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Court of Appeals of Texas, San Antonio.

Rene SAENZ and Mae Saenz, Appellants v. Ramon SAENZ, Jr., Javier Saenz, and Alvaro Hinojosa, Appellees

No. 04-16-00588-CV

Decided: May 31, 2017

Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice


Rene and Mae Saenz appeal a post-answer default decree of partition and final judgment nunc pro tunc. The sole issue presented on appeal is whether the trial court abused its discretion in denying the appellants' motion for new trial. We affirm the trial court's judgment.


The appellees filed the underlying lawsuit seeking to partition certain real property jointly owned by the appellees and appellant Rene Saenz. The appellees also sought reimbursement for improvements they made to the property and a disproportionate division of the property to be partitioned based on the appellants' failure to proportionately share hunting revenues they received and their overgrazing of a portion of the property.

Although the appellants filed an answer, they did not appear at trial. As a result a post-answer default judgment was entered. In the judgment, the trial court found the property was susceptible to a fair and equitable partitioning in kind and appointed commissioners to make the partition. The trial court also found appellees Ramon Saenz, Jr. and Javier Saenz incurred $174,833.65 in improving, maintaining, and preserving the property and ordered appellant Rene Saenz to reimburse them a proportionate share of the expenses. Finally, the trial court found the following amounts would be awarded to the appellants through a disproportionate division of the property to be partitioned: (1) $48,000.00 in hunting revenue appellant Rene Saenz received for leasing a portion of the property which was not shared with the appellees; (2) $83,200.00 in damages resulting from appellant Rene Saenz overgrazing a portion of the property; and (3) $2,193.00 incurred in paying appellant Rene Saenz's 1/3 share of the property surveying expense.

The appellants timely filed a motion for new trial, and a hearing was held on the motion. The trial court, however, allowed the motion to be overruled by operation of law.


In Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939), the Texas Supreme Court held a default judgment should be set aside and a new trial granted when the defaulting party establishes: (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. A trial court's refusal to grant a motion for new trial is reviewed under an abuse of discretion standard. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Weech v. Baptist Health Sys., 392 S.W.3d 821, 824 (Tex. App.—San Antonio 2012, no pet.). “When a defaulting party moving for new trial meets all three elements of the Craddock test, then a trial court abuses its discretion if it fails to grant a new trial.” Dolgencorp of Tex., Inc., 288 S.W.3d at 926.


Although the appellants argue they satisfied all three Craddock requirements, we conclude their failure to set up a meritorious defense is dispositive. A motion for new trial does not set up a meritorious defense if “it merely alleges that the defendant has a meritorious defense.” Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). Instead, the movant “must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits of other evidence proving prima facie that the defendant has such [a] meritorious defense.” Id. “This much is necessary to prevent the reopening of cases to try out fictitious or unmeritorious defenses.” Id. “Therefore, ‘conclusory allegations are insufficient.’ ” Action Powersports, Inc. v. 1STEL, Inc., 500 S.W.3d 632, 640 (Tex. App.—Texarkana 2016, no pet.) (quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992)).

In this case, the appellants' motion alleged the appellees received hunting lease funds of approximately $16,400 each year for approximately fifteen years which were not shared with the appellants.1 Although the appellants attached Rene Saenz's affidavit to their motion, his affidavit only addressed his inability to attend the trial setting because he was hospitalized. His affidavit does not allege any facts that would constitute a defense to the causes of action asserted by the appellees. Similarly, at the hearing on the motion for new trial, the only evidence regarding an alleged defense was Rene Saenz's responding “yes” when his attorney asked him if he believed he had “some defenses or some legitimate claims.” Because appellants failed to provide affidavits or other evidence proving prima facie that they have a meritorious defense, they failed to satisfy the second element of Craddock. Accordingly, the trial court did not abuse its discretion in allowing the motion for new trial to be overruled by operation of law.


The trial court's judgment is affirmed.


1.   Although not directly stated in the motion, it appears appellants contend these funds would entitle them to a disproportionate division of the property to be partitioned.

Marialyn Barnard, Justice

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