Affirmed and Memorandum Opinion filed April 23, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00468-CV

                          DEXTER EVANS, Appellant
                                         V.

          EDGAR LINARES AND CLAUDIA BONILLA, Appellees

             On Appeal from the County Civil Court at Law No. 1
                           Harris County, Texas
                      Trial Court Cause No. 1045345

                 MEMORANDUM                      OPINION


      Appellant Dexter Evans appealed a judgment of eviction against him by the
Justice Court, but failed to file an answer or appear for trial de novo in the County
Court. The County Court accordingly granted a default judgment. In his appeal to
this court, Evans makes various arguments challenging the default judgment, but
his arguments are either waived or incorrect. We affirm.
                                            BACKGROUND

       Appellees Edgar Linares and Claudia Bonilla filed a forcible-detainer action
against Evans in the Justice Court of Harris County, Precinct One, Place One. The
case was tried to a jury, and the jury found that appellees had the superior right to
possession of the premises. Accordingly, the Justice Court signed a final judgment
in favor of appellees.

       Evans then appealed the judgment, which was assigned to the County Civil
Court at Law Number One of Harris County for trial de novo.1 On April 14, 2014,
the County Court signed a default judgment against Evans, stating that neither
Evans nor his attorney appeared for trial and that Evans did not file an answer. The
County Court therefore dismissed Evans’ appeal and affirmed the judgment of the
Justice Court.2 On May 13, 2014, the County Court signed an amended judgment
reflecting a clerical correction, but which otherwise was substantively identical to
the April judgment.

       Following the County Court’s issuance of the amended judgment, Evans’
attorney filed a motion to withdraw on June 6, 2014, citing as grounds that Evans
declined to pay his attorney’s fees. The County Court granted the motion to
withdraw on June 9, 2014. On June 13, 2014, Evans filed pro se a notice of appeal.




       1
           See Tex. R. Civ. P. 510.10(c).
       2
           See Tex. R. Civ. P. 510.12 (“An eviction case appealed to a county court will be subject
to trial at any time after the expiration of 8 days after the date the transcript is filed in the county
court. . . . If the defendant made no answer in writing in the justice court and fails to file a
written answer within 8 days after the transcript is filed in the county court, the allegations of the
complaint may be taken as admitted and judgment by default may be entered accordingly.”).

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                                           ANALYSIS

       With his appeal, Evans seeks to reverse the no-answer default judgment
granted against him by the trial court.3 “[T]he non-answering party in a no-answer
default judgment is said to have admitted both the truth of facts set out in the
petition and the defendant’s liability on any cause of action properly alleged by
those facts.” Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183
(Tex. 2012). A trial court is required to set aside such a default judgment, however,
if a defendant satisfies the three-factor test established in Craddock v. Sunshine
Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939)—namely: (1) the defendant’s failure
to appear was not intentional or the result of conscious indifference, but due to a
mistake or accident; (2) the defendant has a meritorious defense; and (3) granting a
new trial will not cause delay or an injury to the plaintiff. Milestone Operating,
Inc. v. ExxonMobile Corp., 388 S.W.3d 307, 309 (Tex. 2012) (per curiam); Dodd
v. Savino, 426 S.W.3d 275, 288 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(subs. op.). Because this is a direct appeal from the grant of a default judgment,
Evans is required to satisfy the Craddock factors to be entitled to relief. Barrett v.
Westover Park Cmty. Ass’n, Inc., No. 01-10-01112-CV, 2012 WL 682342, *2
(Tex. App.—Houston [1st Dist.] Mar. 1, 2012, no pet.) (mem. op.); Massey v.
Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.—Houston [1st Dist.] 2000,
pet. denied); see also Mamou v. Sias, No. 14-10-01154-CV, 2011 WL 2803437, *1
(Tex. App.—Houston [14th Dist.] July 19, 2011, no pet.) (mem. op.).



       3
         Evans nominally presents four issues in his brief, but he makes several other arguments
not within the scope of the stated issues. Cf. Tex. R. App. P. 38.1(f) (providing that the
“statement of an issue or point will be treated as covering every subsidiary question that is fairly
included”). For purposes of this appeal, we will consider Evans’ brief as presenting a single issue
challenging the County Court’s grant of a default judgment, and we will address Evans’
individual arguments as necessary.

