Court of Appeals of Texas, Houston (1st Dist.).
Jess L. GRAY, Appellant
v.
Jonathan R. CAMPBELL, Appellee
01-95-00317-CV.
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Sept. 21, 1995.
OPINION
BASS, Justice.
*1 Appellant, Jess L. Gray, appeals by writ of error from a default judgment entered against him and in favor of appellee, Jonathan R. Campbell. Gray contends that the trial court abused its discretion by denying his motion for new trial. We affirm the trial court’s decision.
BACKGROUND
On October 4, 1994, Gray’s residence was foreclosed and sold by way of trustee’s deed to Campbell. Campbell filed a complaint for forcible detainer against Gray in a Harris County justice court. The justice court ruled in favor of Campbell. Gray filed and perfected an appeal of the judgment to the county court at law. The county clerk notified Gray that an answer must be filed. His counsel inadvertently failed to timely file an answer, and a default judgement was entered. Gray filed a timely motion for new trial, which was denied by the county court. Gray then filed petition for writ of error in this court.
Threshold Issue
A threshold issue raised by Campbell in his cross-point is whether Gray was entitled to petition for writ of error. Campbell contends that Gray failed to satisfy one of the requirements for filing a petition for writ of error in the court of appeals. Tex.R.App. P. 45(b) provides: “No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the court of appeals through means of writ of error.” Campbell cites Blankinship v. Blankinship, 572 S.W.2d 807 (Tex.Civ.App.-Houston [14th Dist.] 1978, no writ) for the proposition that the extent of participation in actual trial that disqualifies an appellant from review by means of a writ of error is one of degree. In Blankinship, the fact that the petitioner signed a waiver of citation, waived the making of a record, and signed the judgment before it was final removed him from the category of those who are entitled to bring a writ of error because they discovered a judgment had been rendered against them after the fact. Writ of error review is not denied by participation limited to the mere filing of an answer or a motion for new trial, however. Blankinship, 572 S.W.2d at 808. Review by writ of error is denied to one who participates in the actual trial that leads to a final judgment. Id.
In the present case, Gray did not participate in the actual trial that led to judgment. In fact, Gray did not even know about the judgment. Under these circumstances, we find that Gray did not participate in the actual trial of the case.
Accordingly, we overrule Campbell’s cross-point and address the merits of Gray’s appeal.
Motion for New Trial
Gray contends in points of error one and two that the trial court abused its discretion by denying his motion for new trial based on legal and equitable grounds. Gray’s legal ground is that the justice court impermissibly adjudicated the merits of title to the property before determining the issue of who had right to possession. Gray’s equitable ground is that his failure to file an answer was not intentional because counsel inadvertently misfiled the letter from the county court clerk notifying Gray that he was required to file an answer.
A. Standard of Review
*2 The applicable standard of review was established in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex.1939). 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.
Id. at 126; Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994).
B. Application
Gray’s approach on appeal divides the three requirements of Craddock into legal grounds (meritorious defense) in point of error one and equitable grounds (unintentional failure to answer and no delay or injury to plaintiff) in point of error two.
Gray’s alleged meritorious defense is that the justice court impermissibly adjudicated the merits of title to the property before determining the issue of who had right to possession. Gray is correct in stating that the justice court may not adjudicate the merits of title in a forcible entry or forcible detainer action. Fandley v. Lee, 880 S.W.2d 164, 168-69 (Tex.App.-El Paso 1994, writ denied); Tex.R. Civ. P. 746.
As Campbell points out, however, the justice court merely determined possession in this case. All of the records from the justice court demonstrate that only possession was adjudicated. Campbell’s complaint asked for possession of the premises at 1503 W. Gulf Bank and prayed for restitution of said premises. The writ of citation issued by the justice court noted Campbell’s demand for the possession of the property. The justice court’s judgment for Campbell orders writ of possession to issue.
If anyone attempted to introduce the issue of title into the case, it was Gray, who now claims that the justice court, and the county court on appeal, had no jurisdiction to examine the merits of title. Gray’s affidavit in support of his motion for new trial stated that the foreclosure, by which Campbell had received a trustee’s deed under which he claimed possession, was unlawful and, therefore, title to the homestead remained in Gray. Examination of the judgment of the county court, however, shows that court also determined only possession.
The record shows that only possession was determined in the justice court and county court. Gray has not shown any meritorious defense.
We overrule Gray’s first point of error. Therefore, it is unnecessary to address his second point of error.
We affirm the trial court’s judgment.
PRICE1 and FARRIS2, JJ., also sitting.
Footnotes |
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1 |
The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment. |
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2 |
The Honorable David F. Farris, former Justice, Court of Appeals, Second District of Texas at Fort Worth, sitting by assignment. |
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