MAURICIO ESTRADA v. BOSS EXOTICS LLC AND RODNEY MCGAFFEY (2024)

OPINION

AFFIRM in part, REVERSE in part, and REMAND; Opinion Filed December 18, 2024

Appellant Mauricio Estrada appeals a no answer default judgment rendered against him in a lawsuit filed by appellees Boss Exotics, LLC and Rodney McGaffey. For the following reasons, we affirm the default judgment, but reverse the award of unliquidated damages and attorney's fees and remand for further proceedings.

Background

In October 2020, Estrada bought a vehicle from Boss Exotics, which is owned and operated by McGaffey. After Boss Exotics notified Estrada of an error on the vehicle's title, Estrada sued both Boss Exotics and McGaffey.¹ The parties negotiated to settle the suit, and, in December 2022, Estrada's counsel drafted a settlement agreement. Appellees signed the agreement, which provided that Boss Exotics was to tender $15,000 and the vehicle's title to Estrada, care of his counsel. Boss Exotics did so, and Estrada's counsel cashed the $15,000 check shortly after receiving it.

Pursuant to the agreement, Estrada's counsel filed a letter notifying the court that the suit had been settled. At a February 2023 dismissal hearing, however, counsel reported that Estrada needed more time before dismissing the case. And at a March dismissal hearing, counsel notified the court that Estrada no longer wanted to settle the suit.

Appellees initiated this action, alleging that Estrada failed to perform his duties under the settlement agreement and asserting claims for breach of the settlement agreement and fraudulent inducement. Estrada did not file an answer, and appellees filed a motion for default judgment on their claims. Following a brief hearing, the trial court signed an order granting the motion. The court ordered that appellees recover judgment for the sum of $90,000 and post-judgment interest. It also awarded reasonable and necessary attorneys' fees and court costs in the amount of $5,856.96 and conditional appellate fees.

Estrada filed a motion to set aside the default judgment. Among other things, the motion stated that Estrada failed to file an answer because of accident or mistake, as opposed to intentionally or with conscious disregard. Specifically, he explained:

My failure to file an answer was due to not having legal advice. I have tried numerous times to call and seek help but I have not been successful. I was also not aware of any hearing for this case. All I received by mail was the citation.

At a subsequent hearing on his motion, Estrada further described the reason for his motion to set aside the default judgment:

The -- the reason for this motion was because, um, I was trying to seek help -- I was trying to find some legal advice at the moment. I was trying to con- -- to call different counsels, and, um, I just wasn't getting any -- any luck.

I contacted the State Bar as well, and I was able to get some numbers but, um, I wasn't able to find any -- any counsels either because they didn't have time or they couldn't take my case at the moment. And I just -- I just wasn't sure how to file an answer or what was -- what was needed to -- to properly file an answer. That's why I was -- I was my -- my intention was not to not file anything. I just wanted to file the correct answer, and I just -- I just wasn't sure exactly how to -- how to do that.

After hearing the parties' arguments, the trial court signed an order denying Estrada's motion. This appeal followed.

Denial of Motion to Set Aside Default Judgment

In his first issue, Estrada asserts that the trial court abused its discretion by not setting aside the default judgment and granting a new trial because he satisfied each of the Craddock ² elements. We review a trial court's denial of a motion to set aside a default judgment and motion for new trial for an abuse of discretion. Huffman Asset Mgmt., LLC v. Colter, No. 05-22-00779-CV, 2023 WL 7319054, at *4 (Tex. App.—Dallas Nov. 7, 2023, pet. denied) (mem. op.) (citing Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam)). The test for abuse of discretion is whether the trial court acted arbitrarily or without reference to guiding legal principles. Id.

A defendant can prove he is entitled to a new trial after a no answer default judgment in either of two ways. MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2008, no pet.). The first is by showing service of process was invalid. Id. (citing Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006) (per curiam)). Alternatively, the defendant can establish the three Craddock elements:

(1) the defendant's failure 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) the motion for new trial sets up a meritorious defense; and

(3) the motion is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Craddock, 133 S.W.2d at 126. When a defendant satisfies each of the three Craddock elements, a trial court abuses its discretion if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926.

