REVERSE and REMAND and Opinion Filed April 21, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00771-CV
ANDREA M. REYES, Appellant V. GUADALUPE TORRES AND ROSALINDA SILVA, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-13110
MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Garcia Andrea Reyes appeals the entry of a post-answer default judgment against her
in Guadalupe Torres and Rosalinda Silva’s (together, “appellees”) trespass to try
title suit because she did not receive notice of the trial setting.1 We conclude Reyes
proved that she did not receive notice, and therefore the trial court erred in denying
her motion for new trial. Accordingly, we reverse the trial court’s default judgment
and remand the case for a new trial.
1 Appellees did not file a brief. I. BACKGROUND
This case has a convoluted history, and the parties are familiar with the
underlying facts. Therefore, we recite only those facts relevant to our analysis and
disposition.
The parties dispute the ownership of property in Grand Prairie, Texas.
Appellees sued Reyes to quiet title and Reyes answered and appeared through
counsel.
Reyes’s counsel later moved to withdraw, and the court granted the motion.
In March 2019, appellees’ counsel forwarded a copy of the proposed withdrawal
order to Reyes’s daughter, Joyce Gutierrez, via email. Gutierrez said that Reyes did
not have email, but court filings could be emailed to Gutierrez and she would present
and explain them to Reyes.
At some point, it appears that trial was set for March 26, 2019, but there is
nothing in our record establishing when this occurred. And although the record
reflects that appellees’ counsel emailed Gutierrez copies of certain motions and
proposed orders, there is nothing to establish that notice of the March 26 setting was
emailed to Gutierrez or otherwise sent to Reyes.
On March 26, the case was called to trial. Reyes did not appear. The court’s
docket sheet states “default judgment,” but no judgment was signed on that day.
Appellees subsequently filed a “motion for interlocutory judgment” against Reyes
2 based on the March 26 declaration of default. On April 26, 2019, the judge signed a
final judgment against Reyes.
Reyes moved for a new trial. Appellees filed objections and a response. Our
record does not indicate whether the court conducted a hearing or ruled on appellees’
objections. Instead, the motion was overruled by operation of law.
II. ANALYSIS
Although Reyes complains in three issues, the essence of her complaint is that
the trial court erred by denying her motion for new trial. “A motion for new trial is
addressed to the trial court’s discretion and the court’s ruling will not be disturbed
on appeal in the absence of a showing of an abuse of discretion.” Cliff v. Huggins,
724 S.W.2d 778, 778–79 (Tex. 1987). A trial court does not abuse its discretion
when it denies a motion for new trial after entry of default judgment unless the
defaulting party proves the elements identified in Craddock v. Sunshine Bus Lines,
Inc., 133 S.W.2d 124, 126 (1939). See Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 926 (Tex. 2009) (per curiam).
Under Craddock, the party against whom default was entered must show that
(1) her failure to appear was not intentional or the result of conscious indifference,
(2) she has a meritorious defense, and (3) the granting of a new trial will not operate
to cause delay or injury to the opposing party. Cliff, 724 S.W.2d at 779. If the party
proves the first element under Craddock by establishing that she was not given
3 notice of a trial setting, a court may dispense with the second and third elements.
Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005). Thus, the initial question
before us is whether Reyes proved that she did not receive notice of the March 26
trial setting.
The law prefers for cases to be resolved on their merits wherever possible.
Ashworth v. Brzoska, 274 S.W.3d 324, 329 (Tex. App.—Houston [14th Dist.] 2008,
no pet.). We presume a trial court will only hear a case after proper notice has been
given to the parties. Id. Failing to give notice to a party of a trial setting violates the
due process requirements of the Fourteenth Amendment of the United States
Constitution. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex.
2012) (per curiam). In fact, “[a] post-answer default judgment will only be valid if
the defendant received notice of the default judgment hearing.” $429.30 v. State, 896
S.W.2d 363, 366 (Tex. App.—Houston [1st Dist.] 1995, no writ). If there is no such
notice, a default judgment should be reversed. See LBL Oil Co. v. Int'l Power Servs.,
Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam).
