      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00381-CV



 Santos Cervantes, Esther Cervantes, David Cervantes and Martha Cervantes, Appellants

                                                   v.

                                     Rosie Cervantes, Appellee


     FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
            NO. 26,484, HONORABLE H. R. TOWSLEE, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Appellee, Rosie Cervantes, obtained a default judgment ordering appellants Santos,

Esther, David, and Martha Cervantes to specifically perform their promise to convey property and

to pay attorney’s fees and costs in her suit for fraud, fraud in the inducement, breach of contract,

real estate fraud under section 27.01 of the business and commerce code, and knowing and

intentional misrepresentation. Appellants filed a motion for new trial, which the trial court denied.

In this appeal, appellants argue that the trial court erred in denying their motion for new trial because:

(1) the return of service was defective, (2) appellants established all elements to obtain a new trial
under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), and (3) Rosie1 is not

entitled to recover from appellants as a matter of law. We will reverse the trial court’s judgment.


                      FACTUAL AND PROCEDURAL BACKGROUND

                This case arises out of a dispute between members of the Cervantes family over

three acres of land located in Bastrop County. The parties dispute the circumstances under

which Rosie and her late husband, Sam, moved onto the property. Appellants allege that Santos and

Esther invited their son, Sam, and Rosie to move to the property to help them through financial

difficulties caused by Sam’s terminal illness and the “criminal troubles” of some of Rosie and Sam’s

grandchildren. Appellants assert that they made no promise to give the property to Rosie and Sam.

Rosie alleges that Santos promised to give her and Sam the deed to the property if they would

move there from Houston, which they did after purchasing a mobile home, setting up water and

electric service, and installing a septic system and water well. Rosie and Sam hired an attorney in

October 2006 after appellants continued to refuse their requests for a deed to the property. On

November 2, 2006, Rosie and Sam filed a request to take Sam’s deposition before suit; however,

Sam died on November 15, one day before the court signed the agreed order authorizing his

deposition.

                On April 5, 2007, Santos filed a complaint for eviction against Rosie in a

precinct justice court of Bastrop County. Rosie filed a plea to the jurisdiction asserting that Santos’s


       1
         Because the parties share a common surname, we will refer to them by their first names to
avoid confusion.



                                                   2
claim was necessarily dependent upon the determination of title to real property, an issue within the

district court’s exclusive jurisdiction. The justice court dismissed the case for lack of jurisdiction.

On April 24, Rosie sued appellants in the Bastrop County District Court for fraud, fraud in the

inducement, breach of contract, real estate fraud under section 27.01 of the business and commerce

code, and knowing and intentional misrepresentation. On June 4, after a hearing, Rosie obtained a

default judgment ordering appellants to specifically perform their promise to convey the property

and to pay Rosie’s attorney’s fees and costs. The default judgment was filed with the clerk on the

morning of June 11. Later that day, appellants filed a motion for new trial asserting that: (1) the

return of service was defective; (2) the citation was defective; and (3) counsel’s failure to file a

timely answer was due to mistake or accident, appellants have a meritorious defense, and granting

a new trial would not result in delay or prejudice to Rosie.

               In the motion for new trial and at the hearing on the motion for new trial, appellants’

counsel explained that his failure to file a timely answer was due to “an honest administrative error”

within his office. According to appellants’ counsel, when he was retained by appellants in “late

April 2007” to initiate a cause of action to evict Rosie, he was unaware that Rosie had filed a

cause of action against appellants. Some time in April or May, one of the appellants delivered a

copy of Rosie’s original petition to appellants’ counsel’s office.2 Appellants’ counsel contends that

this appellant obtained the petition from the courthouse. At the hearing on appellants’ motion for

new trial, appellants’ counsel testified:


       2
          Appellants’ counsel testified that he did not remember which of the individual appellants
delivered the petition: “one of the defendants—I don’t recall which one—came into the office with
a petition in his hand.”

                                                  3
       He said that he had gone to the court because he wanted to—he couldn’t get in
       contact with my office or he couldn’t get in contact with me personally, and he
       wanted to see what had been done on the case. So he came down to the court and
       picked up a petition and brought the petition back to my office.


