Affirmed and Memorandum Opinion filed July 9 , 2024

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00828

- CV

BDFI, LLC , Appellant
V.
BOXER PROPERTY MANAGEMENT CORPORATION , Appellee

On Appeal from the 295th District Court Harris County, Texas Trial Co urt Caus e No. 2019

- 85286

MEMORANDUM OPINION

A ppellant BDFI, LLC appeals from a post

- answer default judgment rendered against it in favor of appellee Boxer Property Management Corporation

. In four issues, BDFI argues the t rial court abused its discre tion by d enying its motion s for continuance ( issues I and II) , its motion for new t rial (issue III) , and for dismissing the jury panel and conducting a bench trial when it failed to appear for trial (issue I V)

. We affirm the judgment of the trial court as chall e ng ed on appeal.2 I. B ACKGROUND
In 20 1 8 , BDFI entered in t o a management agreement with Boxer to manage a commercial real estate property BDFI owned in H arris County

. Several months later, the b usiness relationship soured and BDFI fail ed to pay amo unts due u nde r th e contract. Boxer terminated the c ontract, filed an affidavit of mechanic ’ s lien , and ultimately filed suit alleging breach of contract , suit on a sworn account , and , altern atively , quantum me r uit an d pr omissory estoppel

. BDFI answered and as s erted a c ount erclaim

. In June 2022, BDFI ’ s trial

c ounsel voluntarily withdrew leaving BDFI with out representation until August 5, 20 22. When new counsel

— attorney MacGeorg e

— appeared , the case was set for
tr i al ten da ys l ater

. BDFI filed a motion for conti n u ance requ esti ng an ext ension of the trial date due to a conflicting t rial s etting in another Harris County district court the same week with the same client

. T he trial court ext ended the trial date by one w eek to A ugust 23 , to avoid conflicting tria l s

. The morn ing of A ugust 22 BDFI filed a no ther motion for continuance explaining that the conflicting trial was still ongoing and sought to delay its case with Boxer for at least 60 d ays. At 11 pm on August 22 , BDFI filed a supplement to its motion for continuance re ques ting a continuance of the trial d ate by 6 0 days because its attorney was “ unavailable for trial pursuant to medical instructions fro m a licensed physician , instructing her to not to perform work through August 26 th

. ” The trial court denied BDFI ’ s motio n fo r co ntinuance and conducted a b en ch trial on Boxer ’ s cl aims on August 23

.3 II. A NALYSIS
A. Applicable law and standard of review The granti n g or denial of a motion for contin uance is within the trial court ’ s sound discretion. Villegas v. Carter, 711 S.W.2d 6 24, 626 (Tex. 1986)

. The denial wil l be reversed if th e trial cou rt acted without regard to guiding principl es o r w a s arbit rary or unreas o nable. See Brewer v . Le nnox Hearth Prods ., LLC , 601 S.W.3d 70 4, 7 17 (Tex. 2020) ; BMC Software Belg., N.V. v. Marchand , 8 3 S.W. 3d 789, 800 ( T ex. 2002).

Tr ia l cour ts may not gran t a continuance “except for s ufficient cause suppo rted by affidav it, or b y cons e nt of the parties, or by operation of law.” Tex.
R . Civ. P. 2 51. If the ground on which a party seeks a continuance is the abs ence o f counsel, the rule s ta te s “ absence of counsel will not be good cause for a continuance or postponement of the cause when c a lled for trial, except it be allow ed in the discretion of the court , upon cau se sh own or upon mat te rs within the knowl edge or information of the ju dge to b e stat ed on t he rec ord. ” Tex. R. Civ. P. 253. A movant must show that the failure to be represented a t trial was not due to their own f ault or negligence. 1 Villegas, 711 S.W.2d at 626

. B. First request for con tinuance
In i ssue I, BDF I argues that the trial c ourt erred by denying its request for continuance of the trial date by 60 days. BDFI asserts the tria l court should have either denied t he first trial cou nsel ’ s request to withdraw or granted a continuance.
It maintains that ten days was not enough time to appropriately prepare for trial and that b y the time MacGeorge appeared , the deadline to submit tria l exhibit and

1 Th e mo tion to withdra w filed by BDFI ’ s f orm er counsel is not part of our reco rd , s o t he
re ason for their withdra w al is unknown. However, t he o rder granting their withdrawal is part of the record

.4 witness l ists had alr eady passed. Here, we construe BDFI ’ s issue as arguing that although the tri al court gra nted the motion and contin ued the trial date by 8 days , the trial court nevertheless erred by not continuing the trial date by a t least 60 days, as requested.

