                                     NUMBER 13-05-585-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

RICHARD QUINONES AND
YOLANDA MURPHY,                                                                             Appellants,

                                                      v.

STERLING JEWELERS, INC.
D/B/A KAY JEWELERS,                                                                           Appellee.


   On appeal from the 148th District Court of Nueces County, Texas.


                               MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Benavides
                Memorandum Opinion by Justice Garza
        Appellee, Sterling Jewelers d/b/a Kay Jewelers (“Sterling”),1 sued appellants,

Richard Quinones and his sister Yolanda Murphy, for a declaratory judgment that a

diamond ring purchased by Quinones from Sterling in 1995, which remained in Sterling’s

possession since the date of purchase, was abandoned and belonged to Sterling. By



          1
            Appellants incorrectly style the nam e of the appellee as “Sterling Jewelers a/k/a Kay’s Jewelers.”
W e will use the actual nam e of the appellee, “Sterling Jewelers d/b/a Kay Jewelers,” which was also the nam e
used to refer to the plaintiff throughout the trial court proceedings.
fourteen issues, appellants challenge a default judgment entered in favor of Sterling and

the denial of appellants’ motion for new trial. For purposes of organization, appellants’

issues will be reordered, addressed as two, and referred to numerically as follows: (1) the

trial court erred in denying appellants’ motion for new trial; and (2) the trial court erred in

granting a default judgment awarding declaratory relief and attorney’s fees to Sterling. We

affirm.

                             I. FACTUAL AND PROCEDURAL BACKGROUND

          In 1995, Quinones purchased diamonds from Sterling’s retail store at the Padre

Staples Mall in Corpus Christi. Quinones also purchased a mounting for the diamonds

from the same store in March 1995, and he left the diamonds and the mounting at the

store for repairs.2 It is undisputed that Quinones paid in full for the ring. Sterling alleged

that it tried to contact Quinones several times by mail and telephone over the course of ten

years in an attempt to get Quinones to come to the store to claim the ring, but that

Quinones did not respond to these efforts. Quinones alleged that he left the ring with

Sterling for an appraisal which he claims was never provided. Quinones admitted,

however, that he had made no contact with Sterling since 2001.

          Sterling also alleged that, for insurance reasons, it was unable to store the ring in

its Corpus Christi location and was forced instead to send the ring to its home office for

storage. Sterling further contended that, at one point, Murphy promised to come into the

store either with proof that she had a legal interest in the ring or with Quinones to retrieve

the ring, but Murphy did not keep any appointment to retrieve the ring. Murphy denied

these allegations. Sterling claimed it had incurred additional mailing and insurance costs

as a result of Murphy’s alleged promise. It was undisputed, however, that the ring has

remained in Sterling’s custody since the 1995 purchase date.



        2
          Although Quinones initially purchased diam onds and a m ounting from Sterling, at som e point in tim e
while in the custody of Sterling, the diam onds and the m ounting were com bined to form a ring. For
convenience, we will refer to the diam onds and the m ounting, whether separate or com bined, as the “ring.”
                                                       2
        On October 1, 2004, Sterling filed its petition for declaratory relief, seeking (1) a

declaration that the ring was abandoned by appellants pursuant to section 72.101(a) of the

Texas Property Code, and (2) attorneys’ fees from Quinones and Murphy.3 See TEX .

PROP. CODE ANN . § 72.101(a) (Vernon Supp. 2007); TEX . CIV. PRAC . & REM . CODE ANN . §§

37.001-.011 (Vernon Supp. 2007).

        Murphy was served with process at her residence in Corpus Christi, but she failed

to file an answer. Quinones was served and filed his original answer pro se on February

17, 2005, denying all allegations set forth in Sterling’s petition for declaratory relief. At the

hearing on appellants’ motion for new trial, Quinones acknowledged that he received a

letter from Bertha Roldan, the court coordinator for the trial court, dated April 5, 2005. This

letter notified Quinones of a docket control conference to be held by telephone conference

call on April 12, 2005, at 9:30 a.m. Quinones called Roldan prior to the time of the

conference.4 According to an affidavit signed by Roldan, Quinones called Roldan on April

12, 2005, at which point Roldan informed trial counsel for both Quinones and Sterling that

a bench trial had been scheduled for May 31, 2005, at 1:30 p.m. Quinones denied that he

was advised of the bench trial date.