Appellants’ counsel then explained:


       At that time it was, I think, maybe two or three months after I had hired a paralegal
       who was not really familiar with how these things work. And she did not understand
       that when a petition is filed, even though we’re hired to initiate the proceedings, we
       were hired for the purpose of being the plaintiff. So that’s where the confusion and
       the mistake came in; we were hired for the purpose of evicting the plaintiff . . . .

       So that caused some confusion in the mind of the paralegal because when she
       received the petition, she did not really understand even though we were retained for
       the purpose of evicting the petitioner, we still have to respond to that petition.

       So that information was not put into our automated docketing system, which is
       Amicus Attorney 7, which in turn would prompt me to meet the deadline for
       responding to it.


In appellants’ motion for new trial, appellants’ counsel stated that he discovered Rosie’s

original petition “during a monthly inspection of the physical files” and “contacted the court.” On

July 3, the trial court denied appellants’ motion for new trial. Appellants perfected this appeal.

                 On appeal, appellants argue that the trial court erred in denying their motion for

new trial because: (1) the return of service was defective; (2) appellants met the Craddock factors

for setting aside a default judgment; and (3) Rosie is not entitled to recover from appellants as a

matter of law.




                                                 4
                                     STANDARD OF REVIEW

                Trial courts have broad discretion in ruling on motions for new trial. Limestone

Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex. App.—Austin

2004, no pet.). We review a trial court’s denial of a motion for new trial for abuse of discretion. Id.

at 542. The test for abuse of discretion is whether the trial court acted arbitrarily or without reference

to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). Although we are

generally deferential to the trial court’s determination of facts, see, e.g., Flores v. Fourth Court of

Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989), we do not defer to a trial court’s application of the law,

McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). A failure by a trial court to analyze or

apply the law correctly is an abuse of discretion. Id.

                A trial court abuses its discretion if it refuses to set aside a default judgment and grant

a new trial where: (1) the failure of the defendant to answer before judgment was not intentional or

the result of conscious indifference, but due to a mistake or an accident; (2) the motion for a

new trial sets up a meritorious defense; and (3) granting a new trial will occasion no undue delay or

otherwise injure the party taking the default judgment. Craddock, 133 S.W.2d at 126.


                                            DISCUSSION

Return of Service

                Appellants first contend that the default judgment cannot stand because the return of

service was defective for failing to state the name of the person served and the place of service. The




                                                    5
return of service consists of a form with blanks filled in by the serving officer.3 We set forth the

return of service in its entirety (italicized portions are handwritten in the return):


                                           Officer’s Return

        Came to hand the 26 day of Apr., 2007, at 4:40 o’clock P.M., and executed the 30
        day of Apr., 2007, at 9:15 o’clock A.M., by delivering to the within named
        ______________ in Bastrop County, Texas, in person, a true copy of this
        INSTRUMENT and tendering said witness the sum of $ ______.


        FEES: $ ______                                          R. Hernandez—Sheriff
                                                                Officer or Authorized Person
                                                                Bastrop County, Texas
                                                                By: Jack Sparkman


The attached citations include appellants’ names. Appellants do not contend that the citations

are defective.

                 Service of citation must be in strict compliance with the rules of civil procedure to

establish jurisdiction over a defendant and support a default judgment. Wilson v. Dunn, 800 S.W.2d

833, 836 (Tex. 1990). If strict compliance is not shown, the service of process is invalid and of

no effect. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). We

make no presumptions of valid issuance, service, or return of citation when examining a default

judgment. Id. However, “strict compliance with the rules does not require ‘obeisance to the

minutest detail.’” Williams v. Williams, 150 S.W.3d 436, 443-44 (Tex. App.—Austin 2004,

pet. denied) (quoting Ortiz v. Avante Villa at Corpus Christi, Inc., 926 S.W.2d 608, 613


        3
          The returns of service for Santos, Esther, David, and Martha are identical with the
exception of the times.

                                                   6
(Tex. App.—Corpus Christi 1996, writ denied)). “As long as the record as a whole, including

the petition, citation, and return, shows that the citation was served on the defendant in the suit,

service of process will not be invalidated.” Id. at 444.

               Texas Rule of Civil Procedure 107, which sets out the requirements for the return

of service, reads in pertinent part: “The return of the officer or authorized person executing

the citation shall be endorsed on or attached to the same; it shall state when the citation was

served and the manner of service and be signed by the officer officially or by the authorized person.”

