s denial of his motion for
new trial. In one issue, Weng argues that because he met the Craddock
elements, the trial court abused its discretion by denying his motion for new
trial. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392–93, 133
S.W.2d 124, 126 (1939). We will affirm.
1
… See Tex. R. App. P. 47.4.
On or about January 30, 2003, Weng and Appellee Denton Highway
Haltom Associates, Ltd. (“DHHA”) entered into a lease agreement for
commercial space in Haltom City. The lease term was for ten years beginning
on November 1, 2003, and ending on October 31, 2013. On June 16, 2008,
Weng subleased the space to Ryan James Pace, with the consent of DHHA.
Under the terms of the sublease, Pace assumed the duty to perform and comply
with the terms of the original contract together with Weng and agreed to be
jointly and severally liable for any default.
Pace subsequently failed to make the lease payments as required by the
sublease, and DHHA declared the lease in default. DHHA then liquidated the
property remaining in the leased premises and leased the space to another
tenant.
DHHA sued Weng and Pace, and on June 30, 2009, DHHA filed a motion
for summary judgment against Weng and Pace. On July 30, 2009, the trial
court granted DHHA’s motion for summary judgment against Weng after Weng
failed to respond to the motion.2 The trial court granted a default judgment
2
… Weng states that he and his attorney “did not realize the mistake until
the order granting summary judgment was forwarded by DHHA’s counsel, and
at that point, neither Weng nor his attorney had any recourse to file a late
response or request a continuance.”
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against Pace after he failed to answer or appear. 3 On August 28, 2009, Weng
filed a motion for new trial, which the trial court denied on September 24,
2009. Weng appeals.
In his sole issue, Weng argues that because “[t]he evidence was legally
and factually sufficient to show that [he] met the factors set out in Craddock
for the granting of a new trial,” the trial court abused its discretion by denying
his motion for new trial.4 DHHA responds that because Weng did not meet the
second and third prongs of the Craddock test, the trial court did not abuse its
discretion.
We review a trial court’s refusal to grant a motion for new trial for an
abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926
(Tex. 2009); Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987). The trial
court abuses its discretion if it acts without reference to any guiding principles
or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
In Craddock, the Texas Supreme Court held that a default judgment
should be set aside and a new trial granted when the defaulting party
3
… Pace is not a party to the present appeal.
4
… Weng thus applies Craddock and does not raise any argument or issue
in this case as to whether the three Craddock elements are the applicable test.
3
establishes that (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. 134 Tex. at 392–93,
133 S.W.2d at 126; see Dolgencorp, 288 S.W.3d at 925.
Regarding the third element, once a movant alleges that a new trial would
not injure the plaintiff, the burden of proof shifts to the plaintiff to prove injury.
Dolgencorp, 288 S.W.3d at 929; Dir., State Employees Workers’ Comp. Div.
v. Evans, 889 S.W.2d 266, 270 (Tex. 1994); Estate of Pollack v. McMurrey,
858 S.W.2d 388, 393 (Tex. 1993). Two important factors in determining
whether the plaintiff would be delayed or injured are (1) whether the movant
offers to reimburse the plaintiff for the costs involved in obtaining the default
judgment and (2) whether the movant is ready, willing, and able to go to trial
almost immediately. Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 98
(Tex. 1986); Cont’l Cas. Co. v. Hartford Ins., 74 S.W.3d 432, 436 (Tex.
App.—Houston [1st Dist.] 2002, no pet.).
Here, Weng failed to address the third Craddock element in his motion for
new trial and supporting affidavits. See Dolgencorp, 288 S.W.3d at 929
(stating that once the defendant alleged that the granting of a new trial would
not injure the plaintiff, the burden shifted to the plaintiff to prove injury); Evans,
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889 S.W.2d at 270 (holding that the burden does not shift to the plaintiff to
show injury until the defendant alleges that the plaintiff would not be injured by
the granting of a new trial). In his motion for new trial, Weng alleged that his
failure to appear was the result of an accident in scheduling and that he has a
meritorious defense. However, he did not address whether DHHA would be
injured or suffer a delay because of the granting of the motion for new trial.
Nor did Weng address the two Angelo factors in his motion and supporting
affidavits. See Angelo, 713 S.W.2d at 98. Because Weng did not address the
third Craddock factor in his motion for new trial or in his supporting affidavits,
we hold that the trial court did not abuse its discretion by denying his motion
for new trial. See Craddock, 134 Tex. at 392–93, 133 S.W.2d at 126.
Accordingly, we overrule Weng’s sole issue and affirm the trial court’s order.
BILL MEIER
JUSTICE
PANEL: GARDNER and MEIER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: July 22, 2010
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