AFFIRMED; Opinion Filed October 30, 2014.




                                                S
                                    Court of Appeals
                                                     In The


                             Fifth District of Texas at Dallas
                                            No. 05-13-01233-CV

    MASOUD KAHROBAIE, EBRAHIM KAHROBAIE, AND JOSEPH KAHROBAIE
                 A/K/A YUSEF KAHROBEE, Appellants
                               V.
                  WILSHIRE STATE BANK, Appellee

                           On Appeal from the County Court at Law No. 4
                                       Dallas County, Texas
                               Trial Court Cause No. CC-11-07903-D

                                  MEMORANDUM OPINION
                                    Before Justices Francis and Myers 1
                                        Opinion by Justice Myers
        Appellants Masoud Kahrobaie, Ebrahim Kahrobaie, and Joseph Kahrobaie, a/k/a Yusef

Kahrobee, appeal an order denying their motion to set aside and motion for new trial on appellee

Wilshire State Bank’s no-evidence summary judgment. In two issues, appellants contend (1) the

trial court erred by denying appellants’ motion to set aside the order granting no-evidence

summary judgment and for new trial on the basis that there was no meritorious defense, and (2)

the trial court abused its discretion by denying appellants’ motion for new trial that was based on

newly discovered evidence. We affirm.



    1
      Justice David Lewis was a member of the panel and participated in the submission of this case, but he did not
participate in the issuance of the opinion. See TEX. R. APP. P. 41.1(b).
                          BACKGROUND AND PROCEDURAL HISTORY

       This breach of contract lawsuit was originally brought by appellee, Wilshire, for

collection of a deficiency on a promissory note following a foreclosure sale. Appellants signed

guarantee agreements along with the promissory note. The documents were executed in July of

2007. The promissory note was payable to appellee in the amount of $3,375,000, and the loan

proceeds were used by appellants to purchase a hotel located on Camp Wisdom road in

Duncanville, Texas (the “hotel”). The loan was secured by a first lien mortgage to appellee.

       Appellants made payments to appellee on the note. However, in December of 2010 a fire

occurred at the hotel and part of the property was damaged. The hotel continued to operate in a

diminished capacity, but appellants were unable to make the monthly mortgage payments, and

appellee ultimately foreclosed on the hotel.     Appellee hired Pyles Whatley Corporation to

prepare an appraisal report for the purpose of selling the hotel at a foreclosure sale. The

restricted appraisal report, sent to appellee in January of 2012, concluded that forty guest rooms

of the 123 room hotel remained available as rented rooms, and that the property had an “as is”

market value of $500,000. The hotel sold at a foreclosure sale in Dallas County, Texas on May

1, 2012, for $550,000.

       Appellee filed its breach of contract suit against appellants on November 15, 2011.

Appellants answered, after which they counterclaimed against appellee for fraud, fraud by

nondisclosure, and statutory fraud. On May 8, 2013, appellee filed a no-evidence motion for

summary judgment. Appellants did not respond to the motion. On June 3, 2013, the trial court

signed a final judgment ordering that appellants were jointly and severally liable to appellee in

the amount of $2,982,758.49, together with interest, attorneys’ fees, and court costs. The trial

court also ordered that appellants take nothing from appellee. In their June 3, 2013 motion to set

aside the order granting appellee’s no-evidence motion for summary judgment and motion for

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new trial, appellants’ counsel argued he was unaware the no-evidence motion for summary

judgment had been filed and set for a hearing. The motion to set aside was heard on July 8,

2013. After the hearing, the trial court signed an order denying the motion to set aside on July

10, 2013. This appeal followed.

                                           DISCUSSION

                                        Craddock Factors

       Appellants frame their first issue as follows:

       Did the trial court err when it denied Appellants’ Motion for New Trial, on the
       reasoning that there was no meritorious defense of fraud by nondisclosure in a
       foreclosure sale, when the evidence presented demonstrated that Appellees made
       false and/or misleading statements to potential bidders orally and in an appraisal
       report, with the knowledge that the potential bidders would relay that information
       to Appellants?

       We review a trial court’s denial of a motion for new trial following a post-answer default

for an abuse of discretion. In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006); Dir. State Emps.

Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). A default judgment should be

set aside and a new trial granted if (1) the failure to answer or appear 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. See Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.

1987) (citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).

When applied to the summary judgment context, various Texas courts, including this Court,

require the party seeking a new trial to show, regarding the second prong of the test, factual

proof that raises a material question of fact. See, e.g., Costello v. Johnson, 680 S.W.2d 529, 531

(Tex. App.––Dallas 1984, writ ref. n.r.e.); Washington v. McMillan, 898 S.W.2d 392, 395 (Tex.