Tex. R. Civ. P. 107. Rule 107 does not expressly require the return of service to include the name

of the person served. However, appellants contend that Rule 107’s requirement that the return state

the “manner of service” includes showing the method by which the citation was served (e.g., hand

delivery or mail) and that the citation was served on a person capable of accepting service. For this

contention, appellants cite Faggett v. Hargrove, 921 S.W.2d 274, 277 (Tex. App.—Houston

[1st Dist.] 1999, no pet.), overruled, in part, on other grounds by Barker CATV Constr., Inc.

v. Ampro, Inc., 989 S.W.2d 789, 793 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (en banc).

In Faggett, the court held that the return for a citation for which the court had ordered substitute

service did not state the “manner of service” when it did not show that the person on whom citation

was served was capable of accepting service under Texas Rule of Civil Procedure 106. 921 S.W.2d

at 278 (holding record failed to show “manner of service” when “nothing in the record indicated that

‘Fong, Tran’ was a person over sixteen years of age” or that proper substitute service accomplished).

Here, substitute service was not ordered. Appellants, the named defendants, are the people to whom

the Bastrop County sheriff’s deputy delivered the citation and petition. Unlike the factual situation



                                                  7
in Faggett, there was no need to affirmatively show that all aspects of substituted service were met.

Thus, the citation need not include this recitation. See Tavarez v. Smith, No. 03-02-00118-CV,

2002 Tex. App. LEXIS 8093, at *10-12 (Tex. App.—Austin Nov. 15, 2002, no pet.) (not designated

for publication).

               Further, Faggett is a restricted appeal, while this is an appeal from the denial of a

motion for new trial. The Texas Supreme Court has explained that because of “the differences

in these procedures . . . cases concerning one do not necessarily apply to the other.” Fidelity & Guar.

Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. 2006 ) (per curiam). A restricted appeal

is filed directly in the appellate court, and as in any other appeal, the appellate court does not take

testimony or receive evidence, and its review is limited to errors apparent on the face of the record.

Id. In restricted appeals, “there are no presumptions in favor of valid issuance, service, and return

of citation” because the appellate court can neither confirm nor rebut presumptions with evidence.

Id. (quoting Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam)). The

Court explained:


       Thus, for example, if the citation says an amended petition was attached (which
       named the defaulted party) and the return says the original petition was served
       (which did not), an appellate court cannot tell from the record which is true. Primate
       Constr., 884 S.W.2d at 152. Similarly, if the petition says the registered agent for
       service is “Henry Bunting, Jr.” but the citation and return reflect service on “Henry
       Bunting,” an appellate court cannot tell whether those persons are different or the
       same. See Uvalde, 690 S.W.2d at 885.




                                                  8
Id. at 573. In contrast, “when a default judgment is attacked by a motion for new trial . . . the record

is not so limited. In those proceedings, the parties may introduce affidavits, depositions, testimony,

and exhibits to explain what happened.” Id. at 573-74.

               Appellants provide no additional authority for their contention that the return of

service is required to include the defendant’s name, or that if it is, the phrase “within named” when

the defendant is named in the citation does not suffice. Because the citation, return, and petition

together show that service was made on appellants, see Williams, 150 S.W.3d at 444, and appellants

have provided no evidence showing otherwise, we will not invalidate service of process on

this ground.

               Appellants also contend that the return’s statement that citation was delivered “in

Bastrop County, Texas” failed to meet the requirement that the return state the place where service

was made. To support this contention, appellants cite Texas Rules of Civil Procedure 16 and 107,

as well as Jacksboro National Bank v. Signal Oil & Gas Company, 482 S.W.2d 339, 341-42

(Tex. App.—Tyler 1972, no writ). Rule 16 provides that an officer must include “on all process

and precepts coming to his hand . . . the time and place the process was served.” Tex. R. Civ. P. 16.

Appellants provide no authority for their contention that “Bastrop County is not a sufficient

designation of place under Rule 16.” Rule 107 includes no requirement that a return of service

include the place where service was made. And in Jacksboro, the return of service at issue included

no designation of place. 482 S.W.2d at 342 (“It would seem that to have affirmatively shown a valid

service, the sheriff’s return should recite at least that the writ was served within the State of Texas.




                                                   9
The return in question states neither the city, town, state, nor country in which it was served.”). We

will not invalidate service of process on this ground.