W e conclude this issue has not preserved for appellate review. In it s motion for co nt inuance, BDF I re quested “ a c ontinuance of the current trial setting because Defendants [ ’ ] counsel and the principal of the Defendant a re currently in trial in the 334 th

. . . and are expected to be so until August 18 th , and possibly later

. ” O n that basis, BDFI sought a conti nuance of th e tri al for at lea st 60 days. BDFI ’ s motion did not seek a continuance on the basis that more time was needed for trial preparation or tha t critical deadlines had pa ssed while BDFI was unrepresented

. The arg ument presented to this court as erro r was nev er made to the trial court

. Therefore , the trial court had no opportunity to consider or rule on this req u est. Tex. R. App. P. 33.1.

W e overrule issue I.

C. Second request for continuance
In issue I I, BDFI argues that the tria l court abused i t s discr etion by denying the second motion for continuance w i thout ma king a reasonable effort to determine whether MacGeorge ’ s medical condition resulted in her failure to appear at trial. 2 BDFI further argues the t rial court misread the doctor ’ s disc harge in structions and that error amounts to a n abuse of dis c retion.

2 B DFI also states “ t he trial court abus ed its discret ion b y denying Defendant ’ s Second Motion for C ontinuance for the same reasons it a bused its dis cretion when it denied Defendant ’ s Motion for Continuance. ” However, as above in Issue I, BDFI request ed the second continuance on the basis that its cou nsel and princi pal would be in trial on a different ca se. BDFI never argued t hat i t needed more time to prepare or to respond to c ritical deadlines. T h erefore, this argument is not preserved for ap pellate review with r espect to the second motion for
co ntin uance.5 We begin with BDFI ’ s claim t hat the trial court ’ s mis reading of the doctor ’ s

n ote was error. BDFI arg ues that the doctor ’ s discharge instructio n s state that MacGeorge should return in fou r days ’ time rather than excusing her from work for four day s . However, the motion filed by MacGe orge on behalf of BDFI undercut s this argument. It states that Mac George was “ unavailable for trial pursuant to med ica l instru ctions from a licensed physician, in str uc ting her to no t [] perform work through August 26 th
, 2 022 due to ongoing health concerns. ”
R egardless which interpretation of the note was intended by the doctor, or understood by the trial court, the dif fer ence in interpretation does not cha nge th e anal ys is or compel the con clusion the trial cour t erred . T h e trial court understood that BDFI w as not appearing on August 23 (or any day that wee k) because MacGeorge was unavailable due to instructions from a physician

. The second mo tion for continuance did no t explain MacGe orge ’s “ongoing health concerns. ” The s i ng l e sheet of paper from the emergenc y clinic did not offer

a diagnosi s n or did it state that MacGeorge was physically unable to attend or unavailable . M acG e orge included an unswor n declaration wi th he r m otion that stated all the facts in the supplemental m otion were true and correct. However , MacGeorge d id not submit a n affidavit from her medical provider establishing sufficient c ause

. 3 Tex. R. Civ. P. 251 ( “ [N] or shall any continuance be granted
excep t f or sufficient cause supported by affidavit [.] ” ) ( emp h asis added) ; see Olivares v. State , 6 93 S.W.2d 486, 49 0 (Tex. App.

— San Antonio 1985, writ dism’d) ( “ While appellant did attach his own affidavit of the facts, he had no supporting affidavit from medic al personnel stating it was impossible, from a medical s tandpoint, for him to appear in court on March 19th. ” ) ; see also White v. Mapel , No. 01

- 95

- 01125

- CV, 1996 WL 496908, at *4 (Tex. App.

— Houston [1st

3 We presume without deciding that an unsworn d eclaration from the medic al provider woul d satisf y Rule 25 1

. See Tex. Civ. Prac. & Rem. Code Ann. § 132. 001.6 Dis t.] Aug. 2 9, 1996, no writ) (not designated f or pu bli cation) ( no abuse of discretion in d enying motion fo r continuance when movant offered no e vidence regardin g nature of mov ant ’ s condition).
Based on the record before this court, w e cannot say the tr ial court abused its discretion in denyin g the sec ond m oti on for continuance

. We overrule issue II.

D. Motion for new trial In issue III, B DFI asserts the trial c ourt erred and abused its discretion by denying its motion for new trial. On appeal, BDFI argues that it me t the C raddock
test for setting aside th e def aul t judgment.