App.––San Antonio 1995, no writ). The defaulting defendant has the burden of proving that all

three elements of the Craddock test are met before a trial court is required to grant a motion for
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new trial. Utz v. McKenzie, 397 S.W.3d 273, 278 (Tex. App.––Dallas March 1, 2013, no pet.);

Scenic Mountain Med. Ctr. v. Castillo, 162 S.W.3d 587, 590 (Tex. App.––El Paso 2005, no pet.).

If the defendant fails to meet any one of the three requirements, the trial court does not abuse its

discretion by denying a new trial. See Continental Carbon Co. v. Sea–Land Serv., Inc., 27

S.W.3d 184, 191 (Tex. App.––Dallas 2000, pet. denied); 4180 Belt Line, Ltd. v. Lone Star Valet

Parking Servs., Inc., No. 05–10–00943–CV, 2012 WL 602922, at *1 (Tex. App.––Dallas Feb.

24, 2012, no pet.) (mem op., not designated for publication).

       Appellants’ issue stresses the second element of the Craddock test––whether they set up

a meritorious defense.    Appellants do not discuss the third element except to argue it is not at

issue, and as support they point to the hearing on their motion to set aside, where, according to

appellants, the representations of the trial court during the hearing showed that the only issue

preventing the granting of the motion for new trial was whether appellants presented a

meritorious defense. We have reviewed the reporter’s record of the July 2013 hearing, and what

it shows is that the trial court focused most, if not all, of its attention on the second Craddock

element. The third element was barely mentioned, much less discussed, and at no point during

the hearing did the trial court indicate that the third element had been established, nor did

appellee’s trial counsel concede the issue. Furthermore, the trial court’s order denying the

motion to set aside and motion for new trial did not specify a basis for the court’s ruling.

       The purpose of the third element of the Craddock test “is to protect a plaintiff against the

sort of undue delay or injury that would result in a disadvantage when presenting the merits of

the case at a new trial, ‘such as the loss of witnesses or other valuable evidence.’” Dolgencorp

of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (quoting Evans, 889 S.W.2d at 270);

L’Arte De La Mode, Inc. v. Neiman Marcus Group, 395 S.W.3d 291, 297 (Tex. App.—Dallas

2013, no pet.). The general rule is that once a defendant alleges that the granting of a new trial

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will not injure the plaintiff, the burden shifts to the plaintiff to establish proof of injury. Evans,

889 S.W.2d at 270; L’Arte De La Mode, 395 S.W.3d at 297; Hampton-Vaughan Funeral Home

v. Briscoe, 327 S.W.3d 743, 749 (Tex. App.—Fort Worth 2010, no pet.). But “[a]n equitable

principle is involved and courts should deal with the facts on a case by case basis in order to do

equity.” Evans, 889 S.W.2d at 270; see Hornell Brewing Co., Inc. v. Lara, 252 S.W.3d 426, 428

(Tex. App.—Houston [14th Dist.] 2008, no pet.); Hahn v. Whiting Petroleum Corp., 171 S.W.3d

307, 311 (Tex. App.—Corpus Christi 2005, no pet.). The fact that a defendant offered to

reimburse the plaintiff for costs associated with the default judgment and stated it is prepared for

an immediate trial are two important factors to consider in making such a case-by-case

determination. See Evans, 889 S.W.2d at 270 n.3; Cliff, 724 S.W.2d at 779; Jaco v. Rivera, 278

S.W.3d 867, 873–74 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Hornell, 252 S.W.3d at

428; Titan Indem. Co. v. Old South Ins. Group, Inc., 221 S.W.3d 703, 712 (Tex. App.––San

Antonio 2006, no pet.); Hahn, 171 S.W.3d at 311.

       In this case, appellants’ motion alleged that “the granting of a new trial will not occasion

delay or injure Wilshire, as the discovery deadline has not yet passed.” There was, however, no

such statement in the supporting affidavit from appellants’ trial counsel, which explained that his

failure to appear at the hearing on appellee’s no-evidence motion for summary judgment was due

to a mistake on his part and not the result of conscious indifference. Neither the motion nor the

affidavit alleged that appellants were ready, willing, or able to go immediately to trial, nor did

they offer to reimburse appellee for the expenses incurred in obtaining summary judgment. As

the Texas Supreme Court has stated, conclusory allegations are insufficient to establish the

Craddock factors. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992). And

appellants were required to prove all three elements of the Craddock test to show that the trial

court abused its discretion. See Utz, 397 S.W.3d at 278. Given the record in this case, we cannot

                                                 –5–
say the trial court abused its discretion. We overrule appellants’ first issue.

