Medina v. Western Waste Industries
Medina v. Western Waste Industries
Opinion of the Court
OPINION
Appellant, Miguel Medina, appeals the trial court’s ruling granting summary judgment in favor of appellee, Western Waste Industries (Western). He argues that the court abused its discretion and committed gross error by granting appellee’s motion for summary judgment in the absence of appellant’s counsel. In addition, he contends the trial court erred in denying his motion for new trial. We affirm the judgment of the trial court.
Appellant was an employee of Western. In the course of his employment, he injured Ms foot. During Ms recovery, he received medical and disability payments from Western’s workers’ compensation carrier. However, when his treating physician released appellant to return to work full-time on April 21, 1993, appellant did not show up. Western attempted to contact him without success. Appellant did not contact Western until June of 1993, at wMch time the company advised him that he had already been listed as a “voluntary quit” in accordance with company policy.
Appellant filed suit claiming that the company terminated him in retaliation for filing a workers’ compensation claim. Western filed a motion for summary judgment attaching the deposition testimony of appellant in wMch he admitted that he did not believe he was fired because he filed a workers’ compensation claim. Appellant did not file a response to appellee’s motion for summary judgment, and the motion was granted on December 20,1995.
In Ms first and second points or error, appellant complains that the trial court improperly granted Western’s motion for summary judgment. He states that this ruling was gross error because it was made in the absence of appellant’s counsel. In addition, he states that the ruling was arbitrary and capricious, not supported by the proof, and an excessive abuse of discretion. Appellant fails to provide any support for these arguments in the record. In addition, he fails to cite us to any authority supporting the review he seeks. A point of error not supported by authority is waived. Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex.App.—Houston [14th Dist.] 1995, no writ); see also Tex.R.App. P. 74(f). Appellant has waived appellate review of these alleged errors, so we need not address Ms first and second points of error.
In Ms third point of error, appellant argues that the trial court improperly denied Ms motion to set aside the summary judgment and Ms motion for new trial. In making this argument, appellant contends that this court should apply the test set out in Craddock v. Sunshine Bus Lines, wMch allows courts to set aside no answer default judgments in certain circumstances. 134 Tex. 388, 133 S.W.2d 124 (1939). The Texas Supreme Court has not directly addressed the issue of whether the Craddock test applies to appellate review of the demal of a motion for new trial following an unopposed summary judgment.
Western asserts that the Craddock test does not apply to a motion for new trial following the granting of an unopposed summary judgment. Whether Craddock applies is a threshold issue to be determined because, if it does, it will dictate the appropriate standard of review in a case such as tMs. See Washington v. McMillan, 898 S.W.2d 392, 394 (Tex.App.—San Antomo 1995, no writ). If Craddock applies here, the stan
The Texas intermediate courts of appeals which have addressed the applicability of the Craddock standard for reviewing a motion for new trial following an unopposed summary judgment have reached different conclusions. See Washington v. McMillan, 898 S.W.2d 392 (Tex.App.—San Antonio 1995, no writ); Gonzales v. Surplus Ins. Services, 863 S.W.2d 96, 102 (Tex.App.—Beaumont 1993, writ denied); Krchnak v. Fulton, 759 S.W.2d 524, 528-29 (Tex.App.—Amarillo 1988, writ denied); Mosser v. Plano Three Venture, 893 S.W.2d 8, 12 (Tex.App.—Dallas 1994, no writ); Costello v. Johnson, 680 S.W.2d 529, 531 (Tex.App.—Dallas 1984, writ ref d n.r.e.) (all applying Craddock to unopposed summary judgments); see also Arit International Corp. v. Allen, 910 S.W.2d 166, 175 (Tex.App.—Fort Worth 1995, no writ) (suggesting, in dicta, that Craddock applies to summary judgments where the non-movant failed to receive notice of the hearing date). But see Crime Control, Inc. v. RMH-Oxford Joint Venture, 712 S.W.2d 550, 551-52 (Tex.App.—Houston [14th Dist.] 1986, no writ); Rabe v. Guaranty National Ins. Co., 787 S.W.2d 575, 579 (Tex.App.—Houston [1st Dist.] 1990, writ denied); Enernational Corp. v. Exploitation Engineers, 705 S.W.2d 749, 751 (Tex.App—Houston [1st Dist.] 1986, writ ref d n.r.e.) (all refusing to apply Craddock to unopposed summary judgments); and Bell v. State Dept. of Highways and Public Transp., 902 S.W.2d 197 (Tex.App.—Houston [1st Dist.] 1995, no writ) (Cohen, J. concurring) (confessing error in joining the majority opinion in Enemational to the extent that case held Craddock does not apply to unopposed summary judgments). See also Timothy Patton, SUMMARY Judgments In Texas, 112, 114 (1994).