A defendant satisfies his burden under the first Craddock element when his factual assertions, if true, negate that his failure to answer was intentional or consciously indifferent and the plaintiff does not controvert the assertions. Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (per curiam). In determining whether there is intentional disregard or conscious indifference, the trial court examines the defendant's knowledge and acts. Perry v. Benbrooke Ridge Partners L.P., No. 05-16-01486-CV, 2018 WL 2138957, at *2 (Tex. App.—Dallas May 7, 2018, no pet.) (mem. op.). “A failure to appear is not intentional or due to conscious indifference merely because it was deliberate; rather it must also be without justification.” Id. “[S]ome excuse, although not necessarily a good one, will suffice to show that a defendant's failure to file an answer was not because the defendant did not care.” In re Marriage of Sandoval, 619 S.W.3d 716, 721 (Tex. 2021) (per curiam) (quoting Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012)). “Proof of justification—accident, mistake (including some mistakes of law), or other reasonable explanation—negates intent or conscious indifference.” Id. at 723. “In other words, the fact that an inference of conscious indifference may be drawn does not foreclose the defendant from positing a reasonable excuse for his actions.” Id.

Here, Estrada explained that it was not his intention to “not file something,” he was not sure how to file a correct answer, and he had tried to find counsel to help. However, an inability to find counsel does not automatically negate intentional or consciously indifferent conduct. Holmes v. Eiland Coffee at Canyon Creek, LLC, No. 05-22-01083-CV, 2023 WL 3836431, at *3 (Tex. App.—Dallas June 6, 2023, no pet.) (mem. op.). Estrada's explanation makes clear that he understood an answer was required, but nothing in the record indicates that he tried to file one on his own or contact either the trial court or opposing counsel in an effort to obtain additional time to do so. On this record, the trial court reasonably could have found that Estrada's explanation did not negate his conscious indifference to filing an answer before judgment. See, e.g., id. at *1, 3 (affirming denial of new trial when defendant, who argued only that he could not find counsel, did not negate a finding that his failure to answer was intentional or the result of conscious indifference); Zappavigna v. Zappavigna, No. 02-11-00472-CV, 2013 WL 1234913, at *2 (Tex. App.—Fort Worth Mar. 28, 2013, no pet.) (mem. op.) (affirming denial of new trial when party knew of trial date but did not contact court regarding her inability to attend or attempt to secure new counsel).

We conclude that Estrada failed to meet his burden to prove the first prong of the Craddock test by demonstrating that his failure to answer before judgment was due to a mistake or accident, as opposed to intentional disregard or conscious indifference, on his part.³ Accordingly, the trial court did not abuse its discretion by denying Estrada's motion for new trial. We overrule his first issue.

Damages

In his second issue, Estrada contends that the evidence is legally and factually insufficient to support the trial court's award of unliquidated damages. Specifically, he complains that appellees failed to provide any evidence of the vehicle's sales price.

In a no answer default, all alleged facts are deemed admitted except the amount of unliquidated damages. See Guardiola v. Moosa, No. 05-20-00503-CV, 2021 WL 1220694, at *3 (Tex. App.—Dallas Apr. 1, 2021, no pet.) (mem. op.) (emphasis added). “Damages are unliquidated when they cannot be accurately calculated from the factual allegations in the petition or any written instruments in the record.” Id. (quoting Sumah v. Rodriquez, No. 01-15-00813-CV, 2016 WL 4055585, at *3 n.1 (Tex. App.—Houston [1st Dist.] July 28, 2016, no pet.) (mem. op.)). “When damages are unliquidated, the trial court must hear evidence as to damages, TEX. R. CIV. P. 243; however, such damages need not be presented with testimony․ Affidavits will satisfy the evidence requirement of Rule 243.” Krawiec v. Holt, No. 05-17-00307-CV, 2018 WL 2126858, at *2 (Tex. App.—Dallas May 7, 2018, no pet.) (mem. op.) (internal citation omitted).