        On May 31, 2005, at the time set for trial, neither Quinones nor Murphy appeared.5

The trial court heard testimony from Ruben Barrera, the manager of the store where the

ring was purchased. Barrera identified a photograph of the ring and testified that it is worth

between twenty-five and thirty thousand dollars. Sterling presented to the trial court a


         3
           Sterling’s original petition for declaratory relief also included the following requests: (1) actual
dam ages for the storage and transportation of the ring, including insurance fees; (2) pre-judgm ent and post-
judgm ent interest; and (3) court costs. However, Sterling did not present evidence on these claim s at trial and
did not include any provision for relief on these claim s in its proposed default judgm ent. Sterling therefore
abandoned these claim s for purposes of this appeal. See T EX . R. A PP . P. 33.1 (stating that, to preserve an
issue for appellate review, an appellant m ust have m ade a com plaint to the trial court by a tim ely request,
objection or m otion).
        4
          Quinones alleged that he called Roldan “a few days before the 12th” but that he did not talk to her
on April 12th.
        5
          Sterling’s counsel asserted that she attem pted to contact Quinones via telephone on the date of the
bench trial, but Quinones’s telephone was disconnected.
                                                       3
proposed “Final Default Judgment” against Quinones and Murphy, which the trial court

signed. The final default judgment stated in relevant part:

             The Court further FINDS and ORDERS that the ring in question is
       abandoned pursuant to Texas Property Code § 72.101(a). The Court further
       FINDS and ORDERS that Plaintiff, STERLING JEWELERS, INC. D/B/A KAY
       JEWELERS, has sole legal interest in and rights to the ring in question and
       may dispose of the ring at its discretion.

               The Court ORDERS that Plaintiff recover damages from Defendants
       for attorney fees and court costs.

              Plaintiff requested attorney fees based on Texas Civil Practice &
       Remedies Code § 37.009. Plaintiff offered evidence at trial proving
       reasonable and necessary attorney fees in the amount of $1400. The Court
       orders Defendants to pay Plaintiff $1400 in attorney fees.

       Quinones and Murphy timely filed a motion for new trial on June 28, 2005, and a

hearing was held on that motion on August 17, 2005. The trial court denied the motion for

new trial on September 13, 2005. This appeal ensued.

                                        II. DISCUSSION

                                  A. Motion for New Trial

       Appellants assert by their first issue that the trial court erred in denying their motion

for new trial. We disagree.

       We review a trial court’s denial of a motion for new trial for abuse of discretion. In

the Interest of R.R., 209 S.W.3d 112, 114 (Tex. 2007). A trial court should set aside a

default judgment and grant a new trial if: (1) the failure to appear was not intentional or the

result of conscious indifference but rather was due to accident or mistake; (2) the

defendant sets up a meritorious defense; and (3) the motion for new trial is filed when it

would not cause delay or otherwise injure the prevailing party. Craddock v. Sunshine Bus

Lines, 133 S.W.2d 124, 126 (Tex. 1939); Hahn v. Whiting Petroleum Corp., 171 S.W.3d

307, 310 (Tex. App.–Corpus Christi 2005, no pet.). This rule is applicable alike to motions

for new trial which seek to set aside default judgments entered upon a failure of a

defendant to file an answer, and those entered upon a defendant’s post-answer failure to

appear for trial. See Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966).
                                             4
         Here, Roldan provided affidavit testimony that she notified Quinones of the trial date

via telephone on April 12, 2005. Although appellants now claim that Roldan’s affidavit is

“hearsay and circumspect,” they did not object to the affidavit when it was admitted into

evidence at the hearing on their motion for new trial. Therefore, they have waived this

issue on appeal. See TEX . R. APP. P. 33.1.

         Although Quinones denied that Roldan notified him of the trial date, it was not an

abuse of discretion for the trial court, as the trier of fact, to determine that Roldan’s affidavit

testimony was credible while the testimony of Quinones to the contrary was not.6 See

Kaiser Found. Health Plan of Tex. v. Bridewell, 946 S.W.2d 642, 646 (Tex. App.–Waco

1997, orig. proceeding) (per curiam) (stating that, to find an abuse of discretion, the

reviewing court “must determine that the facts and circumstances presented extinguish any

discretion [or choice] in the matter.”).