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       In his brief to this court, Evans did not even cite the Craddock factors, let
alone attempt to argue that he has satisfied those factors.4 Instead, Evans asserts
various complaints regarding the trial court’s judgment, including:

       • the trial court failed to issue findings of fact and conclusions of law
         in support of the default judgment;
       • the trial court failed to consider all applicable law;
       • the default judgment rests on false documents;
       • the trial court granted the motion to withdraw by Evans’ attorney
         and the trial court refused to appoint substitute counsel;
       • Evans did not have notice of the trial date;5
       • the trial court granted default judgment without verifying the
         information submitted to the court; and
       • the opposing party does not have any constitutional rights due to
         the absence of any lawful immigration status.
Even were we to assume that any of the foregoing arguments may be a valid basis
for reversing a grant of a default judgment, we do not reach the merits of these
issues because we conclude that Evans failed to preserve error.



       4
         Cf. Massey, 35 S.W.3d at 699 (affirming default judgment on direct appeal where
appellants did not argue the Craddock factors in appellate brief or any post-judgment motions).
       5
          Although not framed by Evans in the context of the Craddock factors, a lack of notice
of a trial setting is sufficient to satisfy the first Craddock factor. See Ashworth v. Brzoska, 274
S.W.3d 324, 329 (Tex. App.—Houston [14th Dist.] 2008, no pet.). But there is no indication in
the record that Evans raised this asserted lack of notice to the trial court or offered any proof in
support. Therefore, the issue is waived. See Williams v. Bayview-Realty Assocs., 420 S.W.3d
358, 364, 366 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding party failed to preserve
error by not raising complaint based on a lack of notice in the trial court and obtaining an adverse
ruling); Mamou, 2011 WL 2803437 at *2 (holding party waived appellate review of complaint
that default judgment was entered without proper notice of the trial when party failed to file a
motion for new trial); see also Felt v. Comerica Bank, 401 S.W.3d 802, 806 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (noting court begins with a presumption that a defendant had
notice of the trial court setting, and that defendant must overcome this presumption by
affirmatively showing a lack of notice via competent evidence).

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      As a prerequisite to this court’s review, the record must show that Evans
raised the matter complained of to the trial court in the form of a timely request,
objection, or motion. Tex. R. App. P. 33.1(a); Barkley v. Tex. Windstorm Ins.
Ass’n, No. 14-11-00941-CV, 2013 WL 5434171, *3 (Tex. App.—Houston [14th
Dist.] Sept. 26, 2013, no pet.) (mem. op.). The record here reveals no such effort
by Evans. The trial court granted a no-answer default judgment against Evans due
to his failure to appear at the trial de novo. But, Evans did not file a motion for new
trial or otherwise raise to the trial court in a post-judgment filing any of the various
issues he argues in his brief to this court. Therefore, Evans’ complaints about the
judgment are waived. See, e.g., Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577
(Tex. 2006) (“Except for fundamental error, appellate courts are not authorized to
consider issues not properly raised by the parties.”).

      Likewise, Evans complains to this court about matters subsequent to the trial
court’s grant of default judgment. For example, Evans complains about the trial
court’s failure to issue findings of fact or conclusions of law, but there is no
evidence in the record that Evans ever requested findings of fact and conclusions
of law or filed a past due notice. Cf. Tex. R. Civ. P. 296, 297. Therefore, “this
appellate complaint is waived.” Powell v. Reiswerg, No. 14-12-00776-CV, 2013
WL 5883807, *2 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet.) (mem.
op.). Also, Evans complains about the trial court granting the motion to withdraw
by his attorney, which occurred in June 2014 after the original default judgment
and the amended default judgment were issued. But, there is no indication in the
record that Evans challenged whether his attorney had valid grounds to withdraw,
or that Evans sought any conditions on withdrawal or other considerations from the
trial court. Therefore, Evans failed to preserve error. See Aduli v. Aduli, 368
S.W.3d 805, 817–18 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (concluding


                                           5
party failed to preserve error regarding the timing of attorney’s withdrawal on the
day of trial where party merely opposed the motion to withdraw but did not request
a continuance).