A defendant may challenge the legal and factual sufficiency of evidentiary support for unliquidated damages on appeal from a no answer default judgment. See Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.—Dallas 2005, no pet.). We sustain a legal sufficiency or “no evidence” challenge if the record shows one of the following: (1) a complete absence of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Huffman Asset Mgmt., 2023 WL 7319054, at *10 (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)). In reviewing the challenge, we consider the evidence in the light most favorable to the judgment and indulge every reasonable inference that supports it. City of Keller, 168 S.W.3d at 821–22. For a factual sufficiency challenge, we consider all the evidence in the record and set the adverse finding aside only if the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Fernandez v. Dunlap, No. 05-23-00765-CV, 2024 WL 3963854, at *6 (Tex. App.—Dallas Aug. 28, 2024, no pet.) (mem. op.).

Appellees' petition pleaded for “the sales price of the [v]ehicle, its post-settlement expenses incurred enforcing the [s]ettlement [a]greement and getting paid from [Estrada's] bank, and its other and incidental and consequential damages.” Appellees' motion for default judgment noted that appellees' damages were unliquidated and a hearing was required under Texas Rule of Civil Procedure 243. In an affidavit attached to the motion, appellees' counsel averred that Boss Exotics sent Estrada $15,000 and the title to the vehicle as required by the settlement agreement.

Although there was some evidence to support damages of $15,000 for Boss Exotics' payment pursuant to the settlement agreement, the trial court's default judgment order awarded damages totaling $90,000. Estrada asserts that Boss Exotics failed to present any evidence to support the additional $75,000 in damages related to the vehicle. We agree.

The settlement agreement, which was attached to appellees' petition and an affidavit in support of the motion for default judgment, states that “[Estrada] viewed an online advertisement on Boss Exotics' website for [the vehicle] at a purchase price of $79,995.00.” However, neither the motion nor the affidavit makes any mention of the actual sales price that Boss Exotics and Estrada agreed to or the balance Estrada owed on the vehicle.

At the motion for default judgment hearing, appellees' damages were mentioned only during argument by their counsel:

The damages that we are requesting is the $15,000 settlement payment that we paid pursuant to that settlement agreement. We also are seeking $75,000, which is the balance of the vehicle. And the title that was to be tendered back to us from defendant pursuant to the settlement agreement, Section 4, would have allowed us to get paid the $75,000 from the defendant's bank and then $5,856.96 in attorney's fees.

An attorney's statements generally are not evidence unless they are made under oath. See U.S. Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997). An opponent may waive the oath requirement by failing to object when he “knows or should know that an objection is necessary,” see Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam), but neither Estrada nor an attorney on his behalf was present to waive the oath requirement. See Tomes v. Thompson, No. 04-15-00821-CV, 2016 WL 5795179, at *2 (Tex. App.—San Antonio Oct. 5, 2016, no pet.) (mem. op.) (counsel's unsworn statements to court did not constitute evidence when neither opponent of testimony nor opponent's counsel was present at default judgment hearing). Even had they been present, nothing in the record indicates that the statement by appellees' counsel constituted testimony such that they would know or should know to object to it. See, e.g., Marquez v. Providence Mem'l Hosp., 57 S.W.3d 585, 593 (Tex. App.—El Paso 2001, pet. denied) (it would not have been apparent that objection was required, and therefore there was no waiver of oath requirement when counsel did not preface remarks by stating that he was making them as officer of court or refer to his argument as testimony); In re Wallingford, 64 S.W.3d 22, 25 (Tex. App.—Austin 1999, orig. proceeding) (per curiam) (same).

