      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00800-CV



                                     Ardetra Lewis, Appellant

                                                 v.

                             Housing Authority of Austin, Appellee


           FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
        NO. C-1-CV-15-008003, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Ardeta Lewis appeals from the trial court’s post-answer default judgment against her

in favor of the Housing Authority of Austin (HACA). In two issues, Lewis contends that the trial

court abused its discretion in proceeding to trial and denying her motion to set aside the default

judgment because HACA failed to prove that she had actual or constructive notice of the trial setting

and Lewis met the three-part test under Craddock for setting aside a default judgment. See Craddock

v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). For the reasons that follow, we

affirm the trial court’s judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Lewis was a resident of Chalmers Court, a public housing community owned and

operated by HACA. Jarrell Green is the father of Lewis’s child and was a frequent guest at her

residence. HACA brought a forcible detainer action against Lewis in justice court alleging
nonpayment of rent and seeking to evict her and all other occupants. See Tex. R. Civ. P. 500.3(d)

(providing for eviction cases in justice court). Lewis appeared pro se at an informal conference and

at the bench trial. The justice court awarded HACA judgment for possession of the premises, rent,

and costs. Acting pro se, Lewis filed an appeal, seeking trial de novo in the county court. See id.

506.3 (providing that appeal from justice court must be tried de novo in county court). The county

clerk issued a Notice of Appeal, which confirmed receipt and filing of the appeal transcript from the

justice court and notified Lewis that if she had not filed a written answer in justice court, it was

necessary for her to do so in county court, and that if an answer was not received within eight days

after the appeal transcript was filed, the other party could take a default judgment against her.1 In

September 2015, the county clerk mailed the Notice of Appeal to Lewis at her Chalmers Court

address by certified mail, return receipt requested. The notice was signed for, and the signature on

the return receipt appears to resemble the name “Jarrell Green.”2 HACA asserts that the county clerk

also mailed the Notice of Appeal by first class mail, but the record does not contain a copy of any

such mailing.

                In October 2015, HACA sent Lewis a letter asking Lewis to choose between

suggested trial dates and times and to contact HACA’s counsel with her selection. HACA sent the

letter to Lewis at her Chalmers Court address by first class mail and by certified mail, return receipt

       1
         The appellate record does not reflect whether Lewis filed a written answer in the justice
court proceeding.
       2
          In its opening brief, HACA argues that the signature appears to be that of Green. However,
in response to Lewis’s reply brief—in which Lewis points out that Green denied signing for any
letters for Lewis, that HACA did not ask him if the signature on the return receipt was his, and that
the record contains no examples of Green’s signature—HACA concedes that the evidence does not
support an inference that Green signed the return receipt.

                                                  2
requested. When HACA did not receive a response from Lewis regarding a trial date, it set the case

for trial on November 10, 2015, at 9:00 a.m., filed its First Amended Petition for Forcible Detainer,

and sent the amended petition and a Notice of Trial Setting to Lewis at her Chalmers Court address.

The notice included a certificate of service signed by counsel for HACA, certifying that the notice

had been served on Lewis at her Chalmers Court address on November 2, 2015, by first class mail

and certified mail, return receipt requested. Lewis did not attend the trial on November 10, 2015.

HACA offered into evidence copies of the two letters it had sent Lewis with proof of mailing,

including copies of envelopes, certified mail receipts, and U. S. Postal Service tracking information.

The tracking information for both certified letters indicated that the notices of certified mail were

delivered but did not indicate whether the letters were claimed or returned unclaimed. The trial court

entered a default judgment against Lewis and awarded HACA judgment for possession, rent, late

fees, cable charges, maintenance charges, and attorney’s fees.

