Monica Vasquez Parsons v. Paul G. Parsons ( 2019 )

Opinion issued October 22, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00902-CV
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MONICA VASQUEZ PARSONS, Appellant
V.
PAUL G. PARSONS, Appellee
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Case No. 2017-77987
MEMORANDUM OPINION
Monica Vasquez Parsons filed her petition for divorce from Paul G. Parsons.
Paul answered. Monica and her attorney failed to appear at trial, and the trial court
entered a post-answer default judgment against Monica. She filed a motion for new
trial with accompanying evidence. The trial court denied the motion, and Monica
appealed.
In her sole issue, Monica contends that the trial court abused its discretion in
denying her motion for new trial because she presented evidence that her failure to
appear was not intentional or due to conscious indifference. We affirm.
Background
Monica married Paul in 2006. They did not have children. After 11 years of
marriage, Monica filed a petition for divorce. Among the grounds for divorce,
Monica claimed that the marriage had become “insupportable because of discord
or conflict of personalities.” Monica asserted that the court should award her a
disproportionate share of the marital estate for several reasons, including “fault in
the breakup of the marriage,” “disparity of earning power of the spouses,”
“wasting of community assets,” and “the size and nature of the separate estates of
the spouses.”
Paul answered and filed a counter-petition for divorce. He requested a just
and right division of the marital estate if the parties did not execute an agreement
for the division of their estate. Paul also requested confirmation that certain
property was his separate property and reimbursement from the community estate.
The trial court amended its initial scheduling order to allow the parties time
to attend mediation. When the parties appeared at the new trial setting, the trial
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court rescheduled trial because the mediator had not recessed mediation. Both
parties received notice of a third trial setting. The parties scheduled a date to
resume mediation, but Monica and her attorney did not appear at mediation. The
mediator filed an impasse letter.
On the day of the third trial setting, Paul and his attorney appeared and
requested a default judgment when Monica and her attorney did not appear. Paul
testified about why the parties were dissolving their marriage. Paul’s attorney
informed the trial court that Monica’s attorney had not responded to his discovery
requests. The trial court admitted the exhibits introduced by Paul’s attorney. Paul’s
attorney also testified to his attorney’s fees. After considering the evidence, the
trial court entered a post-answer default judgment against Monica, granted the
divorce, and awarded Paul $15,612.61 for attorney’s fees. The trial court’s order
divided the marital estate and stated that the division was just and right.
Monica moved for a new trial, arguing that her non-appearance was due to a
mistake or accident because her attorney had a “conflict with another case,” she
tried to “finalize arrangements for the substitute attorney to cover the trial setting,”
yet the substitute attorney failed to appear. Monica explained that she did not
appear because she thought the trial had been reset. Monica’s motion was
supported by her attorney’s affidavit. Paul did not respond to the motion.
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The trial court held a hearing on the motion for new trial. Monica’s attorney
explained that the substitute attorney who she had arranged to appear on her behalf
had broken her ankle. Although the substitute attorney texted her about the injury,
Monica’s attorney did not receive the message in time. The substitute attorney did
not appear at the new-trial hearing to testify. Based on the arguments of counsel
and evidence, and after noting that Monica’s motion for new trial said nothing
about a medical emergency, the trial court denied Monica’s motion for new trial.
Monica appeals.
Denial of Motion for New Trial
Monica argues that the trial court abused its discretion in denying her motion
for new trial because she presented evidence that her failure to appear was not
intentional or due to conscious indifference and because she meets the new-trial
test set forth in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.
1939).
