Court of Appeals of Texas,

Eastland.

Richard HUBBARD, Sr., Appellant

v.

J.T. PRESTON, Appellee.

No. 11–99–00226–CV.

|

Aug. 17, 2000.

Attorneys & Firms

Kelly Bickerstaff, for Richard Hubbard, Sr.

J.T. Preston, pro se.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

OPINION

JIM R. WRIGHT, Justice.

*1 The issue in this case is whether the trial court abused its discretion in refusing to set aside a default judgment and grant appellant’s motion for new trial. We reverse and remand.

J.T. Preston sued Richard Hubbard, Sr. for damage to property that he leased to Hubbard. The parties attended a court-ordered mediation on March 18, 1999, but were unable to reach an agreement. The case was called for trial on April 8, 1999. Hubbard’s counsel failed to appear for the trial setting, and the trial court entered a default judgment against him. Hubbard filed a motion for new trial on April 9 and attached his affidavit, his attorney’s affidavit, pictures of the subject property, and an award from the City of Mesquite for Yard of the Month for the two months preceding the date that he moved out of the house. Hubbard also filed a supplemental affidavit made by his housekeeper; she had cleaned the house the week he moved out. The trial court overruled Hubbard’s motion for new trial.

Hubbard argues that the trial court abused its discretion in refusing to set aside the default judgment and grant his motion for new trial because he met the three-part test in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex.1939). Alternatively, Hubbard argues that the pleading and evidence upon which the default judgment is based is insufficient as a matter of law.

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

[T]he 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; 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 work an injury to the plaintiff.

Craddock v. Sunshine Bus Lines, supra at 126.

The trial court’s ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Director, State Employees Workers’ Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex.1994). A trial court abuses its discretion by not granting a new trial when the elements of the Craddock test are met. Director, State Employees Workers’ Compensation Division v. Evans, supra.

Preston filed no controverting affidavits to Hubbard’s motion for new trial. We may only look to the motion and supporting affidavits before us to determine if the trial court abused its discretion in denying a new trial. Director, State Employees Workers’ Compensation Division v. Evans, supra. When the factual allegations in a movant’s affidavits are not controverted, the question of conscious indifference is determined in the same manner as a claim of meritorious defense. Thus, it is sufficient if the motion and affidavits set forth facts which, if true, would negate intentional or consciously indifferent conduct. Strackbein v. Prewitt, 671 S.W.2d 37 (Tex.1984).

*2 “In determining whether there was intentional disregard or conscious indifference we must look to the knowledge and acts of the defendant.” Strackbein v. Prewitt, supra at 39. In an affidavit which accompanied the motion for new trial, Hubbard’s attorney states that the failure to appear at the trial setting “was not intentional or due to neglect but was a result of an oversight” in failing to calendar the trial setting. Since the factual assertions in Hubbard’s affidavits were not controverted, Hubbard has satisfied his burden if the affidavits contained facts which, if true, negated intentional conduct or consciously indifferent conduct. Calendaring errors have been held sufficient to establish “mistake or accident” under Craddock. Presbyterian Healthcare Systems v. Afangideh, 993 S.W.2d 319, 323 (Tex.App.-Eastland 1999, pet’n den’d). Hubbard’s motion and supporting affidavits clearly satisfy the first element of Craddock.

The second requirement of Craddock is that the motion for new trial set up a meritorius defense. Setting up a meritorious defense is based on the facts alleged in the movant’s motion and supporting affidavits, regardless of whether those facts are controverted. Director, State Employees Workers’ Compensation Division v. Evans, supra at 270. In his affidavit, Hubbard stated that he kept the house “very well maintained and cared for throughout the period of time” that he lived there. He also stated that his yard was selected as yard of the month by the City of Mesquite for June and July of 1998. Furthermore, both Hubbard’s affidavit and the supplemental affidavit of Pam Beaver, state that Beaver cleaned the house one week before Hubbard moved out. These assertions are sufficient to set up a meritorious defense as required by Craddock .

The third requirement is that the motion for new trial be filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. “Once a defendant has alleged that granting a new trial will not injure the plaintiff, the burden of going forward with proof of injury shifts to the plaintiff .” Director, State Employees Workers’ Compensation Division v. Evans, supra. In his motion for new trial, Hubbard stated that he was “prepared to go to trial immediately or at the Court’s very earliest convenience. This new trial is being sought so that justice may be done and is not being sought for the purpose of delay .” This uncontroverted evidence satisfies the third requirement of Craddock.

The three requirements of Craddock have been met, and the trial court erred when it denied the motion for new trial. In view of our holding in this regard, we need not address the other issue raised on appeal. TEX.R.APP.P. 47.1.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.