                Acting pro se, Lewis filed a Motion to Set Aside Default Judgment, asserting that she

had not received notice of the trial setting. At the hearing on the motion, HACA offered into

evidence the same exhibits it had offered at trial concerning mailing of the two letters and notice of

trial setting, with updated U. S. Postal Service tracking information for the certified letters indicating

that the maximum hold time had expired and they remained unclaimed. The tracking information

for the second letter and notice of trial also indicated that it had been returned to the U. S. Postal

Service. HACA also offered into evidence a copy of the county clerk’s Notice of Appeal with the

signed certified mail return receipt. Lewis and Green both testified that Lewis had not received

notice of the trial setting. Lewis verified her address and stated that it was the only address she



                                                    3
used—that she had “used another address” but her mail “comes [to the Chalmers Court address]

now.” She testified that she “received other court dates . . . other hearings . . . in the mail” and “went

to every single one of those” but did not receive either the first class or certified mailings concerning

trial and if she had, she “would have been at court.” When asked how she could explain why the

letter mailed by first class was not returned as undeliverable, she stated, “I can’t explain it.” When

asked “who all” lived at her apartment, she responded, “I live in my apartment.” Lewis also testified

that there is no one else who stays with her that picks up her mail.

                 Green testified that he lived with his mother and did not “stay” at Lewis’s apartment

but was there every day. He referred to Lewis’s residence as “our apartment” and stated that there

were five other apartments with the same number, that all the mailboxes were in the same area, and

that “we get other people’s mail all the time,” but as far as the notice that was supposed to have

come, “we’ve never gotten it back from anybody else.” Green testified that Lewis receives mail at

the Chalmers Court address, that her address had not changed in the past three months, that he

checks the mail sometimes if Lewis is busy and asks him to, and that Lewis also receives mail at a

couple of other addresses. He testified that he did not recall signing for any mail or envelopes for

Lewis but had signed for a package. HACA did not ask Green if the signature on the return receipt

for the Notice of Appeal was his signature, and neither party offered an example of his signature

into evidence.

                 In addition, Green testified that Lewis went to the county clerk’s office to pay her rent

on November 5, 2015, five days before the trial, asked about any court dates, and was told that there

were none.       Lewis alleged the same in her Motion to Set Aside Default Judgment dated



                                                    4
November 30, 2015.3 The trial court denied Lewis’s Motion to Set Aside Default Judgment. This

appeal followed.4


                                    STANDARD OF REVIEW

               We review a trial court’s denial of a motion for new trial for an abuse of discretion.

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). A trial court abuses its

discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules

and principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). Generally, before a default

judgment can be set aside and a new trial granted, the defaulting party must satisfy the three elements

known as the Craddock test. Craddock, 133 S.W.2d at 126; Cliff v. Huggins, 724 S.W.2d 778, 779

(Tex. 1987) (stating that Craddock test applies to post-answer default judgments). The Craddock

test is well established: A trial court should set aside a default judgment and order a new trial in any

case in which (1) the defaulting party’s failure to answer or to appear was not intentional, or the

result of conscious indifference, but was due to a mistake or an accident; (2) the defaulting party has

a meritorious defense or claim; and (3) the motion is filed at a time when the granting of a new trial

will not occasion delay or work other injury to the prevailing party. Craddock, 133 S.W.2d at 126.

When a defaulting party moving for new trial meets all three elements of the Craddock test, then a

       3
          The appellate record also contains a second Motion to Set Aside Default Judgment dated
December14, 2015—after the trial court had signed an order denying Lewis’s motion to set aside—in
which Lewis alleged that the signed return receipt offered into evidence at the hearing on her motion
to set aside was falsified, disputed that the signature on the return receipt was that of Green, and
asserted that even if it were his signature, she should not “be held responsible or liable for someone
who is not a part of the case or on my lease.”
       4
         Lewis obtained counsel through the Texas Third Court of Appeals Pro Bono Program and
does not appear pro se in this appeal.

                                                   5
trial court abuses its discretion if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926. A

party who proves lack of notice of a trial setting satisfies the first Craddock element because one

cannot show intent or conscious indifference with regard to a trial of which one is unaware. Mathis

v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (per curiam); Limestone Constr., Inc. v. Summit

Commercial Indus. Props., Inc., 143 S.W.3d 538, 543–44 (Tex. App.—Austin 2004, no pet.) (citing

Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.—Austin 2001, pet. denied)).


