                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                   §
  EDITH ROMAN,                                                      No. 08-18-00041-CV
                                                   §
                          Appellant,                                    Appeal from
                                                   §
  v.                                                             County Court at Law No. 5
                                                   §
  JOSE LUIS RIOS RAMIREZ, SR.,                                    of El Paso County, Texas
  VELIA RIOS RAMIREZ AND                           §
  JOSE LUIS RAMIREZ, JR.,                                          (TC # 2017DCV1893)
                                                   §
                          Appellees.
                                                   §


                                           OPINION

       Edith Roman appeals a default judgment taken against her in a suit to declare a lien invalid

and unenforceable. Her first issue on appeal--a challenge to the proof of service to support the

default judgment--was decided adversely to her in a previous mandamus action. We conclude that

prior decision is now law-of-the-case. As to her other issues, we reject several of her challenges

to the sufficiency of the evidence, as well as her claim that the trial court erred in denying a motion

for new trial. We sustain her challenge to the appellate attorney’s fees awarded in the default

judgment and modify the judgment to conform that award to the evidence presented below. As

modified, we affirm the judgment.
                            FACTUAL AND PROCEDURAL HISTORY

                                             The Lawsuit Below

        On June 7, 2017, Jose Luis Ramirez, Sr, Velia Rios Ramirez, and Jose Luis Rios Ramirez,

Jr. (collectively, the Rios family) filed suit against Edith Roman complaining of liens that she

recorded against two properties.1 One property was Jose Luis Ramirez Sr. and Velia Ramirez’s

homestead. The other property was owned by Jose Luis Rios Ramirez, Jr., and had been leased to

Edith Roman and her husband, Alejandro Hernandez. Roman was evicted from the property on

March 20, 2012 for non-payment of rent. Seven days later, she filed liens against both the property

she had leased, and Jose Luis Ramirez Sr. an Velia Ramirez’s homestead.

        The Rios family’s lawsuit alleged various deficiencies in the lien filings, and they sought

a declaration that the liens are invalid and unenforceable. The lawsuit additionally asserted claims

for slander of title and violation of Chapter 12 of the Civil Practices and Remedies Code. In

addition to the damages sought for those claims, the lawsuit asked for attorney’s fees and

exemplary damages.

                                              Service of Process

        The Rios family hired a private investigator, Gregory Williams of CWI Investigations, to

locate and serve Roman. The investigator learned that Roman was living at an Anthony, New

Mexico address. The Rios family filed a motion for substituted service which sought permission

to leave the citation and suit papers with anyone over the age of sixteen at the New Mexico address.

The motion was supported by an affidavit of the investigator describing his efforts to locate

Roman. That motion for substituted service, however, was never acted on. Instead, the trial court




1
   The factual summary is based on the Rios family’s original petition, and the affidavits and unsworn declarations
filed below.

                                                        2
signed an order that authorized Gregory Williams or Victor Hernandez of CWI Investigations to

serve the process on Roman at the New Mexico address or wherever she could be found.

       Roman called CWI Investigations on July 17, 2017 and offered to accept service at a

Walgreens located in El Paso, Texas that same day. According to Williams, the petition, citation,

and the order authorizing service were all placed inside a manila envelope. Williams and his

partner met Roman and her husband, Alejandro Hernandez, at the Walgreens, and after confirming

her identity, he handed her the envelope. Williams documented the encounter with a photograph

of Roman’s passport which she provided to confirm her identity. He also photographed the vehicle

that she arrived in and took a photograph of Roman holding the manila envelope.

       The Rios family filed the return of service (endorsed on the backside of the citation) on

July 18, 2017. The citation and return are at issue in this case, so we describe them further. The

citation is directed to Edith Roman, with a typewritten El Paso address. That address is struck

through and two addresses are handwritten on the citation: the New Mexico address where she

lived, and the Walgreen’s Pharmacy where she agreed to meet Gregory Williams to be served.

