KSNG Architects, Inc. v. Beasley

*900Concurring Opinion by

Justice MORRIS.

The majority in this case reverses the trial court’s judgment and remands the cause for further proceedings. I agree with this disposition, but not with the reasoning used by the majority. I write separately to describe briefly the reason why I conclude reversal is proper.

First, I must note that the record before the court does not show that KSNG Architects, Inc. preserved error with respect to the abatement issue so heavily relied upon by the majority. The majority points out that appellee Bryce B. Beasley sought an abatement to allow KSNG time to file a proper answer. The trial court refused Beasley’s request. Appellant KSNG did not seek abatement either before judgment was rendered or in its motion for new trial. The first time KSNG raised the issue of its alleged entitlement to an abatement was in this appeal. Our appellate rules require that before presenting a complaint for appellate review, the complaining party must have first sought a ruling from the trial court on the-specific issue and obtained an adverse ruling or a refusal to rule. See Tex.R.App. P. 33.1. Accordingly, KSNG, as the complaining party, was required to request an abatement from the trial court on its own behalf to preserve error. Because error was not preserved, the judgment should not be reversed on the basis of the trial court’s refusal to abate the case.

The trial court’s judgment should be reversed, however, because KSNG has shown itself entitled to equitable relief under Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (Tex.1939). Although KSNG’s original answer was defective, it satisfied the minimum threshold necessary to prevent a default judgment. See Home Savs. of Am. FSB v. Harris County Water Control & Improvement Disk, 928 S.W.2d 217, 218 (Tex.App.-Houston [14th Dist.] 1996, no writ). It was not until the trial court struck KSNG’s answer that the company was in default. Immediately after striking the answer, the trial court rendered a default judgment against KSNG, and the written order striking the answer is contained within the final default judgment. Applying Craddock from the point in time that KSNG had no answer on file, the record shows KSNG had no time or opportunity to cure its default status. Yet, two days after judgment was rendered, KSNG hired an attorney and attempted to defend the claim. Within seven business days, the attorney for KSNG filed an amended answer and a motion for new trial encompassing each of the Crad-dock elements. No conscious indifference or intentional conduct in not filing an answer sooner is present. The record also shows that KSNG met each of the other Craddock elements. Craddock dictates reversal of the trial court’s default judgment.