1. S tandard of review
We review a tri al cou r t ’ s denial of a motion for new tria l for abuse of discretion. E.g. , Dolgencorp of Tex
., Inc

. v

. Lerma , 288 S.W.3d 922, 926 (Tex. 2009) (per curi am)

. A tri al court abuses its discretion if it fail s to gra nt a new trial when a defaulting defendant proves ea c h element of the Craddock test. Id. at 926

. A default judgment should be set aside and a new trial granted if (1) the failure to
answer was not intentiona l or the result of conscious indifference but was due to a mistake or accident, (2) the defendant set s u p 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. Craddock v. Sunshine Bus Lines, Inc. , 13 3 S.W .2d 124, 126 (Tex. 1939).

2. The record

T h e record before u s includes a motion for new trial and a ruling on what appears to be B DFI ’ s amended motion for new trial. It i s uncl ear on the record before us whether t here was an amended motion for new trial. Howev er , issue III does not discuss or address any argument m ade in the amended motion for new7 trial ; therefore, the amended motion for new trial is not nece ssary to address any issues raised in this appe al. 4 See T ex. R. App. P. 47.1. Although there is n o order de nying the motion for new trial, we can presume it wa s overruled as a matter o f law

. Tex . R. Civ. P. 32 9 b(c). Although Boxer suggests that a hearing was held on
t he motion for new trial, there is n othing in the clerk ’ s record or the reporter ’ s

recor d to ref lect a hearing was requested or held. 5

Re gardless of whether a hearing was held , evide ntiary hearin gs are not required to be held on a motion for new trial, except for complain ts on which evidenc e must be heard

. Tex. R. Civ. P. 324 ; see Action Powe rspor ts, Inc. v. 1STEL, Inc. , 500 S.W.3d 632, 640 (Tex. App.

— Texarkana 2016, no pet.) ( “ When

n o hearing is held, we look to the motion for new trial and any accompanying affidavits to determine if this b urden is m et. ” ). However, in the co ntext of a challen ge to a default judgment under the Crad dock t est , it is suff i cient th at any affidavits support ing any element of the Craddock test are attached to the motion for ne w t rial and made part of the record. Di r., State Employees Workers ’ Comp. Div. v. Evans , 889 S.W. 2d 266, 268 (Tex. 1994) ( “ A ffidavits attached to the

mo t ion for new trial do not have to be offered into evidence in order to be considered by the trial court for t he meritorious defense elemen t or any othe r element of the Craddock test

. ”)

. T he lack o f a h ear ing record is not di spo sitive of

4 Boxer argues that the amended motion for new trial filed by BDFI s u perseded the original motion for new trial. Boxe r further argues that the am en ded motion for n ew trial is not in t he ap p ellate record . Therefore, Boxer asks us to conclude that BDFI ’ s motion for new trial (which is in the record) has been supers eded and d o es not preserve erro r on any of its arguments ch allenging the default judgme nt . However, the amended motion for ne w tri a l, if i t was filed, is not in the record before us. We cannot assume , without more, that the order granting the amended motion for tria l necessitates a conclusion there was a timely

- fi led amended motion for new t ri al. W e also cannot reach an y conclus ions a bout th e timeliness or effect of f ilings that are
no t in the record.

5 Even if a hearing was held, which we cannot discern from this re cord, it is not clear whether the hearing was an evidentiary hearing

.8 this issue . We must review the affidavits attached to the motion for new trial.

3. Craddock test
Because it is dispositive of the issue, we begin with the secon d Craddock f

actor

— whether BDFI set up a meritorious defens e in its motion for new t rial. BDFI argues that it has a mer i torious argument for reducing t he amount o f damages awarded against it.
The second prong of the Craddoc k test requires BDFI to “set up” a meritorious defense in its motion for new trial. Craddock , 133 S

. W.2d a t 126. Setti ng up a meritorious defense does not require proof “in the accepted sense.” Dolgencorp , 288 S.W.3d a t 927

– 28

. Rather, the motion sets up a meritorious defense if it alleges facts which in law would constitute a defense to the plai ntiff ’ s

cause of action an d is supported by affidavits or other evidenc e providing prima facie proof that the defendant has su c h a defense

. Id. ; see Guar anty Bank v. T

hompson, 6 32 S.W.2d 338, 339 (Tex. 2006). It is sufficient if at least a portion of the j udgme nt would not be sustained on retrial. See, e.g. , HST Gathering Co. v. Motor Serv., Inc., 683 S.W.2d 743, 745 (Tex. App.

— Corpus Christi 1984, no writ) ( defendant s e t up prima facie defense as “to some, if not all, of the monies” awarded in judgment ); Fols o m Inv s

. , Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex. App.

