                                MEMORANDUM OPINION
                                       No. 04-09-00416-CV

                     BUBBA’S OF SAN ANTONIO, James M. Deitch, L.L.C.
                   d/b/a Bubba’s of San Antonio, and James Deitch, Individually,
                                           Appellants

                                                  v.

                          LEYENDECKER CONSTRUCTION, INC.,
                                     Appellee

                    From the 111th Judicial District Court, Webb County, Texas
                              Trial Court No. 2007-CVF-000287-D2
                            Honorable Raul Vasquez, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: June 16, 2010

AFFIRMED

           Bubba’s of San Antonio, James M. Deitch, L.L.C. d/b/a Bubba’s of San Antonio, and

James Deitch, Individually (collectively “Bubba’s), appeal a post-answer default judgment on

the basis that the trial court erred in denying their motion for new trial. Bubba’s contends that

the trial court abused its discretion because Bubba’s established it was entitled to a new trial

pursuant to the factors set out in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133

S.W.2d 124 (Tex. 1939). We affirm the trial court’s judgment.
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                                          PROCEDURAL HISTORY

        The trial court signed a post-answer default judgment against Bubba’s on March 24,

2009. On April 20, 2009, Bubba’s filed a motion for new trial, asserting its failure to appear at

trial was based on a mistaken belief that the case had been abated. Bubba’s attached the affidavit

of James Deitch, the owner of Bubba’s, who explained the reason he mistakenly thought the case

was abated. Although the motion for new trial states that Bubba’s has a meritorious defense to

the claims asserted in the lawsuit, the motion does not allege facts setting up the meritorious

defense, and no affidavit or other evidence is attached to the motion that provides prima facie

proof that Bubba’s has a defense.

        The hearing on Bubba’s motion for new trial was held on May 20, 2009. On the day of

the hearing, Leyendecker Construction, Inc., in whose favor the post-answer default judgment

was rendered, filed a response to Bubba’s motion for new trial. In its response, Leyendecker

challenges Bubba’s contention that it mistakenly believed the case had been abated.

Leyendecker also notes in its response that Bubba’s motion fails to set up a meritorious defense.

The response states, “In fact, Defendants[’] motion does not include any facts at all related to

any defense of any kind.” Leyendecker also filed a motion to strike Deitch’s affidavit, asserting

thirteen separate objections to the affidavit.

        At the beginning of the hearing on the motion for new trial, Bubba’s attorney stated that

he was served with Leyendecker’s response and motion to strike at the hearing and requested an

opportunity to respond to those filings. Leyendecker’s attorney responded that it also had been

served with a supplemental motion for new trial and additional affidavits that day. 1

Leyendecker’s attorney noted that the supplemental motion and additional evidence was


1
  Although the clerk’s record does not contain any affidavits filed on May 20, 2009, Leyendecker appears to admit
in subsequent filings that additional affidavits were filed that day.

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untimely and should not be considered by the trial court. The trial court stated that it would

permit both parties to respond to the new filings, would hear the motion for new trial, and would

review the motion to strike and additional responses after they were filed. After Bubba’s

attorney presented his argument, Leyendecker’s attorney renewed his objections to the newly

filed additional affidavits. The trial court stated that Leyendecker had preserved the objections,

and the trial court would consider them after the additional responses were filed. Leyendecker’s

attorney subsequently argued Bubba’s motion should be denied because it failed to set up a

meritorious defense in its original motion and failed to support any defense with evidence.

        On May 21, 2009, Leyendecker filed a motion to strike the affidavit of John R. Griffith,

one of Bubba’s attorneys, stating the affidavit was untimely filed. Leyendecker also filed an

amended motion to strike an affidavit of Deitch that was filed on May 20, 2009, asserting

numerous objections including that the affidavit was untimely filed.

        On May 22, 2009, Bubba’s filed a reply to Leyendecker’s response. Bubba’s also filed

corrected affidavits. One of those corrected affidavits addresses the meritorious defenses that

Bubba’s sought to assert. On May 26, 2009, Leyendecker filed a motion to strike the corrected

affidavits, asserting that the corrected affidavits were untimely filed.

        The record does not contain a written order by the trial court on the motion for new trial;

accordingly, it appears that the motion for new trial was overruled by operation of law. 2 Bubba’s

appeals the trial court’s refusal to grant the motion for new trial.




2
  The docket sheet contains a “Coordinator’s Notes” entry dated June 11, 2009, stating, “Ruling of the court in re:
motion for new trial. Motion for new trial denied. Atty[‘]s Donato Ramos and John Griffin advised of ruling.”
This court cannot, however, consider docket sheet entries. Tex. Dept. of Pub. Safety v. Gonzales, 276 S.W.3d 88, 92
(Tex. App.—San Antonio 2008, no pet.). Moreover, the motion for new trial was overruled by operation of law on
June 8, 2009. See TEX. R. CIV. P. 329b(c).

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                                          DISCUSSION

        “[A] default judgment should be set aside and a new trial granted when the defaulting

party establishes that: (1) the failure to appear was not intentional or the result of conscious

indifference, but was the result of an accident or mistake; (2) the motion for new trial sets up a

meritorious defense; and (3) granting the motion will occasion no delay or otherwise injure the

plaintiff.”   Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (citing

Craddock, 133 S.W.2d at 126). “We review a trial court’s refusal to grant a motion for new trial

for abuse of discretion.” Id. “When a defaulting party moving for new trial meets all three

elements of the Craddock test, then a trial court abuses its discretion if it fails to grant a new

trial.” Id.

        “The second prong of the Craddock test requires [Bubba’s] to ‘set up’ a meritorious

defense in its motion for new trial.” Id. at 927. “This does not mean that the motion should be

granted if it merely alleges that the defendant ‘has a meritorious defense.’” Ivy v. Carrell, 407

S.W.2d 212, 214 (Tex. 1966). “The motion must allege facts which in law would constitute a

defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or

other evidence proving prima facie that the defendant has such meritorious defense.” Id. “This

much is necessary to prevent the reopening of cases to try out fictitious or unmeritorious

defenses.” Id.

        In this case, the motion for new trial did nothing more than allege that Bubba’s had a

meritorious defense. The only evidence in support of Bubba’s alleged meritorious defense was

contained in the untimely filed affidavits. See TEX. R. CIV. P. 329b(b) (amended motion for new

trial may be filed without leave of court only if filed within thirty days after judgment).

Although the record does not contain an order granting Leyendecker’s motion to strike the



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untimely affidavits, “this is not tantamount to either leave of court to file additional evidence or

an indication the court considered the additional evidence.” McMahan v. Greenwood, 108

S.W.3d 467, 500 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Because the trial court

could properly disregard Bubba’s untimely filed affidavits, the trial court did not abuse its

discretion in refusing to grant Bubba’s motion for new trial. See Equinox Enterprises, Inc. v.

Associated Media, Inc., 730 S.W.2d 872, 875 (Tex. App.—Dallas 1987, no writ) (holding trial

court could not consider untimely supplemental affidavits); cf. Moritz v. Preiss, 121 S.W.3d 715,

720 (Tex. 2003) (holding untimely amended motion for new trial is a nullity for purposes of

preserving issues for appellate review).

                                           CONCLUSION

       Because Bubba’s failed to set up a meritorious defense in its motion for new trial, the

trial court’s judgment is affirmed.


                                                         Rebecca Simmons, Justice




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