                         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

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      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.”

                                         2
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,

                                          4
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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