law-Craddock-test-on-motion-for-new-trial-after-default
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