Ardetra Lewis v. Housing Authority of Austin ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00800-CV
Ardetra Lewis, Appellant
v.
Housing Authority of Austin, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
NO. C-1-CV-15-008003, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
Ardeta Lewis appeals from the trial court’s post-answer default judgment against her
in favor of the Housing Authority of Austin (HACA). In two issues, Lewis contends that the trial
court abused its discretion in proceeding to trial and denying her motion to set aside the default
judgment because HACA failed to prove that she had actual or constructive notice of the trial setting
and Lewis met the three-part test under Craddock for setting aside a default judgment. See Craddock
v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). For the reasons that follow, we
affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Lewis was a resident of Chalmers Court, a public housing community owned and
operated by HACA. Jarrell Green is the father of Lewis’s child and was a frequent guest at her
residence. HACA brought a forcible detainer action against Lewis in justice court alleging
nonpayment of rent and seeking to evict her and all other occupants. See Tex. R. Civ. P. 500.3(d)
(providing for eviction cases in justice court). Lewis appeared pro se at an informal conference and
at the bench trial. The justice court awarded HACA judgment for possession of the premises, rent,
and costs. Acting pro se, Lewis filed an appeal, seeking trial de novo in the county court. See id.
506.3 (providing that appeal from justice court must be tried de novo in county court). The county
clerk issued a Notice of Appeal, which confirmed receipt and filing of the appeal transcript from the
justice court and notified Lewis that if she had not filed a written answer in justice court, it was
necessary for her to do so in county court, and that if an answer was not received within eight days
after the appeal transcript was filed, the other party could take a default judgment against her.1 In
September 2015, the county clerk mailed the Notice of Appeal to Lewis at her Chalmers Court
address by certified mail, return receipt requested. The notice was signed for, and the signature on
the return receipt appears to resemble the name “Jarrell Green.”2 HACA asserts that the county clerk
also mailed the Notice of Appeal by first class mail, but the record does not contain a copy of any
such mailing.
In October 2015, HACA sent Lewis a letter asking Lewis to choose between
suggested trial dates and times and to contact HACA’s counsel with her selection. HACA sent the
letter to Lewis at her Chalmers Court address by first class mail and by certified mail, return receipt
1
The appellate record does not reflect whether Lewis filed a written answer in the justice
court proceeding.
2
In its opening brief, HACA argues that the signature appears to be that of Green. However,
in response to Lewis’s reply brief—in which Lewis points out that Green denied signing for any
letters for Lewis, that HACA did not ask him if the signature on the return receipt was his, and that
the record contains no examples of Green’s signature—HACA concedes that the evidence does not
support an inference that Green signed the return receipt.
2
requested. When HACA did not receive a response from Lewis regarding a trial date, it set the case
for trial on November 10, 2015, at 9:00 a.m., filed its First Amended Petition for Forcible Detainer,
and sent the amended petition and a Notice of Trial Setting to Lewis at her Chalmers Court address.
The notice included a certificate of service signed by counsel for HACA, certifying that the notice
had been served on Lewis at her Chalmers Court address on November 2, 2015, by first class mail
and certified mail, return receipt requested. Lewis did not attend the trial on November 10, 2015.
HACA offered into evidence copies of the two letters it had sent Lewis with proof of mailing,
including copies of envelopes, certified mail receipts, and U. S. Postal Service tracking information.
The tracking information for both certified letters indicated that the notices of certified mail were
delivered but did not indicate whether the letters were claimed or returned unclaimed. The trial court
entered a default judgment against Lewis and awarded HACA judgment for possession, rent, late
fees, cable charges, maintenance charges, and attorney’s fees.
Acting pro se, Lewis filed a Motion to Set Aside Default Judgment, asserting that she
had not received notice of the trial setting. At the hearing on the motion, HACA offered into
evidence the same exhibits it had offered at trial concerning mailing of the two letters and notice of
trial setting, with updated U. S. Postal Service tracking information for the certified letters indicating
that the maximum hold time had expired and they remained unclaimed. The tracking information
for the second letter and notice of trial also indicated that it had been returned to the U. S. Postal
Service. HACA also offered into evidence a copy of the county clerk’s Notice of Appeal with the
signed certified mail return receipt. Lewis and Green both testified that Lewis had not received
notice of the trial setting. Lewis verified her address and stated that it was the only address she
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used—that she had “used another address” but her mail “comes [to the Chalmers Court address]
now.” She testified that she “received other court dates . . . other hearings . . . in the mail” and “went
to every single one of those” but did not receive either the first class or certified mailings concerning
trial and if she had, she “would have been at court.” When asked how she could explain why the
letter mailed by first class was not returned as undeliverable, she stated, “I can’t explain it.” When
asked “who all” lived at her apartment, she responded, “I live in my apartment.” Lewis also testified
that there is no one else who stays with her that picks up her mail.