                In addition to their argument that the return of service was defective, it appears

appellants also contend that they were not served.4 If a defendant did not receive suit papers,

generally a default judgment must be set aside. Fidelity, 186 S.W.3d at 574 (citing Peralta

v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)). However, an exception to this rule exists

when the return of service includes the proper recitations and nonreceipt is uncorroborated. Id.;

Primate Constr., 884 S.W.2d at 152. The return of service is not a trivial, formulaic document and

is considered prima facie evidence of the facts it recites. Id. “The recitations in the return of service

carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party.”

Id. Thus, we turn to appellants’ proof. Appellants presented an affidavit from each defendant

stating, “I was not served a copy of the petition with a citation in this case.” In addition, at the

hearing on the motion for new trial, appellants’ counsel argued as follows:



        COUNSEL:                I think the most important comment that cannot be reiterated
                                enough is that they actually did not receive service; they
                                actually were not served. They were not handed anything by
                                a sheriff. That—and that’s—and their verification in their
                                affidavits—they were not served. One of them came down to
                                this court and picked up that document—I mean, picked up
                                the original petition. And then they came to my office with
                                that original petition and said, hey, did you do this? Where
                                did this come from? Or that’s what’s been represented to me.


        4
           On appeal appellants’ arguments with respect to service of process are focused on the
return of service. However, because appellants’ brief refers to appellants’ affidavits stating that they
were not served, we address this issue.

                                                   10
                               And that’s how—that’s what was explained to the paralegal.
                               They didn’t—they were not handed anything; they weren’t
                               served.


        THE COURT:             It would be, I believe, highly unusual for a deputy sheriff to
                               just invent or fabricate, if you will, a return of service.


        COUNSEL:               They may have given it to someone—I mean, there is no—the
                               trailer for the petitioner is on the same property as the trailer
                               for the respondent. There are no—to my understanding, there
                               are no numbers on the trailers. And the petitioner’s trailer is
                               actually closest to the street, and the respondent’s trailer is
                               actually furthest away from the street.


        THE COURT:             So your allegation is he may have served someone but it
                               wasn’t your client?


        COUNSEL:               Exactly. On that same piece of property and the same
                               address. So I’m not saying he didn’t serve anyone; all I’m
                               saying is he didn’t serve my clients. And it’s very—I mean,
                               that would be a forgivable mistake if you have two trailers on
                               the same piece of property and at the gate you see the number
                               for that piece of property and the first house you encounter is
                               right there, that would be very forgivable for the sheriff to
                               stop right here and assume that the first house—that this is the
                               house that corresponds to that address. And that’s a very
                               reasonable mistake for him to make. But the ultimate result
                               of it was—whatever mistake was made, my clients weren’t
                               served.


Because appellants’ proof is uncorroborated, it is insufficient to rebut the recitation in the return

that the sheriff’s deputy delivered it to the “within named.” Thus, the trial court did not abuse

its discretion in denying appellants’ motion for new trial on this basis. We overrule appellants’

first issue.



                                                 11
Craddock Factors

               Because we hold that the trial court did not abuse its discretion in denying appellants’

motion for new trial on the basis of defective service of citation, we turn to Craddock. A trial court

abuses its discretion if it refuses to set aside a default judgment and grant a new trial where: (1) the

failure of the defendant to answer before judgment was not intentional or the result of conscious

indifference, but due to a mistake or an accident; (2) the motion for new trial sets up a meritorious

defense; and (3) granting a new trial will occasion no undue delay or otherwise injure the party

taking the default judgment. Craddock, 133 S.W.2d at 126. If the plaintiff does not controvert the

defendant’s affidavits in support of a new trial motion, the trial court must accept as true the

affidavits’ factual assertions regarding the Craddock elements. Director, State Employees Workers’

Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).



       (A)     Mistake or Accident

               Appellants assert that their evidence established that their failure to file an answer

was due to mistake, not conscious indifference. To support their motion for new trial, appellants

presented their own affidavits, as well as the affidavits of appellants’ counsel and appellants’

counsel’s paralegal, which do not contain any factual assertions regarding appellants’ failure

to answer, but instead state: “I have read the First Amended Motion for a New Trial and statements

contained therein pertaining thereto are within my personal knowledge and are true and correct.”

Santos’s affidavit further asserts that he did not promise to give Rosie or Sam any property.