       The backside of the citation contains the return. One section titled “Certificate of Delivery”

reads: I do hereby certify that I delivered to __________ on the 17 day of July, 2017 at 7:45

o’clock p.m. this copy of this instrument.” The section is signed by Gregory Williams, notarized,

and contains the handwritten address of the Walgreens where he met Roman. Roman’s name,

however, is handwritten into a blank intended to identify the sheriff, if a sheriff served the process.

In effect, Williams appears to have inserted Edith Roman’s name into the wrong blank. The blanks

are stacked on top of each other, separated by several other pre-printed blank lines.

       Based on the service date, Roman’s answer was due to be filed by August 7, 2017.




                                                  3
                                                Default Judgment

         On August 8, 2017, the Rios family filed a motion for default judgment. The trial court

signed a default judgment the next day. The judgment declared the liens on the two properties of

no force and effect. It also awarded the following sums against Roman: $10,000 as statutory

damages for filing the liens; $4,536.93 attorney’s fees through trial; $10,000 for any appeal to the

court of appeals; and $5,000 at Texas Supreme Court.

                                            Post-Judgment Motions

         Roman timely filed a motion for new trial. The motion asserted that Roman was not

properly served in strict compliance with Rules of Civil Procedure 103, 106(a) and (b), and 107,

thus denying jurisdiction to render the default judgment. In part, Roman complained about

Gregory Williams’s affidavit used to support the motion for substituted service and the grounds

asserted in that motion (which the trial court had never acted upon). The motion further contends

that Williams was not authorized to serve process under Rule 103.

         The motion for new trial asserted two other arguments important here. First, she claimed

that the citation was not actually served on Roman. She supported that claim through her and

Alejandro Hernandez’s declarations that contend there was no citation in the manila envelope.2

Second, she complained of defects in the citation. Roman pointed out that her name had been

written into a blank intended to identify a sheriff who might have served the petition, and not the

blank identifying the person served. Along the same lines, the motion further claimed the citation

was missing several other requirements set out in Rule 107.


2
  Both filed unsworn declarations as permitted by TEX.CIV.PRAC.&REM.CODE ANN. § 132.001. Alejandro Hernandez
claimed: “I was with Ms. Roman when she received a manila folder from a person claiming to be Gregory Williams.
I opened the folder and reviewed its contents. I can attest with all certainty that the folder did not contain a Citation
or Order Authorizing Service Other Than By Certified Process Server.” Roman made a similar claim: “Alejandro
Hernandez accompanied me when I received a manila folder from a person claiming to be Gregory Williams. Mr.
Hernandez opened the folder and reviewed its contents. Both Mr. Hernandez and I can attest with all certainty that
the folder did not contain a Citation or Order Authorizing Service Other Than By Certified Process Server.”

                                                           4
          The Rios family filed a response that aside from addressing each legal argument, included

affidavits from their attorney and the attorney’s secretary attesting that the manila envelope given

to Williams contained both the petition and citation, as well as the order authorizing service.

Williams affidavit then described how he personally handed the envelope to Roman, including the

photographs he took documenting the service of process. Williams’ partner similarly swore that

the envelope was handed to Roman at the Walgreen’s parking lot.

          On August 18, 2017, the trial court signed an order requiring the El Paso County Clerk to

remove specified lien filings by Roman unless she posted a bond suspending enforcement of the

order. Roman filed a motion to stay that order, based on her motion for new trial. The Rios family

also obtained a writ of execution on the judgment. Roman responded with a motion to dissolve

that writ. Roman then filed an amended motion for new trial that added two substantive arguments.

First, she contended the judgment was not final because it did not dispose of the slander and

exemplary damages claim that were alleged in the original petition. Second, she claimed that her

failure to answer was not intentional or the result of conscious indifference.

                 The trial court denied both the motion for new trial and motion to stay.

