Opinion issued October 22, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00902-CV
                            ———————————
                  MONICA VASQUEZ PARSONS, Appellant
                                         V.
                         PAUL G. PARSONS, Appellee


                    On Appeal from the 310th District Court
                             Harris County, Texas
                       Trial Court Case No. 2017-77987


                          MEMORANDUM OPINION

      Monica Vasquez Parsons filed her petition for divorce from Paul G. Parsons.

Paul answered. Monica and her attorney failed to appear at trial, and the trial court

entered a post-answer default judgment against Monica. She filed a motion for new
trial with accompanying evidence. The trial court denied the motion, and Monica

appealed.

      In her sole issue, Monica contends that the trial court abused its discretion in

denying her motion for new trial because she presented evidence that her failure to

appear was not intentional or due to conscious indifference. We affirm.

                                   Background

      Monica married Paul in 2006. They did not have children. After 11 years of

marriage, Monica filed a petition for divorce. Among the grounds for divorce,

Monica claimed that the marriage had become “insupportable because of discord

or conflict of personalities.” Monica asserted that the court should award her a

disproportionate share of the marital estate for several reasons, including “fault in

the breakup of the marriage,” “disparity of earning power of the spouses,”

“wasting of community assets,” and “the size and nature of the separate estates of

the spouses.”

      Paul answered and filed a counter-petition for divorce. He requested a just

and right division of the marital estate if the parties did not execute an agreement

for the division of their estate. Paul also requested confirmation that certain

property was his separate property and reimbursement from the community estate.

      The trial court amended its initial scheduling order to allow the parties time

to attend mediation. When the parties appeared at the new trial setting, the trial


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court rescheduled trial because the mediator had not recessed mediation. Both

parties received notice of a third trial setting. The parties scheduled a date to

resume mediation, but Monica and her attorney did not appear at mediation. The

mediator filed an impasse letter.

      On the day of the third trial setting, Paul and his attorney appeared and

requested a default judgment when Monica and her attorney did not appear. Paul

testified about why the parties were dissolving their marriage. Paul’s attorney

informed the trial court that Monica’s attorney had not responded to his discovery

requests. The trial court admitted the exhibits introduced by Paul’s attorney. Paul’s

attorney also testified to his attorney’s fees. After considering the evidence, the

trial court entered a post-answer default judgment against Monica, granted the

divorce, and awarded Paul $15,612.61 for attorney’s fees. The trial court’s order

divided the marital estate and stated that the division was just and right.

      Monica moved for a new trial, arguing that her non-appearance was due to a

mistake or accident because her attorney had a “conflict with another case,” she

tried to “finalize arrangements for the substitute attorney to cover the trial setting,”

yet the substitute attorney failed to appear. Monica explained that she did not

appear because she thought the trial had been reset. Monica’s motion was

supported by her attorney’s affidavit. Paul did not respond to the motion.




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      The trial court held a hearing on the motion for new trial. Monica’s attorney

explained that the substitute attorney who she had arranged to appear on her behalf

had broken her ankle. Although the substitute attorney texted her about the injury,

Monica’s attorney did not receive the message in time. The substitute attorney did

not appear at the new-trial hearing to testify. Based on the arguments of counsel

and evidence, and after noting that Monica’s motion for new trial said nothing

about a medical emergency, the trial court denied Monica’s motion for new trial.

Monica appeals.

                         Denial of Motion for New Trial

      Monica argues that the trial court abused its discretion in denying her motion

for new trial because she presented evidence that her failure to appear was not

intentional or due to conscious indifference and because she meets the new-trial

test set forth in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.

1939).

A.    Applicable law and standard of review

      A post-answer default judgment is permissible when an answer is filed in a

case but a party fails to appear for trial. See Stoner v. Thompson, 578 S.W.2d 679,

682 (Tex. 1979). A post-answer default judgment is valid only if the defaulting

party received adequate notice of the trial setting or default-judgment hearing. In re

$475,001.16, 96 S.W.3d 625, 627 (Tex. App.—Houston [1st Dist.] 2002, no pet.)