A. Applicable law and standard of review
A post-answer default judgment is permissible when an answer is filed in a
case but a party fails to appear for trial. See Stoner v. Thompson, 578 S.W.2d 679,
682 (Tex. 1979). A post-answer default judgment is valid only if the defaulting
party received adequate notice of the trial setting or default-judgment hearing. In re
$475,001.16, 96 S.W.3d 625, 627 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
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(explaining notice is a requirement before entry of a post-answer default
judgment); TEX. R. CIV. P. 245 (providing that, “when a case previously has been
set for trial, the Court may reset said contested case to a later date on any
reasonable notice to the parties or by agreement of the parties”). If a party receives
post-answer notice of a trial setting and fails to appear, and the trial court grants a
post-answer default judgment, the party may move for a new trial, which should be
granted if she establishes all three of the Craddock prongs: (1) her non-appearance
resulted from an accident or mistake and not intentional or the result of conscious
indifference; (2) the motion for new trial alleges a meritorious defense; and (3)
granting the motion will not cause undue delay or otherwise injure the non-movant.
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (discussing
Craddock test); Lynch v. Lynch, 540 S.W.3d 107, 121 (Tex. App.—Houston [1st
Dist.] 2017, pet. denied) (same).
“A motion for new trial is addressed to the trial court’s discretion and the
court’s ruling will not be disturbed on appeal in the absence of a showing of an
abuse of discretion.” Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987). However, a
trial court abuses its discretion by denying a new trial when all three Craddock
elements are met. Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d
266, 268 (Tex. 1994).
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B. Contrary to Paul’s contention, Monica did not waive analysis under
Craddock
The Texas Supreme Court has stated that its purpose “in adopting the
Craddock standard was to alleviate unduly harsh and unjust results at a point in
time when the defaulting party has no other remedy available.” Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (citing Craddock,
133 S.W.2d at 126). The Craddock test does not apply when the rules of civil
procedure provide a defaulting party with a remedy. Id. Relying on Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002), Paul asserts that
Monica is not entitled to any relief under the Craddock test because Rule 251 of
the Texas Rules of Civil Procedure allows a party to move for continuance of a
trial setting. TEX. R. CIV. P. 251 (governing continuances); see Carpenter, 98
S.W.3d at 685.
In Carpenter, Cimarron received notice of Carpenter’s summary-judgment
motion and scheduled a hearing on the motion but failed to timely respond. Id. at
684. On the day of the hearing, Cimarron filed a motion for leave to file an
untimely response, its proposed response, and a motion for continuance. Id. at 685.
The trial court denied both motions and granted summary judgment in favor of
Carpenter. Id. Cimarron filed a motion for new trial, requesting that the court set
aside the judgment based on equitable principles established in Craddock. Id. at
685. The Court held that Craddock does not apply when procedural rules provide
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the defaulting party a remedy. The Court held that Craddock does not apply “to a
motion for new trial filed after summary judgment is granted on a motion to which
the nonmovant failed to timely respond when the respondent had notice of the
hearing and an opportunity to employ the means our civil procedure rules make
available to alter the deadlines Rule 166a imposes.” Id. at 683–84.
Carpenter is distinguishable from this case because the procedural rules
were unavailable to Monica before default occurred. In Carpenter, the defaulting
party knew of its failure to respond before summary judgment was entered and “at
a point in time when the rules of procedure provided other remedies” Dolgencorp
of Texas, Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009) (distinguishing
Carpenter). The party moved for relief under those rules before default, but the
trial court denied the party’s motions. Under those circumstances, Craddock was
unavailable. Here, Monica’s attorney alleged that she knew she had conflicting
settings and arranged for substitute counsel to appear for her before trial. Paul
would require Monica to have moved for a continuance before Monica would have
had any reason to believe she needed to avail herself of any remedies under the
rules of civil procedure to avoid a default because substitute counsel was supposed
to appear on her behalf. C.f. Smith v. Babcock & Wilcox Const. Co., Inc., 913
S.W.2d 467 (Tex. 1995) (concluding the trial court abused its discretion by
dismissing case because attorney who had conflicting case settings failed to appear
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for trial after the court denied his motion for continuance). We reject Paul’s
assertion that Monica is foreclosed from any relief under Craddock for having
failed to move for a continuance before her trial setting, while under a belief that
an attorney was to appear in her attorney’s place. We now address the Craddock
standard.