                                         Mandamus and First Appeal

          Roman then filed two proceedings in this Court. First, she filed a notice of appeal which

we docketed as case No. 08-17-00235-CV. Roman also filed a Petition for Mandamus that asserted

two issues. In re Roman, 554 S.W.3d 73, 75-76 (Tex.App.--El Paso 2018)(original proceeding).3

In her first issue, Roman argued that the default judgment was void because the court lacked

personal jurisdiction over her. The five subparts of that argument from the table of authorities in

the Petition for Mandamus are as follows:



3
    Alejandro Hernandez was also a relator in that proceeding.

                                                           5
       Affidavit in Support of Motion for Substituted Service is Invalid
       Ms. Roman Was Not Served With a Copy of The Citation
       Ms. Roman Was Not Served With a Copy of The Order Authorizing Service Other
       than By Certified Process Server
       The Return of Service is Defective
       No Adequate Remedy by Appeal
The body of the brief included argument that tracked each of these section headers. We overruled

that issue, however, finding that “[t]he mandamus record conclusively establishes that Roman was

personally served by Gregory Williams on July 17, 2017 with a copy of the petition, the citation,

and the order for service on July 17, 2017.” In re Roman, 554 S.W.3d at 79.

       In her second mandamus issue, Roman successfully convinced us that the default judgment

was not final. The default had not disposed of the slander of title and exemplary damage claims.

We therefore granted her partial relief, ordering that the trial court set aside a writ of execution

that the Rios family has filed. In re Roman, 554 S.W.3d at 79.

       Roman filed a motion for rehearing of our decision that expanded upon her jurisdictional

argument. Her first point for reconsideration stated:

       The mandamus record DOES NOT conclusively establish that Roman was
       personally served by Gregory Williams on July 17, 2017 with a copy of the petition,
       the citation, and the order for service on July 17, 2017.

Her argument focused on claimed defects in the return: “The return does not name Ms. Roman or

any person, upon whom delivery of the citation was made, the section where the name of the

person served should go, is blank.” She argued that instead, her name “appears where the Sheriff’s

name should be.” She principally relied on two cases: Shamrock Oil Co. v. Gulf Coast Natural

Gas, Inc., 68 S.W.3d 737, 739 (Tex.App.--Houston [14th Dist.] 2001, pet. denied) and Woodall v.

Lansford, 254 S.W.2d 540 (Tex.Civ.App.--Fort Worth 1953, no writ). We denied the motion for

rehearing.


                                                 6
       As to her regular appeal, we dismissed it for want of jurisdiction because we agreed that

the default judgment was not final. Roman v. Ramirez, 08-17-00235-CV, 2018 WL 739599, at *1

(Tex.App.--El Paso Feb. 7, 2018, no pet.). On remand, the trial court non-suited the slander of

title and exemplary damage claims, making the earlier default judgment final and appealable.

Roman filed a new notice of appeal, and now raises five issues: (1) the trial court lacked personal

jurisdiction to enter the default “because the return of service does not show proper service;” (2)

the evidence was insufficient to show liability under Chapter 12 of the Civil Practices and

Remedies Code, (3) the evidence was insufficient to support damages; (4) the evidence was

insufficient to support the award of attorney’s fees, and (5) the trial court abused its discretion in

denying the amended motion for new trial.

         JURISDICTIONAL DEFECTS WERE DECIDED IN THE MANDAMUS

       Roman’s first issue mirrors a subset of the very same complaints she made in the

mandamus already decided by this Court. Her first issue focuses on a claimed defect in the return

of service--her name was handwritten into the wrong blank on the return. She made the same

argument in the mandamus, and particularly the motion for rehearing. As there, she now claims

that Shamrock Oil Co. v. Gulf Coast Natural Gas, Inc. and Woodall v. Lansford support her claim.

The Rios family responds that we have already decided the issue against her, which is now law-

of-the-case. We begin there.

       Under the law-of-the-case doctrine, a court of appeals is ordinarily bound by its initial

decision if there is a subsequent appeal in the same case. Paradigm Oil, Inc. v. Retamco Operating,

Inc., 372 S.W.3d 177, 182 (Tex. 2012); Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.

2003). “By narrowing the issues in successive stages of the litigation, the law of the case doctrine

is intended to achieve uniformity of decision as well as judicial economy and efficiency. The



                                                  7
doctrine is based on public policy and is aimed at putting an end to litigation.” Briscoe, 102 S.W.3d

at 716. It discourages parties from relitigating an issue in the hope of finding a more favorably

disposed tribunal. See LeBlanc v. State, 826 S.W.2d 640, 644 (Tex.App.--Houston [14th Dist.]