Reyes’s affidavit in support of her motion for new trial states that her attorney
did not send her notice of the March 26 setting or inform her that she needed to be
present that day. Likewise, appellees’ counsel provided no notice. Reyes notes that
the motion for interlocutory judgment states that she was served electronically, but
4 she says she does not know what that means.2 Reyes further states that she did not
receive notice that the motion for interlocutory judgment would be presented to the
court.
Although appellees’ response to the motion for new trial raises several
arguments, it does not controvert Reyes’s testimony that she did not receive notice
of the trial setting.3 Instead, it alleges without supporting evidence that Reyes was
provided “notice through her counsel, by the court, on November 27, 2018.” There
is nothing in the record to support this assertion. Appellees further allege that the
court held a status conference concerning Reyes’s counsel on March 18, 2019 at
which Reyes appeared and “notice of the March 26, 2019 trial setting was indicated.”
Again, nothing in the record establishes this as fact.
When, as here, a defendant presents verified affidavit testimony establishing
that she never received notice of the trial setting, and the testimony is
uncontroverted, the trial court must accept the testimony as true, set the default
judgment aside and grant the defendant a new trial. See Sutherland v. Spencer, 376
S.W.3d 752, 755 (Tex. 2012) (defendant satisfies her burden by presenting
2 Moreover, as recited in the motion, by the time the interlocutory motion was filed, “default judgment” had already been noted on the court’s docket. 3 For example, the motion objects to Reyes’s affidavit as incompetent because she does not speak English and there was no certificate of translation. Our record shows otherwise. The appellees also challenge the attorney’s verification for the motion as improper and conclusory.
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REVERSE and REMAND and Opinion Filed April 21, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00771-CV
ANDREA M. REYES, Appellant V. GUADALUPE TORRES AND ROSALINDA SILVA, Appellees
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-13110
MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Garcia Andrea Reyes appeals the entry of a post-answer default judgment against her
in Guadalupe Torres and Rosalinda Silva’s (together, “appellees”) trespass to try
title suit because she did not receive notice of the trial setting.1 We conclude Reyes
proved that she did not receive notice, and therefore the trial court erred in denying
her motion for new trial. Accordingly, we reverse the trial court’s default judgment
and remand the case for a new trial.
1 Appellees did not file a brief. I. BACKGROUND
This case has a convoluted history, and the parties are familiar with the
underlying facts. Therefore, we recite only those facts relevant to our analysis and
disposition.
The parties dispute the ownership of property in Grand Prairie, Texas.
Appellees sued Reyes to quiet title and Reyes answered and appeared through
counsel.
Reyes’s counsel later moved to withdraw, and the court granted the motion.
In March 2019, appellees’ counsel forwarded a copy of the proposed withdrawal
order to Reyes’s daughter, Joyce Gutierrez, via email. Gutierrez said that Reyes did
not have email, but court filings could be emailed to Gutierrez and she would present
and explain them to Reyes.
At some point, it appears that trial was set for March 26, 2019, but there is
nothing in our record establishing when this occurred. And although the record
reflects that appellees’ counsel emailed Gutierrez copies of certain motions and
proposed orders, there is nothing to establish that notice of the March 26 setting was
emailed to Gutierrez or otherwise sent to Reyes.
On March 26, the case was called to trial. Reyes did not appear. The court’s
docket sheet states “default judgment,” but no judgment was signed on that day.
Appellees subsequently filed a “motion for interlocutory judgment” against Reyes
2 based on the March 26 declaration of default. On April 26, 2019, the judge signed a
final judgment against Reyes.
Reyes moved for a new trial. Appellees filed objections and a response. Our
record does not indicate whether the court conducted a hearing or ruled on appellees’
objections. Instead, the motion was overruled by operation of law.
II. ANALYSIS
Although Reyes complains in three issues, the essence of her complaint is that
the trial court erred by denying her motion for new trial. “A motion for new trial is
addressed to the trial court’s discretion and the court’s ruling will not be disturbed
on appeal in the absence of a showing of an abuse of discretion.” Cliff v. Huggins,
724 S.W.2d 778, 778–79 (Tex. 1987). A trial court does not abuse its discretion
when it denies a motion for new trial after entry of default judgment unless the
defaulting party proves the elements identified in Craddock v. Sunshine Bus Lines,
Inc., 133 S.W.2d 124, 126 (1939). See Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 926 (Tex. 2009) (per curiam).
