                                      NO. 12-12-00285-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

2008 MERCEDES-BENZ CLS550                       §      APPEAL FROM THE 114TH
(RESPONDENT: LATRICE
WHITAKER, ROBERT WHITAKER),
APPELLANTS
                                                §      JUDICIAL DISTRICT COURT
V.

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Latrice and Robert Whitaker appeal the trial court‟s default judgment forfeiting their
interest in a 2008 Mercedes-Benz CLS550 motor vehicle. They raise three issues on appeal.
We affirm.


                                          BACKGROUND

       On May 9, 2012, the State filed a notice of seizure and intended forfeiture of a 2008
Mercedes-Benz CLS550 motor vehicle pursuant to Chapter 59 of the Texas Code of Criminal
Procedure. The State alleged that the vehicle was contraband as defined by article 59.01 of the
code of criminal procedure and subject to forfeiture because it was used or intended to be used in
the commission of certain felonies, it was the proceeds gained from the commission of a felony
identified in article 59.01, or it was acquired with proceeds gained from the commission of a
felony identified in article 59.01.
       The Whitakers did not respond to the State‟s notice, and the trial court signed a default
judgment in favor of the State on July 9, 2012. On August 6, 2012, the trial court signed a
judgment nunc pro tunc to correct the named agency entitled to the forfeited vehicle. The
Whitakers filed timely motions for new trial, which were ultimately denied.             This appeal
followed.
                     MOTION FOR NEW TRIAL AFTER DEFAULT JUDGMENT
       In three separate issues, the Whitakers argue that the trial court erred in granting the
State‟s motion for default judgment because Latrice is “an innocent owner,” the vehicle “[i]s not
contraband,” forfeiture of the vehicle “violates the Excessive Fines Clause of the Eighth
Amendment,” and Robert was not convicted of a felony. The State contends that the trial court
did not abuse its discretion by denying the Whitakers‟ motions for new trial.
Applicable Law
       Generally, a motion for new trial is not required before an appeal can be taken. See TEX.
R. CIV. P. 324(a). But a motion for new trial is a prerequisite to a complaint on appeal regarding
a trial court‟s failure to set aside a default judgment because evidence must be heard on the issue.
See TEX. R. CIV. P. 324(b)(1); Dir., State Employees Workers’ Compensation Div. v. Evans, 889
S.W.2d 266, 268 (Tex. 1994); see also Barrett v. Westover Park Cmty. Ass’n, Inc., No.
01-10-01112-CV, 2012 WL 682342, at *2 (Tex. App.—Houston [1st Dist.] Mar. 1, 2012, no
pet.) (mem. op.).
       The rules governing motions for new trial do not explicitly require the filing of affidavits
or verifications with the motion. See TEX. R. CIV. P. 320, 321; see also TEX. R. CIV. P. 327
(implying that affidavits are required when grounds for new trial are based on jury misconduct).
But when a motion for new trial following the entry of a default judgment contains factual
assertions outside the record, caselaw requires that it be supported by affidavit or other evidence.
See Evans, 889 S.W.2d at 268 (“It is sufficient that the affidavits are attached to the motion for
new trial and are part of the record.”); Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966).
Otherwise, the trial court has no basis to grant a defendant‟s request for a new trial once a default
judgment has been signed. See, e.g., Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012)
(“[T]he critical question in any default judgment [is]: „Why did the defendant not appear?‟”).
Thus, assertions of a meritorious defense must “allege facts that in law would constitute a
defense and must support them by affidavits or other evidence proving prima facie the existence
of such defense.” 5 Roy W. McDonald & Elaine A. Carlson, Texas Civil Practice § 28:21 (2d
ed.1999); see also Ivy, 407 S.W.2d at 214.




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         We review a trial court‟s ruling on a motion for new trial for an abuse of discretion.
Evans, 889 S.W.2d at 268. A default judgment should be set aside and a new trial granted if (1)
the failure to answer was not intentional or the result of conscious indifference but was due to a
mistake or accident, (2) the defendant sets up a meritorious defense, and (3) the motion is filed at
such time that granting a new trial would not result in delay or otherwise injure the plaintiff. In
re R.R., 209 S.W.3d 112, 114-15 (Tex. 2006) (citing Craddock v. Sunshine Bus Lines, Inc., 133
S.W.2d 124, 126 (Tex. 1939)).
Discussion
         On August 8, 2012, Latrice filed her original motion for new trial and Robert filed his
amended motion for new trial. The motions alleged facts relating to the three elements of the
Craddock test and contained verifications signed by their two attorneys that stated the following:


                  I am the attorney of record for the Respondent . . . in the above and entitled
                  cause; I have read the foregoing Respondent‟s . . . Motion for New Trial and
                  state that every statement contained therein is true and correct to the best of my
                  knowledge and belief.


The motions contained no other attachments or affidavits. The State objected to the attorneys‟
verifications during the hearing on the Whitakers‟ motions for new trial, contending that they
were not based on personal knowledge.1 Trial counsel argued that “the only thing that must be
proven in the motion for new trial or an affidavit is concerned is the defense” because it was
undisputed that there was “no service” on the Whitakers.                       Trial counsel did not call any
witnesses during the hearing, and relied solely on their verifications to support the motions for
new trial. The trial court struck the attorneys‟ verifications for lack of personal knowledge, and
the Whitakers do not challenge that ruling on appeal.
         The Whitakers assert in their motions for new trial that they have a meritorious defense to
the forfeiture action, but their assertions are not supported by any evidence. See TEX. R. CIV. P.
324(b)(1); Ivy, 407 S.W.2d at 214. Therefore, the trial court did not abuse its discretion by
denying their motions for new trial. See Evans, 889 S.W.2d at 268; see also Cunningham v.
Gaines, 176 S.W. 148, 151 (Tex. Civ. App.—Galveston 1915, writ ref‟d) (holding that trial court
did not err in denying motion for new trial when no affidavit was attached to motion for new trial

         1
           The State referred to the verifications as “affidavits,” but the record shows that the parties and the court
were referring to the two attorneys‟ verifications.


                                                          3
to support the allegations contained therein) (citations omitted). Accordingly, we overrule the
Whitakers‟ three issues on appeal. See TEX. R. APP. P. 47.1.


                                                    DISPOSITION

         Having overruled the Whitakers‟ three issues on appeal, we affirm the judgment of the
trial court.

                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered March 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




                                                           4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 31, 2014


                                          NO. 12-12-00285-CV


                        2008 MERCEDES-BENZ CLS550
            (RESPONDENT: LATRICE WHITAKER, ROBERT WHITAKER),
                                  Appellants
                                     V.
                            THE STATE OF TEXAS,
                                  Appellee


                                 Appeal from the 114th District Court
                          of Smith County, Texas (Tr.Ct.No. 12-1362-B)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellants, LATRICE WHITAKER AND ROBERT WHITAKER, for which
execution may issue, and that this decision be certified to the court below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.