1992, pet. ref’d)(“Without application of this doctrine, appellant would be able to gamble that

between two court of appeals’ decisions he would have a better chance of obtaining a favorable

ruling by one of them.”).

       One twist here is that we first decided the jurisdictional challenge in a mandamus.

Nonetheless, several other courts of appeals have concluded that a legal issue actually resolved in

a mandamus action becomes law-of-the-case in subsequent proceedings in the same case. See In

re United Services Automobile Assn., 521 S.W.3d 920, 928 (Tex.App.--Houston [1st Dist.]

2017)(orig. proceeding)(applying law-of-the-case to reverse a new trial order on the same grounds

as decided in an earlier mandamus in the same case); In re Guardianship of Cantu de Villarreal,

330 S.W.3d 11, 20-21 (Tex.App.--Corpus Christi 2010, no pet.)(holding law-of-the-case doctrine

prevented reconsideration of issue decided in earlier mandamus petition); B S P Mktg., Inc. v.

Standard Waste Sys., Ltd., No. 05-03-00518-CV, 2004 WL 119235, at *1-2 (Tex.App.--Dallas

Jan. 27, 2004, no pet.)(mem. op.)(because court reached the merits of an abuse of discretion

question in an earlier mandamus, that disposition controlled the same issue arising in subsequent

appeal).

       Roman does not challenge these cases. Rather she contends that our earlier decision was

clearly erroneous. And true enough, a court may decline to apply the law-of-the-case doctrine if

its original decision is clearly erroneous. Briscoe, 102 S.W.3d at 716-17. “Application of the

doctrine lies within the discretion of the court, depending on the particular circumstances

surrounding that case.” Id. “Clearly erroneous” for law-of-the-case purposes, means something



                                                 8
more than a mere disagreement with the prior decision. See Warren E & P, Inc. v. Gotham Ins.

Co., 368 S.W.3d 633, 640-41 (Tex.App.--El Paso 2012)(Antcliff, J., dissenting), rev’d on other

grounds, 455 S.W.3d 558 (Tex. 2014). That standard is not met here.

       Roman’s substantive argument turns on several claimed defects in the citation and return

of service. Because the record does not show “strict compliance” with the rules of service, she

claims the default must be set aside. E.g. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). And

we acknowledge the body of law that in a restricted appeal, the court does not indulge any

presumptions in favor of proper issuance, service, and return of citation. See e.g. Primate Constr.,

Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)(per curiam); Uvalde Country Club v. Martin Linen

Supply Co., 690 S.W.2d 884, 885 (Tex. 1985)(per curiam); Whiskeman v. Lama, 847 S.W.2d 327,

329 (Tex.App.--El Paso 1993, no writ). But this case arises from a regular appeal of a denied

motion for new trial. The Texas Supreme Court has drawn a distinction in such an appeal:

       A restricted appeal is filed directly in an appellate court. As in any other appeal,
       the appellate court does not take testimony or receive evidence. Instead, the review
       is limited to errors apparent on the face of the record. In such appeals, ‘[t]here are
       no presumptions in favor of valid issuance, service, and return of citation.’ Primate
       Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)(citations omitted).
       Circumstances require this last rule, because presumptions can neither be
       confirmed nor rebutted by evidence in an appellate court. . . . By contrast, when a
       default judgment is attacked by motion for new trial or bill of review in the trial
       court, the record is not so limited. In those proceedings, the parties may introduce
       affidavits, depositions, testimony, and exhibits to explain what happened. That
       being the case, these procedures focus on what has always been and always should
       be the critical question in any default judgment: ‘Why did the defendant not
       appear?’
Fidelity and Guar. Ins. Co. v. Drewery Const. Co., Inc., 186 S.W.3d 571, 573-74 (Tex. 2006)(most

citations omitted). The Texas Supreme Court made the same distinction in Sutherland v. Spencer,

376 S.W.3d 752, 754 (Tex. 2012) by writing “Southern Customs states that ‘[t]here are no

presumptions in favor of valid issuance, service, and return of citation,’ . . . That is true when



                                                 9
attacking a default judgment by restricted appeal, but our analysis is different when, as here, a

default judgment is attacked by a motion for new trial.”).4

         Following a motion for new trial, the record can provide one of two answers as to why the

defendant did not appear. The first, as Drewery explains, is “Because I didn’t get the suit papers[.]”