— Fort Wo rth 1982, writ ref ’ d n.r.e.) (defendant set up meritorious defense as
to lesser amount of d amages; opposite result of total nonliability need not be proved). However, conclusory allegat ions ar e insufficient. Holt Atherton Indus.,
Inc. v. Heine , 835 S.W.2d 80, 82 (Tex. 1992)

. Although BDFI argues that it has a meritorious defense to the awa rd of damages, BDFI never set up any meritorious defense. The trial court in its final judgment held t hat th e parties entered in to a valid and enforceable contract, which BDFI breached by failin g to pay the amounts due

. Both i n its motion for new tri al9 and in this court , BDFI does not e xp lain how or why there would have been a lesser award of damages if it had b e en present at trial to contest the damages. Although BDFI highlights that Boxer ’ s damages included charges for a $25.00 Starbucks gift card and a picture frame , suggesting that such charge s were inappropriate , it offers n o explanatio n as to why th ose char g e s or any other charges
compr ising Boxer ’ s damages were not recoverable under the contract between the parties. 6 , 7

O t her than saying things would be different if it could hav e challenge d the d amages, BDFI offers no explanation or legal argument o f which d amages it would challenge or under what legal theory or defense it would make its c hallenge . Boxer introduced e vidence and testimony at trial. A t this stage, BDFI must do more than say Boxer “ will need to account for all $72,943.62 in itemized charges in t he

6 BDFI also argue s th at it filed a verified d enial of Boxe r ’ s sw o rn
- account claim because not all law ful offsets and credits were mad e

. The trial court ’ s final judgment did not reference the suit

- on
- a
- swor n
- account clai m

. However, we note that the filing of a sworn denial merely destroys the e videnti a ry presumption that the affidavit attached to the suit is the evidence necessary to establish a prima facie right of recover y

. S ee Tex. R. Civ. P. 185 ; Tandan v. Affordable Power, L.P. , 377 S.W.3d 889, 894 (Tex. App.

— Houston [14th Dist.] 2012, no p et.)

. B y filing a sworn denial, BDFI forced Boxer to introduce proof of its claim , which Boxer did at trial. BDFI did not outline in its motion for new trial an y facts o r defenses that demonstrate any legal entitlement to offse ts or credits that it did not receiv e

. See Siegler v. Williams , 658 S.W.2d 236, 239 (Tex. App.

— Houston [1s t Dist.] 198 3, no writ) ( “ The appellant pleaded legal concl usions and [failed] to allege facts sufficient to set up a meritorious defense . We hold that t he trial court did not abuse its dis cretion in overruling the appellant ’ s motion for new trial

. ” ).

7 BDFI al so alleges in its motion for new trial t hat it had a mer itorious defense in that Boxer pr eviously breached the management contract. Although BDFI states there is testimony and evide nce “ in the record of t his Court ” that esta blishes a fact issue on Boxer ’ s failure to p erfo rm under the contrac t , B DFI does not all ege a material breach. W hen a par ty comm its a nonmat eria l breach , the other party “is not excus ed from future performanc e but ma y sue for t he damag es caused by the brea ch .” Bartush

- Schnitzius Foods Co

. v. Cimco Refrigeration, Inc. , 518 S.W. 3d 432, 436 (Tex

. 2017) (per c u r i a m ) ; s e e g e n e ral ly , e.g. , Mays v. Pier ce , 203 S.W.3d 564, 575 (Tex. App.

— Houston [ 14th Dist.] 2006, pet . den ied ) (“A breach of cont ract occu r s when a p ar ty fails or refuses to do so me thin g he has promised to do.”). Even so, BDFI provided n o affi davit or evidence in its mo tion for new trial to establish such a defense. Therefore, we conclude this issue was n ot pr ese rved for appellate review.10 Gener al Ledger. ” This statement does not set up a m e ritorious defense. Because
B DFI did nothing more than as ser t its conclus ion that some unknown amount of the itemized charges introduced into evidence were not recoverable , we conclude that BD F I has not met its burden to set aside the default judgme nt. 8 Ivy v. Carre ll , 407 S.W.2d 212, 214 (Tex. 1966) ( “ This does not mean that the motion should be granted if it merely [a] lleges that the defendant ‘has a meritorious def ense .’ The motion must allege [f] acts which i n law would constitute a defense to the cause of action asse rted by the plaint iff, and must be supported by affi davits or other evidence proving prima facie that the defendant has such meritorious defense

. ” ) ; Act ion Powerspor t s , 500 S.W.3d at 640 ( “[T] he a llegations that [defendant] is entitled to offsets and that [ plaintiff ] failed to provide the promised servi ces are conclu sory. There are no facts alleged showing what services [ plaintiff ] failed t o provide or esta blishing that [ defendant ] was enti tl ed to an offset. Therefore, the motion did not set up a meritorious defense for [ defendant ]

. ” ).