On this record, we conclude that appellees' counsel's unsworn statement indicating that the balance due on the vehicle was $75,000 does not constitute evidence. Because there was no evidence of the amount Estrada owed Boss Exotics for the vehicle, we further conclude that there was insufficient evidence to uphold the trial court's general award of $90,000 in unliquidated damages. We sustain Estrada's second issue.

Conclusion

We affirm the trial court's default judgment against Estrada. However, we reverse its award of damages and attorney's fees to appellees and remand for further proceedings consistent with this opinion. See Argyle Mech., 156 S.W.3d at 688 (if no evidence point sustained as to unliquidated damages resulting from no answer default judgment, appropriate disposition is remand for new trial on issue of unliquidated damages); Barker v. Eckman, 213 S.W.3d 306, 315 (Tex. 2006) (remanding for new trial on attorney's fees when damages reduced significantly).

Pedersen, III, J., dissenting.

JUDGMENT

Opinion delivered by Justice Smith. Justices Pedersen, III, and Garcia participating.

In accordance with this Court's opinion of this date, the trial court's Order Granting Plaintiff's Motion for Default Judgment is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's order awarding damages and attorney's fees to appellees BOSS EXOTICS, LLC AND RODNEY MCGAFFEY. We REMAND this cause to the trial court for further proceedings on damages and attorney's fees. In all other respects, the trial court's order is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 18th day of December, 2024.

DISSENTING OPINION

Dissenting Opinion Filed December 18, 2024

I write separately to question whether this Court has failed to heed repeated admonition by our supreme court. My colleagues in the majority defer to this Court's precedent requiring affirmance of the trial court's denial of Estrada's motion to set aside the default judgment. This Court has recently held that inability to find counsel “does not automatically negate [the existence of] intentional or consciously indifferent conduct.” Holmes v. Eiland Coffee at Canyon Creek, LLC, No. 05-22-01083-CV, 2023 WL 3836431, at *3 (Tex. App.—Dallas June 6, 2023, no pet.) (mem. op.). However, that precedent seems to me to be to be at odds with clear and repeated direction from mandatory superior authority.

A panel of this Court may not overrule a prior panel opinion. See In re I.J.N., No. 05-21-00738-CV, 2023 WL 2674079, at *2 n.2 (Tex. App.—Dallas Mar. 29, 2023, no pet.) (mem. op.) (noting we follow our own precedent and may not overrule a prior panel decision of this Court, absent an intervening change in the law by the legislature, a higher court, or this Court sitting en banc) (citing Mitschke v. Borromeo, 645 S.W.3d 251, 256 & n.8 (Tex. 2022) (a single panel of a court of appeals that has more than three justices lacks power to overrule precedent of an earlier panel of that same court)).¹ However, in my view, we need not overrule a prior panel opinion to reverse the trial court's denial of Estrada's motion to set aside the default judgment. We need only recognize that any such, or similar, precedent has already been overruled by the supreme court. A bit of historical discussion seems appropriate.

In 2008, the supreme court decided Perry v. Cohen, emphasizing that “disposing of appeals for harmless procedural defects is disfavored.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam). In that case, the trial court had dismissed a suit with prejudice after determining that the plaintiffs' amended pleadings failed to comply with an order granting defendants' special exceptions. See id. at 586. On appeal, the court of appeals held that the plaintiffs waived error as to the merits of the order sustaining special exceptions because they did not separately challenge the order on appeal, relying on an opinion of this Court, Cole v. Hall. See id. at 588; Perry v. Cohen, 272 S.W.3d 661, 665 (Tex. App.—Austin 2007) (citing Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.—Dallas 1993, writ dism'd w.o.j.) (en banc)), rev'd, 272 S.W.3d 585 (Tex. 2008). The supreme court granted a petition for review and held that the plaintiffs had preserved error by challenging the merits of the special exceptions order in the body of their appellate brief, even though they did not separately and specifically challenge the order in their notice of appeal or in the issues of their appellate brief. See Perry, 272 S.W.3d at 586. The supreme court reversed the judgment and remanded the case to the court of appeals. See id.²