         With respect to Murphy, the uncontroverted evidence established that she was

served with Sterling’s petition and was aware of her responsibility to file an answer, yet she

did not do so.7 Because she failed to file an answer, neither Sterling nor the trial court

         6
           W e have previously held that, “[a]lthough a court which holds an evidentiary hearing and acts as the
finder of fact is owed special deference because of its unique position to hear live testim ony and resolve
conflicts in the evidence,” a court that issues findings based on “a cold record of deposition testim ony,
affidavits, and other evidence” is in “virtually the sam e position as the appellate court that reviews its findings”
and so it is “unclear why the trial court’s findings should be given any special deference” in those
circum stances. Villagomez v. Rockwood Specialties, Inc., 210 S.W .3d 720, 726-27 (Tex. App.–Corpus Christi
2006, pet. denied). Here, however, the trial court based its decision on m ore than just a “cold record”; it heard
live testim ony from Quinones and Murphy at the hearing on their m otion for new trial. Thus, its findings are
entitled to the “special deference” norm ally accorded to findings issued by a trier of fact. See id. at 727.
         7
             Murphy testified as follows at the hearing on appellant’s m otion for new trial:

         Q.         Ms. Murphy, when you got the lawsuit, you went to attorney Jim Clancy here in town,
                    didn’t you?

         A.         Yes, I did.

         Q.         And you knew that the proper response to a lawsuit is to file an answer, correct?

         A.         Yes.

         Q.         And you did not do that, correct?

         A.         No. . . .

         Q.         W hy did you not file an answer to the lawsuit?
                                                          5
coordinator were required to advise Murphy of the trial date.8 Long v. McDermott, 813

S.W.2d 622, 624 (Tex. App.–Houston [1st Dist.] 1991, no writ).

        The evidence established that the appellants’ failure to appear for trial was either

intentional or the result of conscious indifference. Appellants therefore failed to establish

the first element under Craddock, and so the trial court did not abuse its discretion in

denying appellants’ motion for new trial. See Craddock, 133 S.W.2d at 126. Accordingly,

we overrule appellants’ first issue.

                                          B. Default Judgment

        By their second issue, appellants allege that the trial court erred in awarding a

default judgment granting declaratory relief and attorney’s fees to Sterling. In light of our

conclusion that appellants have failed to meet the first element of the Craddock test, we

do not reach the issue of whether the final default judgment was proper on the merits.9

See TEX . R. APP. P. 47.1. Further, appellants have provided no statutory or judicial

authority indicating that we may reverse a trial court’s default judgment without their

establishing the first element of the Craddock test. To the extent appellants argue that we

may vacate the default judgment on grounds other than those elucidated in Craddock, that


        A.       Ignorance, I guess.

        Q.       Ignorance of what? You conferred with Jim Clancy, right?

        A.       Referring to m y brother, because it wasn’t m y ring. W hy should I have been sued?
                 So I assum ed I didn’t have to do anything.

        Q.       So you ignored the fact that you had been sued and served with citation?

        A.       I guess so.


        8
          It is not clear from the record whether Murphy ever had any legal interest in the ring. However, the
record clearly reflects that Murphy failed to file an answer despite being properly served.
        9
          W e note that although relief was purportedly granted in the final default judgm ent pursuant to section
72.101(a) of the Texas Property Code, at no tim e did Sterling allege or produce any evidence that it com plied
with the requirem ents of chapter 74 of the property code, such as filing a report with and delivering the ring
to the Texas Com ptroller of Public Accounts. See T EX . P R O P . C OD E A N N . §§ 72.101(a), 74.101(a), 74.301
(Vernon Supp. 2007). These actions would have been necessary if in fact the ring was abandoned under
section 72.101(a). See T EX . P R O P . C OD E A N N . §§ 72.101(a), 74.101(a), 74.301. Even so, because the
appellants have not excused their absence at trial under Craddock, we do not reach the m erits of the final
default judgm ent. See Craddock v. Sunshine Bus Lines, 133 S.W .2d 124, 126 (Tex. 1939).
                                                        6
issue is inadequately briefed, and it is therefore waived. See TEX . R. APP. P. 38.1(h). We

overrule appellants’ second issue.

                                      III. CONCLUSION

       We affirm the trial court’s final default judgment and its denial of appellants’ motion

for new trial.


                                                  __________________________
                                                  DORI CONTRERAS GARZA,
                                                  Justice

Memorandum Opinion delivered and
filed this the 20th day of March, 2008.




                                              7