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(explaining notice is a requirement before entry of a post-answer default

judgment); TEX. R. CIV. P. 245 (providing that, “when a case previously has been

set for trial, the Court may reset said contested case to a later date on any

reasonable notice to the parties or by agreement of the parties”). If a party receives

post-answer notice of a trial setting and fails to appear, and the trial court grants a

post-answer default judgment, the party may move for a new trial, which should be

granted if she establishes all three of the Craddock prongs: (1) her non-appearance

resulted from an accident or mistake and not intentional or the result of conscious

indifference; (2) the motion for new trial alleges a meritorious defense; and (3)

granting the motion will not cause undue delay or otherwise injure the non-movant.

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (discussing

Craddock test); Lynch v. Lynch, 540 S.W.3d 107, 121 (Tex. App.—Houston [1st

Dist.] 2017, pet. denied) (same).

      “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 (Tex. 1987). However, a

trial court abuses its discretion by denying a new trial when all three Craddock

elements are met. Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d

266, 268 (Tex. 1994).




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B.    Contrary to Paul’s contention, Monica did not waive analysis under
      Craddock

      The Texas Supreme Court has stated that its purpose “in adopting the

Craddock standard was to alleviate unduly harsh and unjust results at a point in

time when the defaulting party has no other remedy available.” Carpenter v.

Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (citing Craddock,

133 S.W.2d at 126). The Craddock test does not apply when the rules of civil

procedure provide a defaulting party with a remedy. Id. Relying on Carpenter v.

Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002), Paul asserts that

Monica is not entitled to any relief under the Craddock test because Rule 251 of

the Texas Rules of Civil Procedure allows a party to move for continuance of a

trial setting. TEX. R. CIV. P. 251 (governing continuances); see Carpenter, 98

S.W.3d at 685.

      In Carpenter, Cimarron received notice of Carpenter’s summary-judgment

motion and scheduled a hearing on the motion but failed to timely respond. Id. at

684. On the day of the hearing, Cimarron filed a motion for leave to file an

untimely response, its proposed response, and a motion for continuance. Id. at 685.

The trial court denied both motions and granted summary judgment in favor of

Carpenter. Id. Cimarron filed a motion for new trial, requesting that the court set

aside the judgment based on equitable principles established in Craddock. Id. at

685. The Court held that Craddock does not apply when procedural rules provide
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the defaulting party a remedy. The Court held that Craddock does not apply “to a

motion for new trial filed after summary judgment is granted on a motion to which

the nonmovant failed to timely respond when the respondent had notice of the

hearing and an opportunity to employ the means our civil procedure rules make

available to alter the deadlines Rule 166a imposes.” Id. at 683–84.

      Carpenter is distinguishable from this case because the procedural rules

were unavailable to Monica before default occurred. In Carpenter, the defaulting

party knew of its failure to respond before summary judgment was entered and “at

a point in time when the rules of procedure provided other remedies” Dolgencorp

of Texas, Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009) (distinguishing

Carpenter). The party moved for relief under those rules before default, but the

trial court denied the party’s motions. Under those circumstances, Craddock was

unavailable. Here, Monica’s attorney alleged that she knew she had conflicting

settings and arranged for substitute counsel to appear for her before trial. Paul

would require Monica to have moved for a continuance before Monica would have

had any reason to believe she needed to avail herself of any remedies under the

rules of civil procedure to avoid a default because substitute counsel was supposed

to appear on her behalf. C.f. Smith v. Babcock & Wilcox Const. Co., Inc., 913

S.W.2d 467 (Tex. 1995) (concluding the trial court abused its discretion by

dismissing case because attorney who had conflicting case settings failed to appear


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for trial after the court denied his motion for continuance). We reject Paul’s

assertion that Monica is foreclosed from any relief under Craddock for having

failed to move for a continuance before her trial setting, while under a belief that

an attorney was to appear in her attorney’s place. We now address the Craddock

standard.

