Opinion filed October 23, 2008




                                              In The


   Eleventh Court of Appeals
                                             __________

                                    No. 11-08-00132-CV
                                        __________

          A.J. MORRIS, II LIVING TRUST (A.J. MORRIS), Appellant

                                                V.

                           PALO PINTO COUNTY, Appellee


                           On Appeal from the 29th District Court

                                    Palo Pinto County, Texas

                                 Trial Court Cause No. 20,761


                           MEMORANDUM OPINION
       This is a suit for delinquent taxes. A.J. Morris, II Living Trust (A.J. Morris) challenges the
trial court’s default judgment. We affirm.
       On September 20, 2007, Palo Pinto County filed its original petition seeking $21,779.78 in
back taxes from Morris. The record reflects that Morris was served with the petition on October 25,
2007. The case was set for hearing on January 29, 2008. The judgment recites that Morris neither
filed an answer nor appeared at the hearing. Palo Pinto County tendered certified tax statements to
support its claims. The trial court signed its judgment in favor of Palo Pinto County on January 29,
2008.
        On February 14, 2008, Morris filed both a pro se answer and a pro se motion for new trial.
In the motion for new trial, Morris alleged that he mailed the original answer on or about
December 29, 2007; that no notice of the January 29 hearing was received; that his failure to appear
was not intentional or due to conscious indifference but was an accident; that a meritorious defense
existed in that he did not owe any taxes and did not own the property in question; that the evidence
did not support the judgment; and that granting a new trial would not cause undue delay or injury.
No supporting affidavits were attached to the motion, and the motion was not verified. Morris
attached a copy of his original answer to his motion. However, the copy was not file-marked.
        Palo Pinto County filed a verified answer to Morris’s motion for new trial contending that
Morris was notified of the setting date and that the notice was not returned, denying all of Morris’s
allegations, and demanding strict proof of those allegations. The trial court denied Morris’s motion
for new trial.
        In his brief, Morris challenges the overruling of his motion for new trial and argues that the
trial court’s “abdication of administrative function and responsibility to a private individual violates
the Equal Protection Clause” and that the “amount of the judgment is incorrect and against the wrong
party.” In his rebuttal brief, Morris challenges the statement that this is a no-answer default
judgment. Morris never challenges that he was served with Palo Pinto’s petition. Instead, he argues
that counsel for Palo Pinto County had no authority to send him notice of the setting of the case, that
he never received notice of the setting even though notice was mailed to the same address where he
had been served with the petition, and that he filed an “appropriate answer.” Morris appears to be
contending that the trial court must personally send notice of a hearing to the parties and that either
the answer he claims to have mailed on December 29 or the answer he filed in conjunction with his
motion for new trial is “appropriate.” We note that neither answer is timely pursuant to TEX . R.
CIV . P. 99.
        We review the trial court’s actions on Morris’s motion for new trial under an abuse of
discretion standard of review. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Director, State
Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). It is well established


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in Texas that a motion for new trial should be granted, and a default judgment set aside, when the
defendant establishes that his failure to answer before the judgment was signed was due to accident
or mistake and was neither intentional nor the result of conscious indifference, when the defendant
provides a meritorious defense in his motion for new trial, and when the granting of the motion for
new trial will cause no delay or injury to the plaintiff. In re R.R., 209 S.W.3d at 114-15; Evans, 889
S.W.2d at 268; Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994); Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). When the defendant establishes these
factual Craddock requirements in a proper motion for new trial and when his factual allegations are
not challenged, it is an abuse of discretion not to grant the motion for new trial. Evans, 889 S.W.2d
at 268; Scott, 873 S.W.2d at 382.
        Morris has failed to establish the threshold of the Craddock requirements. The allegations
in his motion for new trial were neither verified nor supported by affidavits. Palo Pinto County
controverted Morris’s unsupported allegations in its verified response. Morris has failed to establish
that the trial court abused its discretion by overruling his motion for new trial. See Scott, 873 S.W.2d
at 382. All of Morris’s contentions on appeal have been considered, and each is overruled.
        The judgment of the trial court is affirmed.


                                                                PER CURIAM


October 23, 2008
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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