                                                  12
               In appellants’ first amended motion for new trial, they assert that some time in

May,5 one of them—they do not specify which, and appellants’ counsel testified that he does not

remember—obtained a copy of Rosie’s original petition from the courthouse and brought it to

appellants’ counsel’s office. Appellants’ counsel testified that this appellant obtained the petition

from the courthouse because “he wanted to—he couldn’t get in contact with my office or he couldn’t

get in contact with me personally, and he wanted to see what had been done on the case.” Appellants

contend that although the petition had been delivered to appellants’ counsel’s office, appellants’

counsel was unaware of it because his paralegal failed to enter it into the internal docketing system.

Appellants assert that during a monthly inspection of his files, appellants’ counsel discovered the

petition and “contacted the court.” Appellants have presented no evidence of the manner in which

counsel contacted the court or when this contact occurred. Presumably, it was before June 11, when

appellants filed their motion for new trial. At the hearing on the motion for new trial, Rosie’s

counsel argued that a defendant is bound by his attorney’s actions and that an internal docketing

mistake is not sufficient to set aside a default judgment. He further argued:



       And in the affidavits of defendants’ counsel—and they’re a little unclear, as I pointed
       out in my response, but first of all he said that he was given paperwork in April.
       That’s the first motion for new trial. Now the second motion for new trial he
       acknowledges he got the paperwork in May. Now, I’m not sure which one is the
       truth, but in any event he had sufficient information in his hands to determine that


       5
           Appellants initially asserted in their motion for new trial that this delivery occurred
“on around April 26, 2007.” Appellants’ first amended motion for new trial states that it occurred
“on around May 26, 2007.” At the hearing on the motion for new trial, appellants’ counsel testified
that it occurred “sometime around May, late May.” Appellants’ answer was due May 21, thus, it is
unclear on this record whether the original petition was in appellants’ counsel’s possession before
the answer was due.

                                                 13
       there was something that needed to be done. He had all the data he needed to file an
       answer, and he had two weeks to do it and he did not respond in that fashion.


       I think that that in and of itself can be construed as conscious indifference. And
       certainly he intentionally did not file an answer; he intentionally did not look more
       closely at the paperwork from which he could have concluded that an answer was
       due. There was more than sufficient information for Counsel to conclude that there
       was something that he needed to do to file an answer.



               Failing to file an answer intentionally or due to conscious indifference means “the

defendant knew it was sued but did not care.” Levine v. Shackelford, Melton & McKinley, L.L.P.,

248 S.W.3d 166, 168 (Tex. 2008) (per curiam) (quoting Fidelity, 186 S.W.3d at 576). When

determining whether the defendant’s failure to file an answer was not due to intentional disregard

or conscious indifference, a court looks to the knowledge and acts of the defendant. Evans,

889 S.W.2d at 269. Generally, when the defendant relies on an attorney to file an answer, the

defendant must establish that the failure to answer was not intentional or the result of the conscious

indifference of either himself or his attorney. See, e.g., Levine, 248 S.W.3d at 169; Estate of Pollack

v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993). The defendant’s burden as to the first prong of the

Craddock test is satisfied when the defendant’s factual assertions, if true, negate intentional or

consciously indifferent conduct and are not controverted by the plaintiff. Evans, 889 S.W.2d at 268.

In determining if the defendant’s factual assertions have been controverted, the court looks to all the

evidence in the record. Id. at 269.




                                                  14
               The trial court’s ruling indicates that it found that although appellants may have

negated conscious indifference on their part by providing evidence that they delivered a copy of the

petition to their attorney, they did not negate conscious indifference on the part of their attorney:



       I believe when a petition, an original petition, is delivered to a lawyer’s office, that
       should be enough diligence, if you will, on the part of the client to get an answer
       filed. And I’m not satisfied with your claim that your paralegal made a mistake and
       didn’t put it on the calendar or docket or give it to you.



We agree that by delivering a copy of the petition to their attorney, appellants took sufficient action

to negate conscious indifference on their part. However, we hold that appellants’ counsel’s actions,

while perhaps negligent, do not reach the level of conscious indifference.

               Rosie argues that conscious indifference means “a failure to take some action

which would seem indicated to a person of reasonable sensibilities under the same circumstances.”