                                            DISCUSSION

                In her first issue, Lewis argues that the trial court abused its discretion in proceeding

to trial and in denying her motion to set aside the default judgment because HACA failed to prove

that she had actual or constructive notice of the trial setting. A defendant who has made an

appearance in a cause is entitled to notice of the trial setting as a matter of due process under the

Fourteenth Amendment. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84–85 (1988); LBL Oil Co.

v. International Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam). Under

Rule 21a “[e]very notice required by [the Texas Rules of Civil Procedure] . . . may be served in

person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court

in its discretion may direct.” Tex. R. Civ. P. 21a(a)(2). Service by mail is complete upon deposit

of the documents in a properly addressed envelope, postage prepaid, in a post office or

official depository of the U. S. Postal Service. Tex. R. Civ. P. 21a(b)(1); Giddings v. Curtis,

No. 04-15-00102-CV, 2015 Tex. App. LEXIS 11564, at *6 (Tex. App.—San Antonio Nov. 10, 2015,

no pet.) (mem. op.); Approximately $14,980.00 v. State, 261 S.W.3d 182, 186 (Tex. App.—Houston

[14th Dist.] 2008, no pet.). A certificate of service by a party or an attorney of record, or the return

                                                   6
of the officer, or the affidavit of any person showing an authorized method of service shall be prima

facie evidence of the fact of service. Tex. R. Civ. P. 21a(e); Mathis, 166 S.W.3d at 745. “[N]otice

properly sent pursuant to Rule 21a raises a presumption that notice was received.” Mathis,

166 S.W.3d at 745; accord Approximately $14,980.00, 261 S.W.3d at 186. The presumption may

be rebutted by opposing evidence that the mailing was not received. Tex. R. Civ. P. 21a(e);

Approximately $14,980.00, 261 S.W.3d at 186.


Trial and Default Judgment

                At the trial, HACA’s evidence included copies of both of the letters it had sent—the

letter requesting trial dates and the letter and notice of trial setting—addressed to Lewis at her

Chalmers Court address, along with copies of the envelopes sent by first class mail. Service by first

class mail was a proper manner of service prescribed by Rule 21a. See Tex. R. Civ. P. 21a(a)(2)

(providing for service by “mail”); Mandel v. Lewisville Indep. Sch. Dist., No. 02-15-00222-CV,

2016 Tex. App. LEXIS 6983, at *4 n.3 (Tex. App.—Fort Worth June 30, 2016, pet. filed) (observing

that Rules 21a provides for service “by mail”); Giddings, 2015 Tex. App. LEXIS 11564, at *6

(noting that Rule 21a was amended effective January 1, 2014, to permit service by “regular mail”);

Bexar Cty. Hosp. v. Harlan, No. 04-15-00155-CV, 2015 Tex. App. LEXIS 8188, at *12 (Tex.

App.—San Antonio Aug. 5, 2015, pet. denied) (mem. op.) (same); see also Lamont A. Jefferson,

Trends and Traps in Rules of Civil Procedure, 70 The Advoc. (Tex.) 48, 59 (2015) (“For documents

not filed electronically, the notable changes to Rule 21a are the . . . elimination of the ‘certified or

registered’ mail requirement for traditional mail.”).




                                                   7
                The notice of trial setting contained a certificate of service stating that Lewis had been

served by first class mail in compliance with Rule 21a, creating a presumption that Lewis had been

properly served with notice of the hearing. See Tex. R. Civ. P. 21a(e); Mathis, 166 S.W.3d at 745.

Lewis did not appear at trial and thus did not offer any evidence that she did not receive the first

class mailing so as to rebut this presumption. See Tex. R. Civ. P. 21a(e); Approximately $14,980.00,

261 S.W.3d at 186. Because there is nothing in the trial court’s record that rebuts this presumption,

and there is affirmative evidence that notice of the trial setting was sent to Lewis, the trial court did

not abuse its discretion in proceeding with the trial.5 See Dougherty-Williams v. Dougherty,

No 01-13-01087-CV, 2014 Tex. App. LEXIS 6659, at *5–6 (Tex. App.—Houston [1st Dist.]