186 S.W.3d 571, 573-74. Included in that category are situations like Wilson v. Dunn where the

plaintiff attempts to serve a defendant through some unauthorized procedure. Id. at 574 n.1

(“Receiving suit papers or actual notice through a procedure not authorized for service is treated

the same as never receiving them. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).”). When

the claim of nonreceipt is proved, the court should set aside the default. Id. at 573-74.

         The second possible answer as Drewery explains is “I got the suit papers but then . . . [.]”

Id. In that circumstance, “the default judgment should be set aside only if the defendant proves

the three familiar Craddock elements.” Id., citing Craddock v. Sunshine Bus Lines, 133 S.W.2d

124, 126 (1939). Under Craddock, a movant must demonstrate that: (1) their failure to appear for

trial was not intentional or the result of conscious indifference; (2) they have a meritorious defense;

and (3) the granting of a new trial will not operate to cause delay or injury. Milestone Operating,

Inc. v. ExxonMobil Corporation, 388 S.W.3d 307, 309 (Tex. 2012); Craddock, 133 S.W.3d at 126.

         While Roman attempted to place herself into the “I didn’t get the suit papers” class of cases,

that was a contested issue. Roman’s motion for new trial included two declarations conceding that

a person who identified himself as Gregory Williams handed her a manila envelope. She claimed

the citation and the order authorizing service were not in the envelope. The Rios family, however,




4
  The two cases that Roman principally relies on are inopposite. The court in Shamrock Oil Co. v. Gulf Coast Nat.
Gas, Inc., 68 S.W.3d 737, 738-39 (Tex.App.--Houston [14th Dist.] 2001, pet. denied) apparently did decide the case
based on a technical flaw in the return of service following a motion for new trial. But the decision predates Drewery
and Sutherland. The court in Woodall v. Lansford, 254 S.W.2d 540, 540 (Tex.Civ.App.--Fort Worth 1953, no writ)
decided the case on a writ of error which is the predecessor to our current restricted appeal.

                                                         10
did not concede that issue. Rather, they responded with one affidavit from the paralegal who

assembled and placed the documents into the envelope. They also responded with an affidavit

from the attorney who personally oversaw that process, and an affidavit from the process server

who accepted the manila envelope and personally served it on Roman. Each testified that the

envelope contained the petition, citation, and order authorizing service. The process server

buttressed his claim with a photograph showing Roman with the manila envelope in her hand.

         On that record, the technical errors that Roman complains of lose their luster. The decision

point turns on a battle of credibility that the trial court resolved against Roman. She makes no

credible claim that the order authorizing Williams to serve process violated any rule of procedure.5

And once the record shows that Roman was actually served with the citation and petition by a

person authorized by court order to serve process, she had a duty to file a timely answer. On that

record, and turning to the critical question of why Roman did not answer, the trial court and now

this Court are left without any good answer. Accordingly, our prior resolution of the jurisdictional

challenge was not clearly erroneous. We thus overrule Roman’s first issue that challenges the trial

court’s jurisdiction to enter the default judgment.

                  LIABILITY ALLEGATIONS WERE PROVED BY DEFAULT

         Roman’s second issue complains that the evidence is insufficient to support the liability

allegations against her. For a no-answer default judgment, however, the non-answering party is

deemed to have admitted all the facts properly pleaded in the petition. See Paradigm Oil, 372

S.W.3d at 183; Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Rouhana v. Ramirez, 556

S.W.3d 472, 477 (Tex.App.--El Paso 2018, no pet.). The defendant’s default thus establishes


5
  The most that she says in her rely brief is that the order authorizing service was not served along with the petition.
She relies on her unsworn declarations, and the fact the citation does not reference the order. She cites no authority
requiring that the order be part of the service package, and of course, whether the order was served was also a contested
issue, upon which the Rios family presented contravening affidavits.

