      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00110-CV



                                Tobbie Tineeka Jones, Appellant

                                                  v.

                                   Tamar Hays Jones, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
          NO. 260,909-E, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In this divorce case involving the custody of children, Tobbie Tineeka Jones appeals

the trial court’s post-appearance default judgment against her.1 Because we conclude that the trial

court abused its discretion when it refused to grant Tobbie’s motion for new trial, we reverse and

remand the case to the trial court for further proceedings consistent with this opinion.2


                                         BACKGROUND

                Tobbie filed a petition for divorce in November 2012, and the parties filed a

temporary agreement in December 2012. The parties agreed that, during the pendency of the case,



       1
           Because the parties have the same last name, we refer to them by their first names.
       2
          Because the parties are familiar with the facts of the case and its procedural history, we do
not recite them in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
Tobbie would be the sole managing conservator of the children, and Tamar would have standard

visitation and pay child support. Tamar also filed a counter-petition around that time.

               In October 2013, the trial court granted Tobbie’s attorney’s motion to withdraw as

counsel for Tobbie, and Tobbie began representing herself. Shortly thereafter, Tamar filed an

amended counter-petition seeking to be named the sole managing conservator of the children. Tamar

set the contested divorce for trial on November 6, 2013, and asked the trial court to send notice of

the setting to Tobbie at a Georgia address that was provided by Tobbie’s former attorney in the

motion to withdraw. The trial court sent the notice by certified mail to the Georgia address, but it

was returned to the court unsigned. Tobbie and the children moved to Atlanta during the pendency

of the case, but one of the children returned to Texas in September 2013 to live with Tamar. Later,

Tobbie and the other child returned to Texas and were staying with Tobbie’s mother on the day of

the trial.

               Tobbie did not appear for the trial. The trial court confirmed on the record that notice

had been sent to Tobbie at the Georgia address but was returned to the court “as unclaimed and

unable to forward.” Tamar also testified that he had not spoken to Tobbie about the trial setting but

he had spoken to her mother about it and that he discovered that Tobbie was staying at her mother’s

house “[p]robably about two weeks ago.” According to Tamar, Tobbie’s mother planned to “kick”

Tobbie out but that she was waiting until after the trial “to see if [he] can have custody of [his]

children.” The trial court thereafter signed the final decree of divorce on November 8, 2013. The

final decree recites that Tobbie “has made a general appearance and was duly notified of trial but

failed to appear and defaulted.” The trial court also appointed Tamar sole managing conservator of



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the children and ordered Tobbie to pay child support. After the final hearing, Tamar went to

Tobbie’s mother’s house with a copy of the order and took possession of his other child.

                Tobbie, who was still representing herself, timely filed motions to set aside the default

judgment and for new trial on November 27, 2013. See Tex. R. Civ. P. 329b(a) (requiring motion

for new trial to be filed within 30 days after judgment signed). She asserted, among other grounds,

that she did not receive notice and was not aware of the trial setting as required by due process. See

U.S. Const. amend. XIV, § 1. She also filed an affidavit of indigence and an affidavit supporting

her motions in which she averred:


        I never received notice from the court and was not properly notified of the final
        divorce hearing due to not having legal representation at the time, I was not aware of
        the legal steps required in completing my divorce or that a hearing would be set
        without me having legal representation, nor was I aware that I needed to contact the
        courts for phone and address updates until I had an attorney. I was in the process of
        getting legal representation and had contacted LoneStar legal aid for assistance. I
        have two children that are involved in this divorce as well as over l2 years of
        community property that I ask to be considered on my behalf also.


Tamar did not file a response to the motions.

                Tobbie obtained new counsel in December 2013, and a hearing on Tobbie’s motions

to set aside the default judgment and for new trial was held on January 10, 2014. At the hearing,

both parties testified. Tobbie testified that she did not receive notice of the trial setting and that she

was not intentionally avoiding receiving notice. Tamar testified that he was aware that Tobbie was

staying at her mother’s house on the day of trial and that he did not send notice of the trial setting

to that address. At the conclusion of the hearing, the trial court orally granted the motion for new

trial on the record but continued the terms of the final decree as temporary orders pending further

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hearing. The trial court, however, did not sign a written order granting the motion for new trial prior

to the motion being overruled by operation of law on January 22, 2014, the seventy-fifth day after

the final decree was signed. See Tex. R. Civ. P. 329b(c) (requiring written order on motion for new

trial within seventy-five days after judgment signed or the motion “shall be considered overruled by

operation of law”).