        5
          As noted above, although HACA offered updated U. S. Postal Service tracking information
at the hearing on the Motion to Set Aside Default Judgment, the tracking information offered at trial
indicated that notice of delivery had been left at Lewis’s Chalmers Court address but did not indicate
that the letter was unclaimed or returned to the U. S. Postal Service. Evidence that a letter has been
returned by the U. S. Postal Service “unclaimed” rebuts the presumption of service. See In re E.A.,
287 S.W.3d 1, 5 (Tex. 2009) (concluding that presumption of service arising from proper
mailing was negated by mailing’s return as “unclaimed”); Approximately $14,980.00 v. State,
261 S.W.3d 182, 189 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that returned
envelope bearing the U. S. Postal Service “unclaimed” mark and return receipt indicating that
delivery was twice attempted but not completed rebutted presumption); Etheredge v. Hidden Valley
Airpark Ass’n, 169 S.W.3d 378, 382 (Tex. App.—Fort Worth 2005, pet. denied) (stating that
presumption of notice was rebutted where notice was returned marked “unclaimed”). Even if we
were to assume that the U. S. Postal Service tracking information admitted into evidence at the time
of trial was sufficient to establish that the certified letters were “unclaimed” so as to rebut the
presumption of service by certified mail, that would not affect our determination based on Lewis’s
failure at trial to rebut the presumption of notice by first class mail. See Tex. R. Civ. P. 21a(a)(2);
Mandel v. Lewisville Indep. Sch. Dist., No. 02-15-00222-CV, 2016 Tex. App. LEXIS 6983, at *4
n.3 (Tex. App.—Fort Worth June 30, 2016, pet. filed); Giddings v. Curtis, No. 04-15-00102-CV,
2015 Tex. App. LEXIS 11564, at *6 (Tex. App.—San Antonio Nov. 10, 2015, no pet.) (mem. op.).


                                                    8
June 19, 2014, no pet.) (mem. op.) (holding that trial court did not err in granting default judgment

where plaintiff failed to rebut affirmative evidence of notice of trial setting).


Motion to Set Aside Default Judgment

                At the hearing on Lewis’s Motion to Set Aside Default Judgment, Lewis and Green

testified that Lewis did not receive notice of the trial, thus rebutting the presumption of service. See

Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (per curiam) (concluding that

presumption of timely service was rebutted by party’s affidavit); Cliff, 724 S.W.2d at 779–80

(holding that presumption is not evidence and “vanishes” when opposing evidence is introduced and

that appellant rebutted presumption of notice of trial setting by uncontroverted sworn affidavit and

testimony at hearing that he never received notice); In re Estate of Check, 438 S.W.3d 829, 834–35

(Tex. App.—San Antonio 2014, no pet.) (holding that attorney’s affidavit that he never received

document in question rebutted presumption); Approximately $14,980.00, 261 S.W.3d at 189

(concluding that appellant successfully rebutted presumption of receipt where attorney testified to

not receiving notice); Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex. App.—Houston [1st Dist.]

2004, no pet.) (stating that mere denial of receipt is sufficient to rebut presumption of receipt). In

addition, presumption of notice by certified mail was rebutted by the updated tracking information

indicating that the notice of trial setting was returned to the U. S. Postal Service unclaimed. See

In re E.A., 287 S.W.3d 1, 5 (Tex. 2009) (concluding that presumption of service arising from proper

mailing was negated by mailing’s return as “unclaimed”); Approximately $14,980.00, 261 S.W.3d

at 189) (holding that returned envelope bearing the U. S. Postal Service “unclaimed” mark and return

receipt indicating that delivery was twice attempted but not completed rebutted presumption);

                                                   9
Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378, 382 (Tex. App.—Fort Worth 2005,

pet. denied) (stating that presumption of notice was rebutted where notice was returned

marked “unclaimed”).

               However, rebuttal of the presumption of service does not conclusively establish lack

of service. See In re Estate of Check, 438 S.W.3d at 834–35 (holding that rebuttal of presumption

does not end inquiry or conclusively establish absence of service). “A presumption is nothing more

than a rule for the guidance of the trial judge in locating the burden of production at a particular

time.” Texas A & M Univ. v. Chambers, 31 S.W.3d 780, 784 (Tex. App.—Austin 2000, pet. denied).