Under Craddock, the party against whom default was entered must show that
(1) her failure to appear was not intentional or the result of conscious indifference,
(2) she has a meritorious defense, and (3) the granting of a new trial will not operate
to cause delay or injury to the opposing party. Cliff, 724 S.W.2d at 779. If the party
proves the first element under Craddock by establishing that she was not given
3 notice of a trial setting, a court may dispense with the second and third elements.
Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005). Thus, the initial question
before us is whether Reyes proved that she did not receive notice of the March 26
trial setting.
The law prefers for cases to be resolved on their merits wherever possible.
Ashworth v. Brzoska, 274 S.W.3d 324, 329 (Tex. App.—Houston [14th Dist.] 2008,
no pet.). We presume a trial court will only hear a case after proper notice has been
given to the parties. Id. Failing to give notice to a party of a trial setting violates the
due process requirements of the Fourteenth Amendment of the United States
Constitution. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex.
2012) (per curiam). In fact, “[a] post-answer default judgment will only be valid if
the defendant received notice of the default judgment hearing.” $429.30 v. State, 896
S.W.2d 363, 366 (Tex. App.—Houston [1st Dist.] 1995, no writ). If there is no such
notice, a default judgment should be reversed. See LBL Oil Co. v. Int'l Power Servs.,
Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam).
Reyes’s affidavit in support of her motion for new trial states that her attorney
did not send her notice of the March 26 setting or inform her that she needed to be
present that day. Likewise, appellees’ counsel provided no notice. Reyes notes that
the motion for interlocutory judgment states that she was served electronically, but
4 she says she does not know what that means.2 Reyes further states that she did not
receive notice that the motion for interlocutory judgment would be presented to the
court.
Although appellees’ response to the motion for new trial raises several
arguments, it does not controvert Reyes’s testimony that she did not receive notice
of the trial setting.3 Instead, it alleges without supporting evidence that Reyes was
provided “notice through her counsel, by the court, on November 27, 2018.” There
is nothing in the record to support this assertion. Appellees further allege that the
court held a status conference concerning Reyes’s counsel on March 18, 2019 at
which Reyes appeared and “notice of the March 26, 2019 trial setting was indicated.”
Again, nothing in the record establishes this as fact.
When, as here, a defendant presents verified affidavit testimony establishing
that she never received notice of the trial setting, and the testimony is
uncontroverted, the trial court must accept the testimony as true, set the default
judgment aside and grant the defendant a new trial. See Sutherland v. Spencer, 376
S.W.3d 752, 755 (Tex. 2012) (defendant satisfies her burden by presenting
2 Moreover, as recited in the motion, by the time the interlocutory motion was filed, “default judgment” had already been noted on the court’s docket. 3 For example, the motion objects to Reyes’s affidavit as incompetent because she does not speak English and there was no certificate of translation. Our record shows otherwise. The appellees also challenge the attorney’s verification for the motion as improper and conclusory. As we previously noted, there is no indication the court considered or ruled on appellees’ objections. Moreover, there is no argument before us challenging the motion for new trial as deficient. 5 uncontroverted factual assertions that, if true, entitle her to new trial); Cliff v.
Huggins, 724 S.W.2d 778, 779 (Tex. 1987) (holding that defendant established he
was entitled to new trial when he provided uncontroverted testimony that he never
received notice of trial setting). Because Reyes’s affidavit is uncontroverted, the
evidence establishes that Reyes did not receive notice of the trial setting.
Consequently, the trial court abused its discretion by denying Reyes’s motion for
new trial. We reverse the trial court’s default judgment and remand this proceeding
for a new trial. See TEX. R. APP. P. 43.2(d).
/Dennise Garcia/ DENNISE GARCIA JUSTICE
190771F.P05
6 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANDREA M. REYES, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-19-00771-CV V. Trial Court Cause No. DC-17-13110. Opinion delivered by Justice Garcia. GUADALUPE TORRES AND Justices Myers and Partida-Kipness ROSALINDA SILVA, Appellees participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial.
It is ORDERED that appellant ANDREA M. REYES recover her costs of this appeal from appellee GUADALUPE TORRES AND ROSALINDA SILVA.
Judgment entered April 21, 2021.