However, the Texas Supreme Court recently clarified that the first prong of the Craddock test is not

a negligence standard. Levine, 248 S.W.3d at 168. In Levine, the attorney knew of the deadline

to file an answer and agreed to file one by that date, but failed to do so. Id. at 169. He again failed

to meet an extended deadline. Id. He eventually emailed a draft answer to the parties, but never

attempted to confirm that it was filed “despite repeated discussions, emails, and contact with the

opposing party warning him that if he did not file an answer, [the opposing party] would take a

default judgment.” Id. The Court held that “[t]his pattern of ignoring deadlines and warnings from

the opposing party amounts to conscious indifference.” Id.




                                                  15
                Our survey reveals that in cases holding that the acts of attorneys reached the level

of conscious indifference, the nonmovant presented evidence that the movant’s attorney was

aware of the impending default judgment or that the movant’s attorney had repeatedly ignored

deadlines or communications. See, e.g., Padilla v. Hollerman Dev., L.P., No. 04-08-00739-CV,

2009 Tex. App. LEXIS 2917, at *10 (Tex. App.—San Antonio Apr. 29, 2009, no pet.) (mem. op.)

(holding it was not abuse of discretion for trial court to deny motion for new trial when attorney

looked at petition and instructed client no answer was needed because service was improper, but

testified he did no research regarding whether answer was due and if he had, he would have

filed answer); Kern v. Spencer, No. 2-06-199-CV, 2008 Tex. App. LEXIS 5582, at *15-17

(Tex. App.—Fort Worth July 24, 2008, no pet.) (mem. op.) (holding it was not abuse of discretion

for trial court to deny motion for new trial when evidence included: six certified mailings notifying

attorney of submission date; uncontroverted statements regarding attorney’s recurring pattern of

failure to prosecute case, show up for depositions, and respond to discovery; and testimony that

attorney often used excuse of not having been notified); 21st Century Home Mortgage v. City of

El Paso, 281 S.W.3d 83, 86-87 (Tex. App.—El Paso 2008, no pet.) (holding it was not abuse of

discretion for trial court to deny motion for new trial when attorney testified that he thought client

was not party to lawsuit and was confused as to why client was served, but nonmovant presented

citation stating that client had been sued in second amended petition and that default would be taken

if client did not answer).6


        6
          The cases Rosie cites in which the movant’s error or inaction amounted to conscious
indifference predate the Texas Supreme Court’s clarification of conscious indifference in Levine
and appear to apply a negligence standard. See, e.g., Advanced Aesthetics, Inc. v. Creative Beauty

                                                 16
                Here, appellants have presented evidence that they delivered the original petition to

their attorney’s office, but that because of his paralegal’s administrative error, he was not aware of

it and thus did not know that an answer was due. Appellants provided the affidavits of their attorney

and his paralegal attesting to the explanation of the administrative error provided in the motion

for new trial. Although it should have been no surprise to appellants that Rosie filed a lawsuit in

district court since she had filed a request to take Sam’s deposition prior to suit five months earlier,

by delivering a copy of the petition to their attorney, appellants took sufficient action to negate

conscious indifference. Appellants retained their current attorney in April 2007, five months

after the request to take Sam’s deposition prior to suit, and Rosie has presented no evidence

that appellants’ counsel was aware of this request. Rosie has presented no evidence to controvert

appellants’ contention that their attorney was unaware that a petition was filed and an answer was

due. Nor has she presented evidence that she warned appellants or their attorney that she would take

a default or that appellants or their attorney had engaged in a pattern of disregarding deadlines. She

likewise has not presented evidence controverting appellants’ proof of the paralegal’s error in failing

to enter the petition into the internal docketing system. See Fidelity, 186 S.W.3d at 576 (“The

affidavits here show neither intent nor indifference. Instead, they detail Fidelity’s efforts to establish




Innovations, Inc., No. 2-04-078-CV, 2005 Tex. App. LEXIS 1142, at *15 (Tex. App.—Fort Worth
Feb. 10, 2005, pet. denied) (mem. op.) (holding that “a person of reasonable sensibilities under the
same circumstances would have taken action to file an answer . . . prior to the date the trial court
signed the default judgment”); Prince v. Prince, 912 S.W.2d 367, 370 (Tex. App.—Houston
[14th Dist.] 1995, no writ) (holding that court “interpret[s] conscious indifference to mean a failure
to take some action which would seem indicated to a person of reasonable sensibilities under the
same circumstances”).