C. Trial court did not abuse its discretion
Because it is dispositive, we address only the first prong of the Craddock
test, which required Monica to establish that her failure to appear for trial was not
intentional or the result of conscious indifference. 133 S.W.2d at 126. The first
Craddock element is satisfied when the defaulting party’s “factual assertions, if
true, negate intentional or consciously indifferent conduct . . . and the factual
assertions are not controverted.” Roman v. Ramirez, 573 S.W.3d 341, 352 (Tex.
App.—El Paso 2019, pet. denied) (citing Sutherland v. Spencer, 376 S.W.3d 752,
755 (Tex. 2012)).
Along with her motion for new trial, Monica presented email
communications to show attempts to schedule mediation because, in her view,
“mediation was not completed” and she did not receive notice of the mediation
date. The mediation status suggested to Monica’s attorney that trial would not
move forward. Monica’s attorney also explained her non-appearance at trial:
Specifically, undersigned attorney had a conflict with another case.
Undersigned attorney thought another attorney was covering the
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hearing, however due to a technological defect the substitute attorney
never received confirmation from undersigned attorney to finalize
arrangements for the substitute attorney to cover the trial setting.
Monica attached an affidavit from her attorney attesting to the truth, accuracy, and
personal knowledge of the facts in the motion.
Paul presented evidence as well. First, Paul submitted a letter from the
mediator showing the parties confirmed a date for the rescheduled mediation, and
he explained that neither Monica nor her counsel appeared despite receiving
notice. Second, Paul informed the court that Monica failed to answer discovery
despite several requests.
The trial court, as factfinder, is the sole judge of each witness’s credibility
and the weight to be given to their testimony. Dougherty-Williams v. Dougherty,
No. 01-13-01087-CV, 2014 WL 2809827, at *6 (Tex. App.—Houston [1st Dist.]
June 19, 2014, no pet.) (mem. op.). And “when we review a ruling that results from
the trial court’s having resolved underlying facts, we must defer to the trial court’s
factual resolutions, and any credibility determinations that may have affected those
resolutions, and may not substitute our judgment for the trial court’s judgment in
those matters.” George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.—Houston
[1st Dist.] 2007, no pet.).
We must defer to the trial court’s credibility determinations to determine
whether non-appearance was intentional or due to conscious indifference. Estate of
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Rivers, No. 01-17-00879-CV, 2018 WL 4354351, at *4 (Tex. App.—Houston [1st
Dist.] Sept. 13, 2018, no pet.) (mem. op.). It was within the trial court’s discretion
to disbelieve Monica’s attorney’s explanation of her failure to appear. While her
motion described a “technological defect” that prevented her from receiving actual
notice of the substitute attorney’s non-appearance, it did not describe the
technological defect or identify the substitute attorney. Moreover, that explanation
was inconsistent with her explanation at the new-trial hearing about a leg injury. At
the hearing on the motion for new trial, Monica’s attorney explained that her
associate, D. Baum, sent a text message notify Monica’s attorney about her broken
ankle, but Monica’s attorney did not receive it. The explanation at the hearing did
not align with the explanation in the written new-trial motion. The court noted the
discrepancy at the hearing.
It was also within the trial court’s discretion to disbelieve that Monica’s non-
appearance was due to a misunderstanding about the status of mediation. At the
hearing on the motion, Monica’s attorney stated that Monica did not appear
because an associate would appear to reset the case. Yet, no one appeared, and it
was within the trial court’s discretion to disbelieve the explanation for the non-
appearance.
The trial court observed the inconsistencies in Monica’s explanation, made
credibility determinations, and weighed the evidence before denying Monica’s
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motion for new trial. On this evidence and in deference to the trial court’s
credibility determinations, we conclude that the trial court reasonably could have
found that the failure to appear at the trial setting was intentional or consciously
indifferent conduct. See George, 238 S.W.3d at 468; Rivers, 2018 WL 4354351, at
*4. Thus, we further conclude that the trial court did not abuse its discretion in
denying Monica’s motion for new trial. We overrule Monica’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Sarah Beth Landau
Justice
Panel consists of Justices Lloyd, Goodman, and Landau.
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