Affirmed and Memorandum Opinion filed August 15, 2013.




                                     In The

                         Fourteenth Court of Appeals


                              NO. 14-12-00487-CV


                     MATTHEW R. PHILLIPS, Appellant
                                        V.

                         DISCOVER BANK, Appellee


                  On Appeal from County Court at Law No. 4
                            Harris County, Texas
                       Trial Court Cause No. 1005673


                 MEMORANDUM                     OPINION


      Appellant Matthew R. Phillips appeals the denial of his motion for new trial
following a default judgment entered against him. Phillips contends the trial court
abused its discretion by denying his motion for new trial and not setting aside the
default judgment because he met the requirements of Craddock v. Sunshine Bus
Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939), for setting aside a default
judgment. We affirm.
                                           Background

        Appellee Discover Bank sued Phillips for breach of contract on December 8,
2011. Discover Bank alleged that Phillips had failed to pay a current balance of
$17,655.83 as required by his card member agreement. Phillips does not dispute
that he was properly served on December 23, 2011. Discover Bank filed a motion
for default judgment on February 17, 2012, and the trial court signed a default
judgment on February 21, 2012. Phillips filed his original answer on February 23,
2012. Phillips filed a motion for new trial on March 2, 2012, asking the trial court
to set aside the default judgment and grant him a new trial because he satisfied the
requirements of Craddock. Discover Bank filed a response to Phillips’s motion for
new trial on March 15, 2012. The trial court signed an order denying Phillips’s
motion for new trial on March 15, 2012.1 Phillips filed a timely notice of appeal.

                                              Analysis

        In his sole issue, Phillips argues that the trial court abused its discretion by
denying his motion for new trial and not setting aside the default judgment because
(1) his failure to answer was not intentional or the result of conscious indifference;
(2) he “has a meritorious defense to the underlying lawsuit;” and (3) a new trial
would not cause delay or cause undue prejudice to Discover Bank’s case. See
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (per curiam)
(citing Craddock, 133 S.W.2d at 126). We review a trial court’s refusal to grant a
motion for new trial for abuse of discretion. Id. at 926. “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.” Id.

        Because Phillips does not satisfy the second prong of the Craddock test, we
        1
         Phillips states in his brief that the trial court denied his motion for new trial after an oral
hearing. Our record does not contain a hearing record.

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will address it first. The second prong of the Craddock test requires Phillips to “set
up” a meritorious defense. Id. at 927. “This does not mean that the motion should
be granted if it merely [a]lleges that the defendant ‘has a meritorious defense.’”
Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). “Rather, the motion sets up a
meritorious defense if it alleges facts which in law would constitute a defense to
the plaintiff’s cause of action and is supported by affidavits or other evidence
providing prima facie proof that the defendant has such a defense.” Dolgencorp,
288 S.W.3d at 928 (citing Ivy, 407 S.W.2d at 214).

       Phillips’s motion for new trial asserts only that he believes a meritorious
defense “can be established.” The motion does not allege any facts that would
establish the existence of a meritorious defense, nor is the motion supported by
affidavits or other evidence providing prima facie proof that Phillips has a defense.
The motion states: “The Court should grant a new trial because Defendant Phillips
believes that a meritorious defense can be established. If a new trial is granted,
evidence will likely be produced in discovery which would relieve Defendant
Phillips of liability.”

       Because Phillips failed to set up a meritorious defense in his motion for new
trial, the trial court did not abuse its discretion by denying the motion.
Accordingly, we overrule Phillips’s sole issue.

                                    Conclusion

       We affirm the trial court’s judgment.


                                       /s/       William J. Boyce
                                                 Justice


Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.

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