                                                   17
a system that would avoid precisely what happened. As Drewery did not controvert this proof, the

trial court was not at liberty to disregard it.”).

                Because appellants have presented evidence that their failure to answer was due to

their attorney’s mistake and Rosie has presented no controverting evidence, we hold that appellants

met the first prong of the Craddock test.



        (B)     Meritorious Defense

                The second prong of the Craddock test requires appellants to “set up” a meritorious

defense in their motion for new trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 927

(Tex. 2009) (per curiam). “Setting up a meritorious defense does not require proof ‘in the accepted

sense.’” Id. at 927-28 (quoting Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)). Rather, a motion

for new trial sets up a meritorious defense if it alleges facts which in law would constitute a defense

to the plaintiff’s cause of action and is supported by affidavits or other evidence providing

prima facie proof that the defendant has such a defense. Id. at 928. Once such requirements are met,

controverting evidence offered by the nonmovant should not be considered. Id.

                Appellants’ first amended motion for new trial asserted “[d]efendants deny that

Plaintiff was given permission to move onto property by Mr. David Cervantes, the rightful owner

of the property and that Plaintiff was promised ownership of the property in exchange for Plaintiff’s

moving onto the property.” Appellants submitted affidavits from each appellant stating “I have read

the First Amended Motion for a New Trial and statements contained therein pertaining thereto are

within my personal knowledge and are true and correct.” Santos’s affidavit further stated:


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        My son Santos Cervantes, Jr. [Sam] asked to move onto the property because of his
        financial problems he was having due to his terminal illness and the criminal
        problems his sons and grandsons were having in Houston, Texas. I made no promise
        to give my son Santos Cervantes any property. He was allowed them [sic] to move
        onto the property only because of the hardship he then suffered.



At the hearing on the motion for new trial, in addition to asserting that Santos and Esther never

promised to give the property to Rosie or Sam, appellants’ counsel also asserted:

        Primarily the meritorious defense is that the defendants, Mr. Santos Cervantes and
        Ms. Esther Cervantes, number one, they don’t own the property that the plaintiff is
        saying they gave to the plaintiff. You cannot convey more than you own; that’s a
        fundamental rule of property. You can’t convey that which you do not own. The
        property belongs to David . . . the petition itself says, Santos and Esther made the
        promises. They don’t implicate David in making any promises.



                The facts alleged in appellants’ motion, if true, would constitute a defense to Rosie's

cause of action. Further, the affidavits appellants submitted and appellants’ counsel’s testimony

at the hearing on the motion for new trial provided prima facie support for the defense. Appellants

have satisfied the second prong of the Craddock test.



        (C)     No Undue Delay

                The third prong of the Craddock test is that the motion for new trial be filed at a

time when the granting thereof will occasion no undue delay or otherwise injure the plaintiff. Evans,

889 S.W.2d at 270. “Once a defendant has alleged that granting a new trial will not injure

the plaintiff, the burden of going forward with proof of injury shifts to the plaintiff.” Id. The

purpose of the third prong of the Craddock test is to protect a plaintiff against the sort of undue delay


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or injury that would result in a disadvantage when presenting the merits of the case at a new trial,

“such as a loss of witnesses or other valuable evidence.” Id.

               In their motion for new trial, appellants asserted that granting a new trial would not

result in delay or prejudice and offered to go to trial immediately and to reimburse Rosie for the

expenses incurred in obtaining the default judgment.7 Rosie’s response to the motion for new trial

does not assert that granting a new trial would cause her any injury, nor did she present any evidence

of injury at the hearing on the motion for new trial. Thus, Rosie has failed to show an injury that

negates appellants’ allegation of no undue delay or injury. Appellants have satisfied the third prong

of the Craddock test.

               Because appellants have satisfied all three prongs of the Craddock test, we need not

reach appellants’ remaining issue.



                                          CONCLUSION

               Because appellants satisfied all three prongs of the Craddock test, we hold that the

trial court abused its discretion in refusing to set aside the default judgment against appellants.

Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.




       7
           A party’s willingness to go to trial immediately and pay for the expenses of the
default judgment are important factors for the court to look at in determining whether it should
grant a new trial, but are not dispositive. Director, State Employees Workers’ Comp. Div. v. Evans,
889 S.W.2d 266, 270 n.3 (Tex. 1994).

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                                           __________________________________________

                                           David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Reversed and Remanded

Filed: November 5, 2009




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