               On January 29, 2014, Tobbie filed a proposed order reflecting the trial court’s ruling

at the January 10, 2014, hearing, but the trial court refused to sign it, noting on the order that the

“time to enter order on mtn/new trial has expired.”3 Tobbie thereafter filed motions to reconsider

the motion to set aside the default judgment and for new trial and a second motion for new trial,

which the trial court also declined to grant. The trial court subsequently made findings of fact and

conclusions of law. Among its conclusions, the trial court concluded that its “plenary power expired

on January 22, 2014, the 75th day after entry of the final decree of divorce” and that it “was without

jurisdiction to enter the Order Granting New Trial in accordance with Texas Rule of Civil Procedure

Rule 329b(c).” See Tex. R. Civ. P. 329b(c). This appeal followed.


                                            ANALYSIS

               Tobbie raises two issues on appeal. She urges that she is entitled to a new trial

because she proved that she did not receive notice of the trial setting and that the trial court abused

its discretion when it refused to grant her motion for new trial. See Strackbein v. Prewitt,


       3
          According to Tobbie, her counsel sent a draft order for approval as to form to Tamar’s
counsel on January 14, 2014, and thereafter attempted to contact opposing counsel by telephone and
facsimile. Opposing counsel returned the draft order to Tobbie’s counsel on January 27, 2014, and
Tobbie’s counsel filed the draft order with the court two days later.

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671 S.W.2d 37, 38 (Tex. 1984) (reviewing trial court’s denial of a motion for new trial under abuse

of discretion standard); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.

1985) (describing abuse of discretion standard). Tamar has not filed a responsive brief.

               Whether a trial court must set aside a default judgment generally is governed by the

test articulated in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).4

However, “[o]nce a defendant has made an appearance in a cause, he is entitled to notice of the trial

setting as a matter of due process under the Fourteenth Amendment to the federal constitution.” LBL

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

id. (reversing and remanding case to trial court based on conclusion that defendant had no actual or

constructive notice of trial setting); Lopez v. Lopez, 757 S.W.2d 721, 722–23 (Tex. 1988) (per

curiam) (in context of post-answer default judgment, remanding for new trial and concluding that

defendant was not required to establish Craddock element of meritorious defense when record

established that defendant did not have actual or constructive notice of trial setting); Kuykendall

v. Beverly, 436 S.W.3d 809, 814–15 (Tex. App.—Texarkana 2014, no pet.) (noting in context of

post-appearance default that, “when the defendant did not receive actual or constructive notice of

trial, he has met the first prong of Craddock, and due process prevents the application of the second

and third prongs of the Craddock test”); Myers v. County of Williamson, No. 03-10-00410-CV,

2011 Tex. App. LEXIS 9948, at *15 (Tex. App.—Austin Dec. 16, 2011, no pet.) (mem. op.)


       4
           To be entitled to a new trial under the Craddock test, a defendant generally must
demonstrate that (1) his failure to appear was not intentional or the result of conscious indifference;
(2) there is a meritorious defense; and (3) the granting of a new trial will not operate to cause
delay or injury to the opposing party. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126
(Tex. 1939).

                                                  5
(concluding that “defendant who has been denied due process through lack of notice of a trial setting

is entitled to a new trial without further showing”). Accordingly, a trial court abuses its discretion

when it denies a motion for new trial to a party who has made an appearance in the proceeding and

establishes that he failed to appear for trial because he did not receive notice of the trial setting. See

LBL Oil Co., 777 S.W.2d at 390–91; Lopez, 757 S.W.2d at 722–23; Myers, 2011 Tex. App. LEXIS

9948, at *15; see also Downer, 701 S.W.2d at 241–42 (noting that trial court abuses its discretion

when it fails to follow guiding rules and principles).

                Here, Tobbie appeared in the trial court proceeding. She filed the original petition

for divorce and was a counter-defendant. Thus, she was entitled to notice of the trial setting. See

LBL Oil Co., 777 S.W.2d at 390–91; Lopez, 757 S.W.2d at 722–23. Tobbie asserted in her motion

for new trial that she did not receive notice of the trial setting, and her motion was supported by an

affidavit as well as undisputed evidence at the hearing on the motion. Although the trial court sent

notice of the trial setting to Tobbie at the Georgia address that was provided by Tobbie’s former

attorney, the notice was returned unsigned, and Tobbie testified that she did not have notice of the

trial setting and was unaware that she needed to update her address prior to obtaining new counsel.

See Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex. 2005) (in context of post-answer default

judgment, declining to preclude new trial based on unintentional failure “to keep the court and the

parties apprised of their correct and current address”).

                Tamar also did not dispute that Tobbie did not receive notice of the trial setting. He

testified consistently at the hearing on the motion and at trial that he did not speak to Tobbie about

the trial setting and that he was aware that Tobbie had returned from Georgia and was staying at her



                                                    6
mother’s house prior to the trial setting. Thus, we conclude that Tobbie established that she did not

receive notice of the trial setting and, therefore, that she is entitled to a new trial. See id. at 744, 746

(in context of post-answer default judgment, dispensing with second element of Craddock when first

element “established by proof that the defaulted party was not given notice of a trial setting,” noting

that courts of appeals also dispense with third element in this context, and reversing trial court’s

refusal to set aside post-answer default judgment);5 Myers, 2011 Tex. App. LEXIS 9948, at *15;

cf. Kelly v. Brenham Floral Co., No. 01-12-01000-CV, 2014 Tex. App. LEXIS 9464, at *9–10 (Tex.

App.—Houston [1st Dist.] Aug. 26, 2014, no pet.) (mem. op.) (concluding that trial court did not

abuse discretion in denying motion for new trial when evidence was disputed whether

defendant received notice of trial setting); Dougherty-Williams v. Dougherty, No. 01-13-01087-CV,

2014 Tex. App. LEXIS 6659, at *14–17 (Tex. App.—Houston [1st Dist.] June 19, 2014, no pet.)

(mem. op.) (same).

                Although the trial court apparently reached this same conclusion at the hearing on the

motion for new trial—advising the parties on the record that it was granting Tobbie’s motion—the

trial court refused to sign the proposed order that Tobbie filed after the hearing. According to the

trial court’s conclusions of law, its “plenary power expired on January 22, 2014, the 75th day after

entry of the final decree of divorce” and it “was without jurisdiction to enter the Order Granting New

Trial in accordance with Texas Rule of Civil Procedure Rule 329b(c).” See Tex. R. Civ. P.

329b(c).    These conclusions, however, were erroneous. See BMC Software Belgium, N.V.


        5
           We also note that, even if Tobbie was required to satisfy the third element of the Craddock
test, she did so. See id. Tobbie presented undisputed evidence that the granting of a new trial would
not operate to cause delay or injury to Tamar.

                                                     7
v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002) (reviewing trial court’s conclusions of law de novo

to determine correctness).

               When a motion for new trial is timely filed, the trial court’s plenary power does not

expire “until thirty days after all such timely-filed motions are overruled, either by a written and

signed order or by operation of law, whichever occurs first.” Tex. R. Civ. P. 329b(e); see Hawkins

v. Howard, 97 S.W.3d 676, 678 (Tex. App.—Dallas 2003, no pet.). Thus, even though Tobbie’s

motion for new trial was overruled by operation of law because the trial court did not reduce its

ruling to a written order within seventy-five days after signing the final decree, see Tex. R. Civ. P.

329b(c), the trial court had jurisdiction to grant a new trial when it refused to do so. See id. R.

329b(e); Hawkins, 97 S.W.3d at 678 (concluding that trial court had obligation to hear evidence at

hearing that was conducted within 30 days after motion for new trial was overruled by operation of

law as if the hearing had been conducted within seventy-five day period because “trial court had

plenary power to grant the motion at the time it conducted the hearing”); see also Anderson

v. Anderson, 282 S.W.3d 150, 153–54, 156 (Tex. App.—El Paso 2009, no pet.) (concluding that

motion for new trial properly before court even though hearing on motion occurred in thirty-day

period after motion was overruled by operation of law and that trial court abused its discretion in

failing to set aside default judgment).

               Because Tobbie established that she was entitled to a new trial based on her lack of

notice of the trial setting, we sustain Tobbie’s issues and conclude that the trial court abused its

discretion when it refused to grant Tobbie’s motion for new trial.




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                                        CONCLUSION

               For these reasons, we reverse and remand this case to the trial court for further

proceedings consistent with this opinion.



                                            __________________________________________

                                            Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Reversed and Remanded

Filed: May 13, 2015




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