More recently, the supreme court decided Horton v. Stovall. See 591 S.W.3d 567 (Tex. 2019) (per curiam). Horton was a contract-dispute case where this Court denied an appellant the opportunity to have her appeal heard because she cited documents in the appendix of her brief instead of the clerk's record. See id. at 568. We did not afford her the opportunity to rectify this oversight because we incorrectly concluded that the evidence she relied upon was outside the summary judgment record. See id. As it happened, the documents the appellant had described were a part of the summary judgment record, and a simple electronic search of the record would have shown that. See id. at 569. The supreme court held that we abused our discretion by affirming the trial court's entry of partial summary judgment based on record-citation defects. See id. at 570. The supreme court held that appellate courts “must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.” Id. at 569. Therefore, we “should have made some effort to reach the merits of Horton's appeal, because it was reasonably possible to do so.” Id. at 570. The opinion further instructed all intermediate appellate courts to reach the merits of an appeal whenever possible because “[w]hen a case ripe for decision is resolved based on a procedural technicality, judicial economy is not served.” Id.

Soon after Horton, the supreme court repeated its admonishment that appellate courts “should reach the merits of an appeal whenever reasonably possible” when it decided St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 214 (Tex. 2020) (per curiam). That case involved a dispute where a church and some of its parishioners sought injunctive relief against the chairman and certain members of the church to prevent the sale of church property. See id. at 212–13. The trial court dismissed the case without specifying if the decision was based on a lack of standing, ecclesiastical abstention, or both. Id. at 213. On appeal, the church focused solely on the standing issue in its brief. See id. This Court affirmed the dismissal because the appellants failed to challenge all grounds upon which the trial court could have granted appellees' motion. See St. John Missionary Baptist Church v. Flakes, 547 S.W.3d 311, 318 (Tex. App.—Dallas), rev'd, 595 S.W.3d 211 (Tex. 2020).

The supreme court granted review and held that the unbriefed issue of ecclesiastical abstention was intertwined with the briefed issue of standing. See St. John Missionary Baptist Church, 595 S.W.2d at 214. It noted that these issues were so inextricably linked that one could not be considered without the other, and it emphasized that we had the authority to request additional briefing to address the ecclesiastical abstention issue. See id. at 214, 215. The supreme court told us that it “hesitate[s] to turn away claims based on waiver or failure to preserve the issue.” Id. at 213. And to that end, it explained that Rule 38.1 provides that an issue statement “will be treated as covering every subsidiary question that is fairly included.” Id. at 213–14 (citing TEX. R. APP. P. 38.1(f)). As such, it reversed our judgment and remanded the case for further proceedings. See id. at 216.

As recently as this year, the supreme court again explained that appellate courts must reach the merits when reasonably possible. See In re S.V., 697 S.W.3d 659, 662 (Tex. 2024) (per curiam). In re S.V. involved a pro se litigant in a suit affecting the parent-child relationship who missed the deadline to file a notice of appeal because he mistakenly believed it was not required “until after the trial court ruled on his post-judgment motions.” Id. at 661. He had, however, timely filed a Rule 26.3 motion, seeking to extend time to file his notice of appeal, which we denied because of his “conscious delay” in filing while waiting for a ruling on his post-judgment motions. Id.; see TEX. R. APP. P. 26.3. The supreme court reversed our decision because it found that “all signs point[ed] to a genuine misunderstanding of the deadlines by a pro se litigant.” In re S.V., 697 S.W.3d at 662. It emphasized that the applicable “reasonable explanation standard” looks to “the subjective intentions of the person responsible for the missed deadline” and it reminded us that we must apply this standard in light of the general principle that “[w]e construe the Rules of Appellate Procedure liberally, so that decisions turn on substance rather than procedural technicality.” Id. Indeed, the bar is very low—“any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance.” Id. at 661. The supreme court instructed appellate courts to “ask whether the missed deadline resulted from a genuine mistake rather than from a deliberate decision to let the deadline pass” and to “construe the rules of appellate procedure liberally.” Id. at 663. I would note that the supreme court relied upon Perry v. Cohen, described above, in so stating:

Attorneys may make genuine mistakes when calculating deadlines, and when they do, Rule 26.3 provides a brief, fifteen-day reprieve. Pro se litigants unaware of or mistaken about appellate deadlines are entitled to the same treatment. Whether a party is represented or pro se, courts should ask whether the missed deadline resulted from a genuine mistake rather than from a deliberate decision to let the deadline pass. Courts of appeals applying this standard should do so in light of the general principle that “[w]e construe the Rules of Appellate Procedure liberally, so that decisions turn on substance rather than procedural technicality.” Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004). Whether the question is compliance with Rule 26.3 or with any other procedural requirement, “appellate courts should reach the merits of an appeal whenever reasonably possible.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008).

Id. at 662 (footnotes omitted and emphasis added).

Most recently, the supreme court reiterated these principles to us in Verhalen v. Akhtar, a personal injury lawsuit that involved two defendants. 699 S.W.3d 303, 304 (Tex. 2024) (per curiam). The defendants initially filed separate no-evidence motions for summary judgment but later amended their approach, consolidating the motions for a joint hearing, which effectively accelerated the response deadline by one day. See id. The plaintiffs submitted their response one day past this adjusted deadline. See id. Concurrently, they submitted a verified motion for leave to file the late response, supported by an affidavit from counsel explaining that there had been a calendaring error. See id. Nonetheless, the trial court denied the motion for leave, emphasizing that “we kind of do have a reputation around here for being sticklers for the rules,” and proceeded to grant both defendants' motions for summary judgment. Id. at 305. We affirmed the trial court's decision, finding that the plaintiffs had not sufficiently established good cause and remarking that “they did not move for a continuance until the hearing, though they would have known one was required as soon as they recognized the missed deadline.” Id.

The supreme court reversed. See id. at 307. It held that the plaintiffs' uncontroverted factual assertions—that counsel acted to prepare and submit responses as soon as counsel discovered the calendaring error—revealed a lack of intentional or consciously indifferent conduct. See id. at 306. Moreover, and particularly relevant here, it said that requesting a continuance is not an element of the good-cause standard, nor is it even necessary when a response is filed just one day late and unlikely to cause any real prejudice to the moving parties. See id. The supreme court concluded that the plaintiffs had demonstrated good cause to file an untimely response. See id. at 307. It instructed that “[w]hen a litigant demonstrates good cause to file a late response to a motion for summary judgment, the trial court must allow the filing” and remanded the case to this Court for further proceedings. See id.

The majority implies that if Estrada had either attempted to file an answer pro se or communicated with his adversary's counsel to obtain more time to file his answer, he would have satisfied the first prong of the Craddock test, demonstrating that his failure to answer was not due to intentional disregard or conscious indifference. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm'n Op.] 1939). But this interpretation sets too stringent a standard, deciding this case based on harmless procedural defects rather than the merits, contrary to supreme court precedent. Estrada's testimony clearly indicates that he lacked the knowledge necessary to file an answer independently and that he was actively seeking legal representation to accomplish this. In my view, it is understandable that Estrada would be apprehensive about communicating with the attorneys who represent an adverse party, and that his failure to do so does not mean he acted with intentional disregard or conscious indifference. And while the absence of counsel alone is not per se “good cause for a continuance,” I believe that Estrada's efforts to retain counsel, although ultimately unsuccessful, do support a finding that Estrada did not act with intentional disregard or conscious indifference. See TEX. R. CIV. P. 253 (“[A]bsence of counsel will not be good cause for a continuance or postponement of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of judge to be stated on the record.”). The trial court, and this Court, in light of Estrada's circumstances, could and should have exercised discretion to find good cause. See id.

