law-Craddock-test-on-motion-for-new-trial-after-default | motion for new trial | default judgments |
A trial court’s decision to deny a motion for new trial will not be disturbed on appeal absent an
abuse of discretion. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). However, a trial
court abuses its discretion by failing to grant a new trial when all three Craddock requirements are
met. See id. at 38–39; Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392–93 133 S.W.2d
124, 126 (1939).
Under Craddock, the defendant 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) granting a new
trial will not operate to cause delay or injury to the plaintiff. Craddock, 133 S.W.2d at 126. The trial
court must test the motion for new trial and evidence against the requirements of Craddock and
grant the motion if those requirements are met. See Strackbein, 671 S.W.2d at 39. The historical
trend is toward liberally granting new trials following default. Titan Indem. Co. v. Old S. Ins. Grp.,
Inc., 221 S.W.3d 703, 708 (Tex. App.—San Antonio 2006, no pet.).
CRADDOCK TEST (NEW TRIAL MOTION)
The trial court abuses its discretion in denying a motion for new trial if all of the Craddock elements
are met. Bank One, Tex., N.A., v. Moody, 830 S.W.2d 81, 85 (Tex. 1992). Under Craddock, the
defendant 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, 133 S.W.2d at 126; Ashworth v.
Brzoska, 274 S.W.3d 324, 328B29 (Tex. App.- Houston [14th Dist.] 2008, no pet.). The Craddock
requirements apply to post-answer default judgments. Ivy v. Carrell, 407 S.W.2d 212, 214-15 (Tex.
1966).
The law presumes that a trial court will hear a case only after giving proper notice to the parties. Ashworth,
274 S.W.3d at 329; Jones v. Tex. Dep't of Public Safety, 803 S.W.2d 760, 761 (Tex. App.- Houston [14th
Dist.] 1991, no writ). Specifically, to satisfy due- process requirements, a defendant in a post-answer
default case must have been given notice that the case could be decided on the merits in the event the
defendant failed to appear. See Masterson v. Cox, 886 S.W.2d 436, 439 (Tex. App.- Houston [1st Dist.]
1994, no writ). If a defendant establishes that he did not receive proper notice, he satisfies the first
Craddock element and need not prove a meritorious defense.[3] See Lopez v. Lopez, 757 S.W.2d 721, 723
(Tex. 1988). In that case, a new trial is warranted. See Ashworth, 274 S.W.3d at 329.
Mallory v. Mallory (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Substituted Opinion by Brown)
(post-judgment default judgment in child support case without proper notice to defendant was reversible
error) (objection to affidavit based on best knowledge and belief not preserved for appellate review)
REVERSED AND REMANDED: Opinion by Justice Jeff Brown
Before Chief Justice Hedges, Justices Guzman and Brown
14-06-01009-CV Joel Mallory v. Sharon W. Mallory and The Office of the Attorney General of Texas
Appeal from 310th District Court of Harris County
Trial Court Judge: LISA A. MILLARD
Jaco v. Rivera (Tex.App.- Houston [14th Dist.] Feb. 12, 2009)(Seymore)
(post-answer default judgment, trial court erred in denying motion for new trial, Craddock test elements
satisfied, pro se defendant, appearance in lawsuit)
REVERSED AND REMANDED: Opinion by Justice Seymore
Before Justices Brock Yates, Seymore and Boyce
14-07-00572-CV Gerald Randall Jaco v. Angel Roman Rivera
Appeal from 212th District Court of Galveston County
Trial Court Judge: Susan Elizabeth Criss
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