                                                           11
liability and leaves open only the question of unliquidated damages. Holt Atherton Indus., Inc. v.

Heine, 835 S.W.2d 80, 83 (Tex. 1992); TEX.R.CIV.P. 243. Roman’s second issue is overruled.

              LACK OF PROOF OF ACTUAL DAMAGES IS IRRELEVANT

       In her third issue, Roman complains that the Rios family failed to present any evidence of

their actual damages. The petition asserted a claim under TEX.CIV.PRAC.&REM.CODE ANN. §

12.002 which provides that “[a] person may not make, present, or use a document or other record

with: (1) knowledge that the document or other record is a . . . fraudulent lien or claim against real

or personal property or an interest in real or personal property[.]” Id. at § 12.002(a)(1). A person

who violates this provision is liable to each injured person for “the greater of” $10,000 or “the

actual damages caused by the violation[.]” Id at § 12.002(b)(1)(A)(B). The judgment here

awarded $10,000 collectively to all three plaintiffs. There is no record of the default hearing, and

no proof of actual damages in the motion for default. Roman claims this lack of proof of actual

damages is fatal to the default. We disagree.

       First, Chapter 12 exemplifies several Texas statutory schemes that allow statutory damages

without evidence of actual damages. See Vanderbilt Mortg. and Fin., Inc. v. Flores, 692 F.3d 358,

372 n. 12 (5th Cir. 2012)(collecting statutes). Moreover, Section 12.002 penalizes the “intent to

cause” injury and not actual injury itself. TEX.CIV.PRAC.&REM.CODE ANN. § 12.002(a)(3);

Flores, 692 F.3d at 372. The default proved the intent to injure which then made the $10,000

statutory penalty automatic unless a higher sum was proved up.

       Additionally, Roman can show no harm. Had the Rios family presented evidence of actual

damages that amounted to less than $10,000, then under terms of the statute, the trial court would

have been compelled to award $10,000. Had the Rios family presented evidence of actual damages

of more than $10,000, the trial court would have awarded that sum obviously to the detriment of



                                                 12
Roman. In other words, she is not prejudiced by the lack of proof of actual damages. We only

reverse cases where an appellant can show reversible error. TEX.R.APP.P. 44.1. Issue Three is

overruled.

                APPELLATE ATTORNEY’S FEES MUST BE MODIFIED

       The judgment awards the Rios family $10,000 in appellate attorney’s fees for an appeal to

this Court, and $5,000 should a petition for review be filed. The affidavit that supports those

awards, however, only claims that $1,500 is a reasonable fee for each appellate stage. Roman

complains the evidence does not support the award. The Rios family agrees and consents to

modifying the judgment to the amounts proven in the affidavit. We accordingly modify the

judgment to award $1,500 for the appeal to this Court, and an additional $1,500 for successful

defense of any petition for review to the Texas Supreme Court. TEX.R.APP.P. 43.2(b); Oakwood

Mobile Homes, Inc. v. Cabler, 73 S.W.3d 363, 376 (Tex.App.--El Paso 2002, pet.

denied)(reforming judgment on consent of plaintiff to delete award).

        NO ABUSE OF DISCRETION IN DENYING MOTION FOR NEW TRIAL

       In her last issue, Roman complains that the trial court abused its discretion in denying her

amended motion for new trial.

       We review a trial court’s refusal to grant a motion for new trial for an abuse of discretion.