If failing to separately identify a clearly briefed issue (Perry), citing to the appendix as opposed to the official record (Horton), identifying only one issue inextricably linked to another (St. John), waiting for a ruling on post-trial motions (In re S.V.), and filing an MSJ response one day late (Verhalen) are “reasonable explanation[s],” why should the inability to find counsel not be? Because we have said so, according to the majority. See Eiland Coffee at Canyon Creek, LLC, 2023 WL 3836431, at *1–3. In my view, we were incorrect then just as the majority is incorrect now. These cases fall under the supreme court's repeated admonition not to decide cases based on compliance with procedural technicalities when the merits can reasonably be reached. See In re S.V., 697 S.W.3d at 662 (explaining that this admonition holds true “[w]hether the question is compliance with Rule 26.3 or with any other procedural requirement.” (emphasis added) (citing Perry, 272 S.W.3d at 587)).

It seems to me that the supreme court has been clear: any excuse short of a rejection of the jurisdictional competence of a Texas court (deliberate or intentional noncompliance) constitutes good cause. In other words, as long as a litigant does not claim to be beyond a trial court's authority, harmless mistakes will not be dispositive and should satisfy the first element of the Craddock test. This makes sense to me, and I endorse the supreme court's commitment to reaching the merits whenever possible and the liberality in excusing the application of arbitrary deadlines absent evidence of willfulness or actual prejudice. Federal courts have limited jurisdiction, which means that Texas state courts are courts of last resort to all those whose grievances lack eligibility for federal resolution. “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” TEX. CONST. art. I, § 13.

I respectfully dissent.

FOOTNOTES

1.   Mauricio Estrada v. Boss Exotics, LLC d/b/a Boss Exotics, Rodney James McGaffey, and John Does 1-10, Cause Number DC-22-01740, filed in the 95th District Court of Dallas, County.

2.   Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm'n Op.] 1939).

3.   Having concluded that Estrada did not satisfy one of the Craddock elements, we need not reach his arguments on the remaining elements. See TEX. R. APP. P. 47.1.

1.   The supreme court has explained that a single panel of a three-justice court of appeals may overrule a prior panel opinion of that court, as follows:The Sixth, Eighth, Tenth, and Twelfth Courts of Appeals each has only three members. With respect to precedent, at least, there is essentially no difference between sitting en banc or as a panel.Mitschke, 645 S.W.3d at 256 n.8.

2.   The supreme court in Perry stated,We initially note that the shareholders were not required to state in their notice of appeal that they were challenging the interlocutory order granting special exceptions. They were required only to state the date of the judgment or order appealed from—in this instance the order dismissing their suit. TEX. R. APP. P. 25.1(d)(2). Next, we note that disposing of appeals for harmless procedural defects is disfavored. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). That policy is reflected in Texas Rule of Appellate Procedure 38.1(f) which provides that the statement of an issue will be treated as covering every subsidiary question that is fairly included. Appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver. See El Paso Natural Gas v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999). Simply stated, appellate courts should reach the merits of an appeal whenever reasonably possible. See Verburgt, 959 S.W.2d at 616.The court of appeals relied on Cole v. Hall, 864 S.W.2d 563 (Tex. App.—Dallas 1993, writ dism'd w.o.j.), to conclude that the shareholders waived any challenge to the trial court's special exceptions order. In Cole, the court held that for the merits of a trial court's order sustaining special exceptions and dismissing a suit to be reviewed on appeal, the plaintiff must challenge both the order granting special exceptions and the order of dismissal. 864 S.W.2d at 566–67. We agree with that determination. Both the final order of dismissal and the interlocutory order granting special exceptions must be challenged in order for the merits of the order granting special exceptions to be reviewed. We disagree with how the court of appeals applied the rule in this case.Perry, 272 S.W.3d. at 587–88.

CRAIG SMITH JUSTICE