      The only argument in Evans’ brief that he has not waived by his failure to
raise it below is his assertion that the Justice Court’s judgment in favor of
appellees was void because it was issued after the expiration of the Justice Court’s
plenary power. See Smalley v. Smalley, 436 S.W.3d 801, 806 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (noting a trial court loses its subject matter jurisdiction
after expiration of its plenary power); see also City of Houston v. Rhule, 417
S.W.3d 440, 442 (Tex. 2013) (per curiam) (stating a court that acts without subject
matter jurisdiction commits fundamental error that an appellate court may review
for the first time on appeal). Evans claims there was an earlier eviction case
(presumably involving the same property and parties) in which the Justice Court
granted a default judgment in favor of Evans. But, there is no indication in the
record of an earlier judgment by the Justice Court, let alone any details about such
a judgment that could raise a question about whether the Justice Court had subject
matter jurisdiction over the present case. Therefore, we reject this argument. See
Watts v. Oliver, 396 S.W.3d 124, 135 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (noting that fundamental error exists only in instances “in which the record
affirmatively and conclusively shows that the court rendering the judgment was
without jurisdiction of the subject matter”).

      As previously noted, Evans did not file a motion for new trial with the trial
court after it granted the default judgment. “A motion for new trial to set aside a
default judgment is a complaint on which evidence must be heard.” Puri v.
Mansukhani, 973 S.W.2d 701, 715 (Tex. App.—Houston [14th Dist.] 1998, no
pet.). By not filing a motion for new trial, Evans did not introduce any evidence

                                          6
extrinsic to the record to support his satisfaction of any of the Craddock factors. As
illustrated by the above discussion, the existing record is devoid of any evidence
bearing on the Craddock factors. Therefore, a motion for new trial was essential to
Evans introducing the extrinsic evidence needed to satisfy his burden. See
Onwubuche v. Olowolayemo, No. 01-10-00945-CV, 2012 WL 1067950, *2 (Tex.
App.—Houston [1st Dist.] Mar. 29, 2012, no pet.) (mem. op.) (“Because the
defaulting party has the burden to show that the elements of the Craddock test are
satisfied, . . . the defaulting party must put forward any necessary evidence on
these issues; typically a motion for new trial is the vehicle for offering such
evidence into the record.”); Harris v. Burks, No. 01-06-00128-CV, 2007 WL
1776048, *2 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.) (mem. op.)
(“[C]omplaints regarding a trial court’s failure to set aside a default judgment must
be raised in a motion for new trial because the trial court must hear evidence to
determine whether the Craddock factors have been met.”).

      “When extrinsic evidence is necessary to challenge a default judgment,” as
is the case here, “a motion for new trial filed in the trial court is prerequisite to
complaining on appeal that it should be set aside.” Mamou, 2011 WL 2803437 at
*2; accord Barrett, 2012 WL 682342 at *2; see also Ginn v. Forrester, 282
S.W.3d 430, 432 (Tex. 2009) (per curiam) (“When extrinsic evidence is necessary
to challenge a judgment, the appropriate remedy is by motion for new trial . . . so
that the trial court has the opportunity to consider and weigh factual evidence.”).
As a consequence of Evans’ failure to file a motion for new trial and introduce
evidence bearing on the Craddock factors, he has waived appellate review that the
default judgment should be set aside. See Barrett, 2012 WL 682342 at *2–3;
Mamou, 2011 WL 2803437 at *2; see also Tex. R. Civ. P. 324(b)(1) (providing



                                          7
that a motion for new trial is a prerequisite to assert on appeal a complaint on
which evidence must be heard).

                                   CONCLUSION

       Having concluded that Evans has waived all arguments save one, and that
the only argument not waived is incorrect, we overrule Evans’ challenge to the trial
court’s grant of a default judgment. Accordingly, we affirm the judgment of the
trial court.


                                             /s/ Marc W. Brown
                                                 Justice

Panel consists of Justices Jamison, Busby, and Brown.




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