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009)(per curiam). The test for

abuse of discretion is whether the trial court acted without reference to any guiding rules or

principles or whether the trial court’s actions were arbitrary or unreasonable under the

circumstances of the case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). Relevant here, a trial court must set aside a default judgment when the movant satisfies the

requirements articulated in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (1939). See



                                                13
Director, State Employees Workers’ Compensation Division v. Evans, 889 S.W.2d 266, 268

(Tex.1994); Rivas v. Rivas, 320 S.W.3d 391, 393 (Tex.App.--El Paso 2010, no pet.). As we note

earlier, Craddock requires a showing that: (1) the failure to appear for trial was not intentional or

the result of conscious indifference; (2) the defendant has a meritorious defense; and (3) the

granting of a new trial will not operate to cause delay or injury. Craddock, 133 S.W.3d at 126.

       Because it is dispositive, we address only whether Roman met the first prong of the

Craddock test, which required her to establish that the failure to appear for trial was not intentional

or the result of conscious indifference. “A defendant satisfies its burden as to the first Craddock

element when its factual assertions, if true, negate intentional or consciously indifferent conduct

by the defendant and the factual assertions are not controverted by the plaintiff.” Sutherland, 376

S.W.3d at 755. Conscious indifference has been defined as failing to take some action which

would seem obvious to a person of reasonable sensibilities under the same circumstances. Evans,

889 S.W.2d at 269; Rivas, 320 S.W.3d at 393-94. The burden of proof is on the movant to show

that the failure appear for trial was not the result of conscious indifference. Munoz v. Rivera, 225

S.W.3d 23, 28 (Tex.App.--El Paso 2005, no pet.); Rivas, 320 S.W.3d at 393. We look to the

knowledge and acts of the movant to determine whether they satisfy the burden as to the first

Craddock element. Milestone Operating, 388 S.W.3d. at 309; Evans, 889 S.W.2d at 269; Rivas,

320 S.W.3d at 393-94.

       The record here is limited to the declarations and affidavits submitted in the motion for

new trial and the Rios family’s response. Roman meets her burden if the factual assertions in her

proofs are not controverted, and those proofs sets forth facts that, if true, negate intentional or

consciously indifferent conduct. See Evans, 889 S.W.2d at 269; Strackbein v. Prewitt, 671 S.W.2d

37, 38-39 (Tex. 1984); Rivas, 320 S.W.3d at 394. But when the proofs are contested, “it is the



                                                  14
duty of the court, as the fact finder at a hearing on motion for new trial, to ascertain the true facts

surrounding the default circumstances.” Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265

(Tex.App.--Texarkana 1992, writ dism’d). The court, as the fact-finder, is “the sole judge of the

credibility of the witnesses and the weight to be given to their testimony.” Stein v. Meachum, 748

S.W.2d 516, 518 (Tex.App.--Dallas 1988, no writ).

       Roman specifically claims because the citation was not served with the petition, and

accordingly, she did not know that an answer was required. The claim that she did not receive the

citation, however, was a controverted fact. The Rios family submitted sworn affidavits from the

paralegal and attorney who placed the citation into an envelope, as well as the process server who

was present when that task was accomplished. The process server further swore that he delivered

the envelope to Roman. We defer to the trial court’s implied finding that Roman did in fact receive

the citation, which on its face informed her of the duty to file an answer, and the means to calculate

the date upon which the answer must be filed. Accordingly, the record raises an inference of

conscious indifference to the answer date, and the trial court did not abuse its discretion in denying

the motion for new trial. See Eyre v. Eastar Investments, Inc., No. 12-18-00001-CV, 2018 WL

4766554, at *5 (Tex.App.--Tyler Oct. 3, 2018, no pet. h.)(in post answer default, claim that party

did not know of trial setting was a controverted fact and trial court did not abuse discretion in

denying motion). Roman’s fifth issue is overruled.

                                          CONCLUSION

       Roman’s first, second, third, and fifth issues are overruled. Her fourth issue is sustained to

the extent that we modify the judgment to award Jose Luis Ramirez, Sr, Velia Rios Ramirez, and

Jose Luis Rios Ramirez, Jr. One Thousand Five Hundred dollars ($1,500.00) for successfully

defending the appeal to this Court, and an additional One Thousand Five Hundred dollars



                                                  15
($1,500.00) if a petition for review is filed and successfully defended before the Texas Supreme

Court. Otherwise, the judgment below is otherwise affirmed.


February 8, 2019
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




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