                                    Newly Discovered Evidence

       In their second issue, appellants contend the trial court abused its discretion by denying

the motion for new trial “based on ‘good cause’ or ‘justice’ grounds, when newly discovered

evidence demonstrated that there was a potential claim for conversion against Appellee.”

       Rule 320 of the Texas Rules of Civil Procedure provides, in part, that “[n]ew trials may

be granted and judgment set aside for good cause, on motion or on the court’s own motion on

such terms as the court shall direct.” TEX. R. CIV. P. 320. When a party moves for a new trial

based upon the existence of newly discovered evidence, that party has the burden of showing:

(1) the evidence has come to light since trial; (2) it is not due to lack of diligence that it was not

produced sooner; (3) the new evidence is not cumulative; and (4) the new evidence is so material

that it would probably produce a different result if a new trial were granted. Waffle House, Inc.

v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Chapman v. Abbot, 251 S.W.3d 612, 620 (Tex.

App.––Houston [1st Dist.] 2007, no pet.); see also Armendariz v. Redcats, USA, L.P., 390

S.W.3d 463, 471 (Tex. App.––El Paso 2012, no pet.). Whether a motion for new trial based on

newly discovered evidence will be granted or refused generally is a matter left to the sound

discretion of the trial court. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled

in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). Accordingly, we

review the trial court’s failure to grant a motion for new trial for an abuse of discretion and

indulge every reasonable presumption in favor of upholding the order. Id. at 809–10.

       In their motion to set aside and motion for new trial, appellants stated that “new evidence

of misconduct on the part of Wilshire Bank has been recently discovered by interviewing and

speaking to various individuals who had attempted to purchase the note on the hotel prior to the

foreclosure by Wilshire Bank.” Appellants alleged that their newly discovered evidence “will

                                                 –6–
show there are individuals who engaged in extensive negotiations with Wilshire prior to the

foreclosure of the Hotel,” and that appellants “believe the evidence will show that Wilshire

rejected the offer of approximately $1,000,000” for the purchase of the hotel in order to sell it for

the much lower value of $550,000. Appellants supported their motion with affidavits from two

acquaintances of appellants who were allegedly interested in purchasing the hotel after appellee

foreclosed on it––Fred Bahari and Don (Giddon) Barad. Their affidavits stated that appellee

represented to Barad, a liaison for Bahari, that the value of the hotel after the December 2010 fire

“was more than $1,000,000.” The affidavits also alleged that appellee refused to sell Barad and

Bahari the promissory note because of their acquaintance with appellants, believing appellants

were the ones attempting to purchase the note.

       Appellants’ motion for new trial simply does not meet the requirements for a new trial

based on newly discovered evidence. The affidavits from Bahari and Barad do not demonstrate

that the evidence was “newly” discovered or that the failure to discover it sooner should be

excused. See Waffle House, 313 S.W.3d at 813. In fact, appellants acknowledge that they were

personally acquainted with Barad and Bahari, yet they made no effort to show why the evidence

regarding appellee’s alleged valuation of the Hotel at over $1,000,000, or its alleged refusal to

sell the note to Barad and Bahari, could not have been discovered sooner with the exercise of due

diligence. The trial court noted this deficiency when it overruled the motion to set aside, telling

appellants’ trial counsel that Barad and Bahari were “friends of your clients” and

“that these gentlemen all know each other,” but there was no explanation as to why appellants

“couldn’t have discovered all of this information prior to June 7th, 2013, when these men signed

these affidavits.” Nor did the motion show the new evidence was so material that it would

probably produce a different result were a new trial granted. See id. The trial court therefore

could have reasonably concluded appellants did not demonstrate grounds for a new trial based on

                                                 –7–
newly discovered evidence. We overrule appellants’ second issue.

       The trial court’s judgment is affirmed.




       131233F.P05
                                                       / Lana Myers/
                                                       LANA MYERS
                                                       JUSTICE




                                                 –8–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MASOUD KAHROBAIE, EBRAHIM                          On Appeal from the County Court at Law
KAHROBAIE, AND JOSEPH                              No. 4, Dallas County, Texas
KAHROBAIE A/K/A YUSEF                              Trial Court Cause No. CC-11-07903-D.
KAHROBEE, Appellant                                Opinion delivered by Justice Myers.
                                                   Justice Francis participating.
No. 05-13-01233-CV         V.

WILSHIRE STATE BANK, Appellee

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee WILSHIRE STATE BANK recover its costs of
this appeal from appellants MASOUD KAHROBAIE, EBRAHIM KAHROBAIE, AND
JOSEPH KAHROBAIE A/K/A YUSEF KAHROBEE.

       Judgment entered this 30th day of October, 2014.




                                             –9–
