Opinion
No. 05-03-01674-CV
Opinion Filed July 29, 2004.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc-03-00824-d.
Affirm.
Before Justices FITZGERALD, RICHTER, and LANG.
MEMORANDUM OPINION
Appellant Craig N. Lemp d/b/a Metropolis Homes ("Lemp"), a defendant below, appeals the summary judgment entered against him in a suit on a sworn account. Lemp raises three issues for our consideration, challenging summary judgment procedures and the denial of his motion for new trial. For the reasons that follow, we affirm the trial court's judgment.
Although a notice of appeal was filed on behalf of the second defendant below, Lemp Enterprises, Ltd., that defendant was non-suited in the trial court and is not party to any judgment before this Court.
Appellee Floors Unlimited, Inc., d/b/a First Floors ("First Floors") sued Lemp and Lemp Enterprises, Ltd. ("Enterprises"), urging claims based on a sworn account and a constitutional mechanic's lien and requesting attorney's fees. First Floors pleaded that it had served as a general contractor on the defendants' building project, had installed flooring in the project, but had not been paid what it was owed. The petition included documentation of the unpaid account and the lien, and the petition was verified. Lemp and Enterprises filed an unsworn answer. First Floors filed a motion for summary judgment against Lemp on the sworn account claim, proving up both the account and attorney's fees. Lemp filed no response to the motion and did not appear at the hearing on the motion. The trial court granted the motion, and First Floors non-suited Enterprise, making the summary judgment final. Lemp filed a motion for new trial, which was denied. This appeal followed.
Lemp's first and third issues address summary judgment procedures. Lemp complains in these issues that (1) First Floors presented no evidence at the summary judgment hearing, and (2) there was no reporter's record available from the summary judgment hearing so he could not "know what happened at the hearing." All summary judgment evidence must be filed in advance of the summary judgment hearing, according to the time lines created by the rules of civil procedure. See Tex. R. Civ. P. 166a(c). Moreover, rule 166a expressly forbids the taking of oral testimony at a summary judgment hearing. Id. Accordingly, there is no reason to create a record of the hearing. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) ("To permit `issues' to be presented orally would encourage parties to request that a court reporter record summary judgment hearings, a practice neither necessary nor appropriate to the purposes of such a hearing."). We conclude Lemp's arguments lack merit, and we resolve his first and third issues against him.
In his second issue, Lemp challenges the trial court's denial of his motion for new trial. We review a trial court's decision to deny a motion for new trial under an abuse of discretion standard. Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994) (per curiam); Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 187 (Tex. App.-Dallas 2000, pet. denied). We conclude the trial court properly denied the motion for new trial for at least two reasons.
First, Lemp's motion for new trial — and his argument on appeal — are based upon the standard set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Tex. 1939). The supreme court has stated that its purpose in adopting the Craddock standard was "to alleviate unduly harsh and unjust results at a point in time when the defaulting party has no other remedy available." Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (citing Craddock, 133 S.W.2d at 126). However, when the rules of civil procedure provide a party a remedy, then Craddock does not apply. Id. If Lemp was aware of the date and time of the hearing, but was unable to prepare his response, then the rules allowed him to seek a continuance or obtain permission to file a late response. See Tex. R. Civ. P. 166a(c), (g). Lemp admits he told the trial court at the hearing on his motion that he did know about the date and time of the summary judgment hearing. Accordingly, Lemp had the opportunity to seek relief under the rules, but he did not do so. Thus, Craddock does not apply to his motion for new trial. See Carpenter, 98 S.W.3d at 686.
Lemp offers inconsistent explanations for missing the summary judgment hearing. He does not address — in his motion for new trial or his appellate brief — the reasons for his failure to file a response.
Second, in the absence of Craddock's equitable considerations, Lemp's motion for new trial is no more than a challenge to First Floors's sworn claim. But Lemp failed to file a verified denial of the claim in his answer. Accordingly, he "shall not be permitted to deny the claim, or any item therein." Tex. R. Civ. P. 185; see also Vance v. Holloway, 689 S.W.2d 403, 404 (Tex. 1985) (where defendant failed to file sworn denial, he waived right to dispute amount and ownership of sworn account, and plaintiff was entitled to recovery). This Court has determined that the bar on denying a sworn claim extends to a motion for new trial. See Cont'l Carbon Co., 27 S.W.2d at 190.
For these reasons, we decide Lemp's second issue against him as well.
We affirm the judgment of the trial court.