Once a presumption is rebutted, the presumption itself “vanishes,” but the facts giving rise to it do

not vanish. In re Estate of Check, 438 S.W.3d at 835. A denial of receipt is not conclusive and

merely presents a fact issue for the factfinder. Texaco, 137 S.W.3d at 767 (citing Cooper v. Hall,

489 S.W.2d 409, 415 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.)). The evidence on the issue

is then evaluated as it would be in any other case. General Motors Corp. v. Saenz, 873 S.W.2d 353,

359 (Tex. 1993). “The presumption of receipt is overcome conclusively only when ‘the evidence

tending to support the contrary inference is conclusive, or so clear, positive, and disinterested

that it would be unreasonable not to give effect to it as conclusive.” Texaco, 137 S.W.3d at

767–68 (citing Employers’ Nat. Life Ins. Co. of Dal., Tex. v. Willits, 436 S.W.2d 918, 921

(Tex. Civ. App.—Amarillo 1968, writ ref’d n.r.e.) (quoting Southland Life Ins. Co. v. Greenwade,

159 S.W.2d. 854, 857 (Tex. 1942))). Thus, when Lewis rebutted the presumption of notice, the trial

court was presented with an issue of fact to resolve.         See Kelly v. Brenham Floral Co.,




                                                 10
No. 01-12-01000-CV, 2014 Tex. App. LEXIS 9464, at *7–8 (Tex. App.—Houston [1st Dist.]

Aug. 26, 2014, no pet.) (mem. op.); Texaco, 137 S.W.3d at 767.

                At the hearing on the Motion to Set Aside Default Judgment, in addition to offering

documentary evidence of service, HACA’s attorney made statements concerning the mailing of the

two letters. His statements, which were not made under oath, included that he had mailed the letter

regarding trial dates to Lewis at her Chalmers Court address by first class mail and by certified mail,

return receipt requested; that the first class letter was not returned as undeliverable; that he did not

hear from Lewis; that he then sent a second letter to Lewis at the same address by first class mail and

by certified mail, return receipt requested, notifying her that he had set the case for trial and

enclosing a copy of the notice of trial setting; and that the second first class letter was not returned

as undeliverable and the second certified letter was “unclaimed and expired and was returned.”

Although an attorney’s statements generally must be under oath to be considered evidence,

the opponent of the testimony can waive the oath requirement by failing to object when he

knows or should know objection is necessary. See Mathis, 166 S.W.3d at 745; Banda v. Garcia,

955 S.W.2d 270, 272 (Tex. 1997); Martin v. Federal Nat’l Mortg. Ass’n, No. 04-15-00233-CV,

2016 Tex. App. LEXIS 4051, at *5 (Tex. App.—San Antonio Apr. 20, 2016, no pet.) (mem. op).

Here, the record shows that HACA’s attorney was attempting to prove service, and Lewis should

have known to object to the unsworn statements. See Mathis, 166 S.W.3d at 745 (holding that pro

se appellant waived oath requirement when she failed to object to unsworn testimony in

circumstances that clearly indicated opposing counsel was tendering evidence based on personal

knowledge on sole contested issue) (citing Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005)



                                                  11
(stating that pro se litigant is held to the same standards as licensed attorneys and must comply with

applicable laws and rules of procedure)); Banda, 955 S.W.2d at 272 (holding that attorney’s unsworn

statements clearly offered to prove existence and terms of oral agreement were

evidence where opposing party failed to object to trial court’s failure to administer oath); Martin,

2016 Tex. App. LEXIS 4051, at *5 (stating that where attorney was clearly attempting to prove

nonreceipt of service through unsworn statements, opposing party should have known to object).

Therefore, the evidence the trial court had to evaluate consisted of Lewis’s and Green’s denial of

service and HACA’s exhibits and testimony. See Texaco, 137 S.W.3d at 767; Saenz, 873 S.W.2d

at 359.

                When the evidence presented by the defaulting party is controverted by the opposing

side, it is the duty of the trial court, as factfinder, to ascertain the facts surrounding the default, and

in so doing to judge the credibility of witnesses and the weight to be given their testimony.

Sheppard v. Sheppard, No. 07-14-00074-CV, 2015 Tex. App. LEXIS 10691, at *9 (Tex.

App—Amarillo Oct. 15, 2015, no pet.) (mem. op); Fernandez v. Peters, No. 03-09-00687-CV,

2010 Tex. App. LEXIS 8473, at *26 (Tex. App.—Austin Oct. 19, 2010, no pet.) (mem. op); Harmon

Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265 (Tex. App.—Texarkana 1992, writ dism’d);

Jackson v. Mares, 802 S.W.2d 48, 51 (Tex. App.—Corpus Christi 1990, writ denied). In

determining whether a party’s failure to appear was intentional or due to conscience indifference,

a court looks to the knowledge and acts of the party. In the Interest of R.R., 209 S.W.3d 112, 115

(Tex. 2006) (per curiam). Because the trial court can view a witness’s demeanor, the trial court, as




                                                    12
factfinder, is given great latitude to believe or to disbelieve a witness’s testimony, particularly if the

witness is interested in the outcome. In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000).

