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Marquez v. Providence Memorial Hospital Tenet Healthcare Corp.9/27/2001
Dist.] 1999, pet. denied). The same standard applies to review of the trial court's decision to deny a request for extension of time under Section 13.01(g). See Estello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.--Fort Worth 1998, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or, in other words, acts in an arbitrary or unreasonable manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Pfeiffer v. Jacobs, 29 S.W.3d 193, 196 (Tex.App.--Houston [14th Dist.] 2000, pet. denied). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. See Downer, 701 S.W.2d at 241-42.
Must the Plaintiff Verify the Section 13.01(g) Motion?
Providence, Tenet, and Dr. Vigil maintain that the motion filed on June 23, 1999 could not be considered by the trial court because it had not been verified. Since Marquez did not file a verified motion until after commencement of the July 1 hearing on the motion to dismiss, they argue that it is not timely, and therefore, the trial court did not abuse its discretion in refusing to grant a grace period under Section 13.01(g). In the dismissal orders, the trial court specifically found that Marquez had not timely filed her motion pursuant to Section 13.01(g).
Several courts have held that since the test stated in Section 13.01(g) is obviously derived from Tex.R.Civ.P. 165a(3) and from the familiar standard governing equitable motions for new trial established in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Com.App. 1939), the Legislature intended the elements of Section 13.01(g) to apply in an analogous manner. See, e.g., Nguyen v. Kim, 3 S.W.3d 146, 152 (Tex.App.--Houston [14th Dist.] 1999, no pet.); Broom v. MacMaster, 992 S.W.2d 659, 663 (Tex.App.--Dallas 1999, no pet.); McClure v. Landis, 959 S.W.2d 679, 681 (Tex.App.--Austin 1997, pet. denied). Thus, these cases and others have looked to the case law under Rule 165a(3) and Craddock when examining the meaning of and relationship of the terms "intentional," "conscious indifference," "mistake," and "accident" as used in Section 13.01(g). See Nguyen, 3 S.W.3d at 152; Broom, 992 S.W.2d at 663; McClure, 959 S.W.2d at 681. No case, however, has directly addressed the question whether the procedural requirements of Craddock and Rule 165a(3) should also apply to a motion filed pursuant to Section 13.01(g).
Providence and Tenet are correct that Craddock and subsequent decisions require a sworn motion for new trial or a motion supported by affidavits. See Craddock, 133 S.W.2d at 125-26; Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)(explaining Craddock's requirement that the motion set up meritorious defense; stating that 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 prima facie evidence to show the existence of a meritorious defense). The Supreme Court initially imposed this requirement in order to prevent cases from being reopened on the basis of fictitious or unmeritorious defenses. See Ivy, 407 S.W.2d at 214. The attached affidavits do not have to be offered into evidence in order to be considered by the trial court on any of the Craddock elements. Director, State Employees Workers' Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). It is sufficient that the affidavits are attached to the motion for new trial and are part of the record. Id. If the fac
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