C.    Trial court did not abuse its discretion

      Because it is dispositive, we address only the first prong of the Craddock

test, which required Monica to establish that her failure to appear for trial was not

intentional or the result of conscious indifference. 133 S.W.2d at 126. The first

Craddock element is satisfied when the defaulting party’s “factual assertions, if

true, negate intentional or consciously indifferent conduct . . . and the factual

assertions are not controverted.” Roman v. Ramirez, 573 S.W.3d 341, 352 (Tex.

App.—El Paso 2019, pet. denied) (citing Sutherland v. Spencer, 376 S.W.3d 752,

755 (Tex. 2012)).

      Along with her motion for new trial, Monica presented email

communications to show attempts to schedule mediation because, in her view,

“mediation was not completed” and she did not receive notice of the mediation

date. The mediation status suggested to Monica’s attorney that trial would not

move forward. Monica’s attorney also explained her non-appearance at trial:

      Specifically, undersigned attorney had a conflict with another case.
      Undersigned attorney thought another attorney was covering the
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      hearing, however due to a technological defect the substitute attorney
      never received confirmation from undersigned attorney to finalize
      arrangements for the substitute attorney to cover the trial setting.

Monica attached an affidavit from her attorney attesting to the truth, accuracy, and

personal knowledge of the facts in the motion.

      Paul presented evidence as well. First, Paul submitted a letter from the

mediator showing the parties confirmed a date for the rescheduled mediation, and

he explained that neither Monica nor her counsel appeared despite receiving

notice. Second, Paul informed the court that Monica failed to answer discovery

despite several requests.

      The trial court, as factfinder, is the sole judge of each witness’s credibility

and the weight to be given to their testimony. Dougherty-Williams v. Dougherty,

No. 01-13-01087-CV, 2014 WL 2809827, at *6 (Tex. App.—Houston [1st Dist.]

June 19, 2014, no pet.) (mem. op.). And “when we review a ruling that results from

the trial court’s having resolved underlying facts, we must defer to the trial court’s

factual resolutions, and any credibility determinations that may have affected those

resolutions, and may not substitute our judgment for the trial court’s judgment in

those matters.” George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.—Houston

[1st Dist.] 2007, no pet.).

      We must defer to the trial court’s credibility determinations to determine

whether non-appearance was intentional or due to conscious indifference. Estate of


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Rivers, No. 01-17-00879-CV, 2018 WL 4354351, at *4 (Tex. App.—Houston [1st

Dist.] Sept. 13, 2018, no pet.) (mem. op.). It was within the trial court’s discretion

to disbelieve Monica’s attorney’s explanation of her failure to appear. While her

motion described a “technological defect” that prevented her from receiving actual

notice of the substitute attorney’s non-appearance, it did not describe the

technological defect or identify the substitute attorney. Moreover, that explanation

was inconsistent with her explanation at the new-trial hearing about a leg injury. At

the hearing on the motion for new trial, Monica’s attorney explained that her

associate, D. Baum, sent a text message notify Monica’s attorney about her broken

ankle, but Monica’s attorney did not receive it. The explanation at the hearing did

not align with the explanation in the written new-trial motion. The court noted the

discrepancy at the hearing.

      It was also within the trial court’s discretion to disbelieve that Monica’s non-

appearance was due to a misunderstanding about the status of mediation. At the

hearing on the motion, Monica’s attorney stated that Monica did not appear

because an associate would appear to reset the case. Yet, no one appeared, and it

was within the trial court’s discretion to disbelieve the explanation for the non-

appearance.

      The trial court observed the inconsistencies in Monica’s explanation, made

credibility determinations, and weighed the evidence before denying Monica’s


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motion for new trial. On this evidence and in deference to the trial court’s

credibility determinations, we conclude that the trial court reasonably could have

found that the failure to appear at the trial setting was intentional or consciously

indifferent conduct. See George, 238 S.W.3d at 468; Rivers, 2018 WL 4354351, at

*4. Thus, we further conclude that the trial court did not abuse its discretion in

denying Monica’s motion for new trial. We overrule Monica’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Sarah Beth Landau
                                             Justice

Panel consists of Justices Lloyd, Goodman, and Landau.




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