                Here, when asked to explain how it was that she did not receive the notice sent by

first class mail that was not returned as undeliverable, Lewis stated that she did not understand why

and could not explain it, but she “didn’t receive it.” Green testified that there were other apartments

with the same number, that they got people’s mail all the time and would “go and give it to them,”

but that “anything that—that she has [sic] supposed to be in the mail and it hasn’t came [sic], we’ve

never gotten it back from anybody else.” The trial court could have discredited the testimony of

Lewis and Green that Lewis did not receive the notice of trial setting and credited the evidence and

testimony of HACA that it was mailed to Lewis at her Chalmers Court address by first class mail and

was not returned. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (stating that trier

of fact may believe one witness and disbelieve others and resolve inconsistencies in testimony of any

witness). In addition, the trial court could have discredited Lewis’s and Green’s testimony based on

discrepancies in their testimony, as well as on her assertion in her Motion to Set Aside Default

Judgment and Green’s testimony that Lewis went to the courthouse five days before the trial date,

asked if there was a trial setting, and was told that there was no setting, especially in light of the fact

that the clerk’s record contains the notice of setting and reflects that it was filed ten days prior to the

trial date. “The trial court was entitled to decide whether [Lewis] had presented evidence

‘conclusive, or so clear, positive, and disinterested’ as to overcome the presumption of receipt

[conclusively], and the court resolved this fact issue in favor of the [HACA].” See Texaco,

137 S.W.3d at 768 (quoting Willits, 436 S.W.2d at 921).



                                                    13
                Because we may not substitute our judgment for that of the factfinder, on this record,

we conclude that the trial court did not abuse its discretion in determining that Lewis failed to

establish that she did not receive actual notice of the trial setting and that her failure to appear at trial

was not intentional, or the result of conscious indifference, but was due to a mistake or an accident

and that the trial court did not abuse its discretion in denying Lewis’s Motion to Set Aside

Default Judgment.6 Dolgencorp, 288 S.W.3d at 926; Craddock, 133 S.W.2d at 126; Sheppard,

2015 Tex. App. LEXIS 10691, at *9–10 (concluding that trial court did not abuse discretion in

ascertaining facts and judging credibility of witnesses, determining that appellant’s failure to answer

before default was result of conscience indifference and not due to accident or mistake, and

upholding trial court’s denial of motion for new trial); Kelly, 2014 Tex. App. LEXIS 9464, at *9–10

(holding that trial court did not abuse its discretion in discrediting appellant’s testimony and in

determining that appellant did not satisfy first element of Craddock). Because Lewis failed to satisfy

the first prong of Craddock, we need not consider whether she met the other two requisites. See

Sheppard, 2015 Tex. App. LEXIS 10691, at *10; Munoz v. Rivera, 225 S.W.3d 23, 28 (Tex.

App.—El Paso 2005, no pet.); Continental Cas. Co. v. Davilla, 139 S.W.3d 374, 382 (Tex.

App.—Fort Worth 2004, pet. denied). We overrule Lewis’s first issue.




        6
           Because we conclude that the trial court did not abuse its discretion in determining that
Lewis received actual notice and failed to meet the first element of Craddock, any discussion of
Lewis’s constructive notice is irrelevant. Therefore, we do not reach Lewis’s argument in her first
issue that HACA did not prove that she had constructive notice, and we overrule Lewis’s second
issue, in which she argues that “if Craddock applies to constructive notice cases,” she has shown all
of the Craddock elements. See Tex. R. App. P. 47.1; In re E.A., 287 S.W.3d at 3 (stating that if
defendant is properly served with process, she must prove three Craddock elements to have default
judgment set aside).

                                                     14
                                       CONCLUSION

              Having overruled Lewis’s issues, we affirm the trial court’s judgment.



                                           __________________________________________
                                           Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: December 7, 2016




                                              15