We believe that the Craddock test logically applies to unopposed summary judgments as well as to default judgments.
Having determined Craddock applies to motions for new trial following unopposed summary judgments, we must now determine whether appellant has satisfied its criteria in this case. We find that he has not. The first prong of the Craddock test requires appellant to demonstrate that his failure to respond was not intentional or the result of conscious indifference,
Based on these facts, we cannot say appellant has met his burden of establishing that his failure to respond was not intentional or the result of conscious indifference, but was the result of an accident or mistake, when almost two months had passed since his relocation and nearly a month had passed since his mother-in-law’s death. See Halligan, 850 S.W.2d at 803-804 (holding that appellant’s mother’s heart attack three days prior to trial setting was insufficient to meet appellant’s burden to show failure to appear at trial was not the result of conscious indifference because he had ample time to notify the trial court of the circumstances and request an extension). In addition, we find appellant has not satisfied the requirement that he demonstrate that the record contains material questions of fact precluding summary judgment. For these reasons, we hold that the trial court properly overruled appellant’s motion for new trial. Appellant’s third point of error is overruled.
The judgment of the trial court is affirmed.
. If Craddock is to be properly applied in the context of unopposed summary judgments, this criterion of the test must be modified as indicated in note 3.
. We recognize that a previous panel of this court, citing Cove Investments, Inc. v. Manges, 602 S.W.2d 512 (Tex. 1980), stated that a motion for summary judgment may only be granted if the movant is entitled to a judgment as a matter of law; thus, a response is not required. Crime Control, Inc. v. RMH-Oxford Joint Venture, 712 S.W.2d 550, 551-52 (Tex.App.—Houston [14th Dist.] 1986, no writ). However, the Crime Control opinion fails to address the fact that a motion for summary judgment may be defeated by two different means: (1) a finding that the movant’s proof is insufficient to show that he has established every element of his claim or defense as a matter of law; or (2) proof establishing the existence of material questions of fact. See TexR. Civ. P. 166a(c). Because we recognize that this second criterion exists, we cannot adopt that panel’s conclusion.
. This criterion replaces the Craddock requirement that the party seeking a new trial must set up a meritorious defense, which applies in the default judgment context, but not in the summary judgment context. Krchnak, 759 S.W.2d at 530.
. Conscious indifference has been defined as the failure to take some action which would seem indicated to a person of reasonable sensibilities under the circumstances. Halligan v. First Heights, F.S.A., 850 S.W.2d 801, 804 (Tex.App.—Houston [14 ⅛ Dist.] 1993, no writ).
Concurring Opinion
concurring.
While I agree with the majority’s decision to affirm the trial court’s decision, I would not reach the determination of whether Medina has met the Craddock test because I believe prior precedent of this court establishes that the test does not apply in reviewing a motion for new trial following an unopposed summary judgment. See Crime Control, Inc. v. RMH-Oxford Joint Venture, 712 S.W.2d 550, 551-52 (Tex.App.—Houston [14th Dist.] 1986, no writ); see also Enernational Corp. v. Exploitation Eng’rs, 705 S.W.2d 749, 751 (Tex.App.—Houston [1st
Reference
- Full Case Name
- Miguel MEDINA, Appellant, v. WESTERN WASTE INDUSTRIES, Appellee
- Cited By
- 20 cases
- Status
- Published