                             NUMBER 13-12-00540-CV

                                COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ARMANDO QUINTERO BRAVO,                                                       Appellant,

                                              v.

ELMA OLIVAREZ,                                                                 Appellee.


                  On appeal from the County Court at Law No. 7
                           of Hidalgo County, Texas.


                             MEMORANDUM OPINION

              Before Justices Rodriguez, Benavides, and Longoria
                  Memorandum Opinion by Justice Rodriguez
          In this divorce case, appellant Armando Quintero Bravo challenges the trial court's

post-answer default judgment in favor of appellee Elma Olivarez. By one issue, Bravo

argues that the trial court abused its discretion in denying his motion for new trial. We

affirm.
                                     I. Background

       Olivarez and Bravo have been living together as husband and wife since January

1990. They have two children together. Citing insupportability as grounds, Olivarez

filed for divorce from Bravo on January 27, 2010. In his answer to Olivarez's petition on

February 5, 2010, Bravo alleged that "there is no existing marriage between the parties."

Agreed temporary orders addressing custody, child support, visitation, and other

standard matters were entered on February 10, 2010.

       On July 20, 2011, the trial court held a docket control conference (DCC).

Olivarez's counsel and Bravo's counsel's legal assistant attended the DCC. At the DCC,

the trial court set the case for a bench trial on September 19, 2011. The case was then

called for trial on that date; Olivarez appeared with her attorney, but neither Bravo nor his

counsel appeared. The trial court granted Olivarez's divorce petition by default.

       On October 11, 2011, Bravo filed a motion to set aside the default judgment and a

motion for new trial, arguing that: (1) his failure to appear was the result of accident and

mistake, as set out in the affidavits attached to the motion; (2) his petition states a

meritorious defense by alleging that there was no existing marriage between the parties;

and (3) a new trial would not cause delay or prejudice to Olivarez in light of the fact that

"this matter had been filed by [Olivarez] since January 2010 and [the] matter had not

[been] scheduled for any final hearing until July 2011." He attached affidavits from his

counsel and his counsel's legal assistant to the motion. Counsel's legal assistant's

affidavit follows in its entirety:

              My name is Maria Luisa Sanchez. I am above the age of eighteen
       years, and I am fully competent to make this affidavit. I am a part time legal

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       assistant to attorney San Juanita Sanchez. The facts stated in this affidavit
       are within my personal knowledge and are true and correct.

              Attorney Sanchez was out on medical leave due to surgery from July
       15, 2011 until August 3, 2011. A docket control conference was held on
       July 20, 2011 regarding this matter. I was present for that conference call.
       Upon the setting of the hearing, I called Ms. Del Bosque's [Olivarez's
       counsel's] office upon instruction by Ms. Sanchez to request an extension to
       discovery and requested the matter be set for a later date to allow time for
       responses. At which time, after several calls, I mistakenly believed that the
       matter had been set for October 4, 2011. Furthermore, I mistakenly placed
       another case on the calendar for the hearing date of [] September 19, 2011.
       As a result, neither Ms. Sanchez or Respondent [Bravo] were present at the
       hearing. Additionally, neither Attorney Sanchez nor I was in the office the
       morning of September 19, 2011 and did not hear message from court that
       matter was set for that morning. Failure to appear was a result of a
       mistake or accident, and not the result of conscious indifference.

Counsel's affidavit follows in its entirety:

              My name is San Juanita Sanchez. I am above the age of eighteen
       years, and I am fully competent to make this affidavit. I am the attorney for
       Respondent, Armando Quintero Brave [sic]. I have read the Motion to Set
       Aside Default Judgment and Motion for New trial. The facts stated in this
       affidavit are within by personal knowledge and are true and correct.

              I was informed by my assistant, Maria Luisa Sanchez[,] that this
       matter had been set for [a] October 4, 2011 final hearing. Additionally, my
       assistant placed another of my cases for September 19, 2011. I nor staff
       was present at the office when the court placed a call to my office phone
       informing me of the [September 19] hearing. I did not become aware of the
       hearing until after a default judgment was rendered on the afternoon of
       September 19, 2011. Failure to appear was a result of a mistake or
       accident, and not the result of conscious indifference.

       Several hearings were held on Bravo's motion for new trial, but no evidence or

argument in addition to those presented in the motion and affidavits were presented at

these hearings. The trial court verbally denied Bravo's motion for new trial at two of the

hearings. On June 4, 2012, the trial court entered its final decree of divorce. The trial

court entered its written order denying Bravo's motion for new trial on August 21, 2012.

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This appeal followed.

                       II. Applicable Law and Standard of Review

               [A] default judgment should be set aside and a new trial granted
       when the defaulting party establishes that (1) the failure to appear was not
       intentional or the result of conscious indifference, but was the result of an
       accident or mistake, (2) the motion for new trial sets up a meritorious
       defense, and (3) granting the motion will occasion no delay or otherwise
       injure the plaintiff.

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

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)). The supreme

court has extended Craddock to post-answer default judgments. Id. at 925–26 (citing Ivy

v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966)).

       A trial court's refusal to grant a motion for new trial is reviewed for abuse of

discretion. Id. at 926 (citing Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987)). "When

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

a trial court abuses its discretion if it fails to grant a new trial." Id. (citing Old Republic Ins.

Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994)).

                                        III. Discussion

       By one issue, Bravo argues the trial court abused its discretion in denying his

motion for new trial because he established the three required Craddock factors.

       Even assuming without deciding that Bravo established the first and third

Craddock factors—that his failure to appear at the September 19, 2011 bench trial was

the result of accident or mistake and that the granting of a new trial would not cause delay

or prejudice Olivarez—we cannot conclude that Bravo established the second Craddock

factor, which is dispositive of the appeal. See TEX. R. APP. 47.1; see also Craddock, 133

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S.W.2d at 126. "The second prong of the Craddock test requires [the defaulting party] to

'set up' a meritorious defense in its motion for new trial. Setting up a meritorious defense

does not require proof 'in the accepted sense.'" Dolgencorp of Tex., Inc., 288 S.W.3d at

927–28 (citations omitted). But a motion fails to set up a meritorious defense if it does

not allege facts constituting such a defense and is not supported "by affidavits or other

evidence providing prima facie proof that the defendant has such a defense." Id. at 928

(citing Guar. Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 2006); Ivy, 407 S.W.2d at

214). Here, aside from his bare assertion in his petition and in his motion for new trial

that no marriage existed between him and Olivarez, Bravo alleged no facts related to this

defense and provided no affidavits or other evidence that would have constituted prima

facie proof of his defense. As such, Bravo failed to set up a meritorious defense and thus

failed to establish the second Craddock factor.

       Because Bravo failed to establish all three of the Craddock factors, he did not show

himself entitled to a new trial. The trial court therefore did not abuse its discretion in

denying Bravo's motion to set aside the default judgment and motion for new trial.

Bravo's appellate issue is overruled.

                                     IV. Conclusion

       We affirm the judgment of the trial court.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the 5th
day of September, 2013.


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