W e concl ude the trial court did not abuse its discretion by denying appellants ’ motion for new trial

. See Heine , 835 S.W.2d a t 83 (concluding that, because ap pe llants f ailed to satisfy first element of Craddock test, it was not

necess ary to reach other two element s)

. We overrule issue III

. E. Dismis sal of jury panel
I n issue IV , BDFI argues the trial court abused its discre t ion by dismissing the jury panel and c o nd ucting a bench trial. In sup port of this issue, BDFI argues that it properly demanded a jury trial and that its absence from trial was not voluntary.

8 The motion for new trial does contain , as an exhibit , a ver ification signed by an employee of BDFI. T his verification was attached t o B D F I ’ s third amende d answer and counterclaim filed more than a year before the motion for new trial. T he verification st anding alon e provides no facts , only legal conclusion s , to set up a meritorious defense for BDFI

.11 Rule 220 of the Texas Rule s of Civil Procedure provi des:
When an y party has paid the fee for a jur y tria l, he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested. If s o permitted, the court in it s d iscretion may b y an order permit him to withdr aw also his jury fee deposit. Failure of a part y to appear for trial shall b e deemed a waiver by him of the right to trial by jury.
Tex. R. Civ. P. 220

. Although BDFI argue s i ts f ailure to appear must be vol unt ar y , the rule c ont ains no such language and BDFI cite s to no authority supporting such
a requ ir ement

. 9 This court has prev iously discussed that even an untimely
appearance for trial , under the rules , may for feit a right to jury trial. In re Marriage of Harris on , 557 S.W.3 d 99, 136 (Tex. App.

— Houston [1 4 th Dist.] 2018, pet. denied) (c iting In re T. K. , N o. 09

- 09

- 00472

- CV, 2010 WL 890 657, at *4 (Tex. App.

— Beaumont Mar. 11, 2010, no pet.) (mem. op.) (counsel ’ s appearance four hours l ate deemed waiver of rig ht to j ury trial) an d Money v. Jones , 766 S.W.2d 30 7 , 308

– 09 (Tex. App.

— Dallas 1989, writ deni ed) (tri al counsel ’ s refusal to go fo rward with trial constituted failure to appear and waived right to jury trial) )

. Because BDFI did not appear for trial, it w aived it s right to a jury trial. C4 Food Truck, LLC v . Lewis , No. 14

- 21

- 00292

- CV, 2024 WL 97376 0, at *1 (Tex.

9 BDFI ci tes a few cas es for general pr op o sitions. F o r instance, it cites to Mendez v. State , for the proposition that due proce ss of law is required for the waiver of constitut ional rights. Mendez , 138 S.W .3d 334, 344 (Tex. Crim. App. 2004)

. Ho wever, Me nd ez is a criminal c ase and BDFI did not preserve any argument regarding deprivation of a const itutional right i n a civi l
cas e

. BD FI also cites two other cases for the proposition that the trial court ’s removal of a case from t he jur y docket once it is p ro perly on the jury do cket is error. See Cardenas v. Montfort, Inc. , 894 S.W.2d 406 , 409

– 10 (Tex. App.

— Sa n Antonio 1994), writ denie d p er curia m , 924 S.W.2d 156 (Tex. 1996) ( “ We find no error in the judgment of the court of appeals. However, we neither appr ove nor d isapp rove its opinion. T he petition for writ of error is denied. ” ) ; Zemanek v. Boren , 810 S.W.2d 10, 11

– 12 (Tex. App.

— Hous ton [14th D ist.] 1991, no writ.) . However, neither case addresses a s ituation in which a party has failed to appear for tria l and th er efore is
n ot instructive on the issue raise d by appellant. Similarly , BDFI also cites to Halsell v. Dehoyos , whic h address es the time liness of a req uest for a jury trial and not the situation o f a party that did
no t appear for trial

. Halsell , 810 S. W.2d 37 1 (Tex. 1991)

.12 App.

— Houston [14 th Dist.] Mar. 7, 2024, no pet. ) (mem. op.) ( “ Because appellants did not appear for trial, they waived their right to a jury trial. ”). We overrule issue IV.

III. C ONCLUSION Having overrule d BDFI ’ s four issues , we aff irm the judgment of th e t rial court as ch allenged on appeal.

/s/ C har les A. Spai n Justice

Panel cons is ts of Justice s Wise , Spain , and Hassan

.