Green testified that he lived with his mother and did not “stay” at Lewis’s apartment
but was there every day. He referred to Lewis’s residence as “our apartment” and stated that there
were five other apartments with the same number, that all the mailboxes were in the same area, and
that “we get other people’s mail all the time,” but as far as the notice that was supposed to have
come, “we’ve never gotten it back from anybody else.” Green testified that Lewis receives mail at
the Chalmers Court address, that her address had not changed in the past three months, that he
checks the mail sometimes if Lewis is busy and asks him to, and that Lewis also receives mail at a
couple of other addresses. He testified that he did not recall signing for any mail or envelopes for
Lewis but had signed for a package. HACA did not ask Green if the signature on the return receipt
for the Notice of Appeal was his signature, and neither party offered an example of his signature
into evidence.
In addition, Green testified that Lewis went to the county clerk’s office to pay her rent
on November 5, 2015, five days before the trial, asked about any court dates, and was told that there
were none. Lewis alleged the same in her Motion to Set Aside Default Judgment dated
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November 30, 2015.3 The trial court denied Lewis’s Motion to Set Aside Default Judgment. This
appeal followed.4
STANDARD OF REVIEW
We review a trial court’s denial of a motion for new trial for an abuse of discretion.
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). A trial court abuses its
discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules
and principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). Generally, before a default
judgment can be set aside and a new trial granted, the defaulting party must satisfy the three elements
known as the Craddock test. Craddock, 133 S.W.2d at 126; Cliff v. Huggins, 724 S.W.2d 778, 779
(Tex. 1987) (stating that Craddock test applies to post-answer default judgments). The Craddock
test is well established: A trial court should set aside a default judgment and order a new trial in any
case in which (1) the defaulting party’s failure to answer or to appear was not intentional, or the
result of conscious indifference, but was due to a mistake or an accident; (2) the defaulting party has
a meritorious defense or claim; and (3) the motion is filed at a time when the granting of a new trial
will not occasion delay or work other injury to the prevailing party. Craddock, 133 S.W.2d at 126.
When a defaulting party moving for new trial meets all three elements of the Craddock test, then a
3
The appellate record also contains a second Motion to Set Aside Default Judgment dated
December14, 2015—after the trial court had signed an order denying Lewis’s motion to set aside—in
which Lewis alleged that the signed return receipt offered into evidence at the hearing on her motion
to set aside was falsified, disputed that the signature on the return receipt was that of Green, and
asserted that even if it were his signature, she should not “be held responsible or liable for someone
who is not a part of the case or on my lease.”
4
Lewis obtained counsel through the Texas Third Court of Appeals Pro Bono Program and
does not appear pro se in this appeal.
5
trial court abuses its discretion if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926. A
party who proves lack of notice of a trial setting satisfies the first Craddock element because one
cannot show intent or conscious indifference with regard to a trial of which one is unaware. Mathis
v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (per curiam); Limestone Constr., Inc. v. Summit
Commercial Indus. Props., Inc., 143 S.W.3d 538, 543–44 (Tex. App.—Austin 2004, no pet.) (citing
Smith v. Holmes, 53 S.W.3d 815, 818 (Tex. App.—Austin 2001, pet. denied)).
DISCUSSION
In her first issue, Lewis argues that the trial court abused its discretion in proceeding
to trial and in denying her motion to set aside the default judgment because HACA failed to prove
that she had actual or constructive notice of the trial setting. A defendant who has made an
appearance in a cause is entitled to notice of the trial setting as a matter of due process under the
Fourteenth Amendment. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84–85 (1988); LBL Oil Co.
v. International Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam). Under
Rule 21a “[e]very notice required by [the Texas Rules of Civil Procedure] . . . may be served in
person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court
in its discretion may direct.” Tex. R. Civ. P. 21a(a)(2). Service by mail is complete upon deposit
of the documents in a properly addressed envelope, postage prepaid, in a post office or
official depository of the U. S. Postal Service. Tex. R. Civ. P. 21a(b)(1); Giddings v. Curtis,
No. 04-15-00102-CV, 2015 Tex. App. LEXIS 11564, at *6 (Tex. App.—San Antonio Nov. 10, 2015,
no pet.) (mem. op.); Approximately $14,980.00 v. State, 261 S.W.3d 182, 186 (Tex. App.—Houston
[14th Dist.] 2008, no pet.). A certificate of service by a party or an attorney of record, or the return
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of the officer, or the affidavit of any person showing an authorized method of service shall be prima
facie evidence of the fact of service. Tex. R. Civ. P. 21a(e); Mathis, 166 S.W.3d at 745. “[N]otice
properly sent pursuant to Rule 21a raises a presumption that notice was received.” Mathis,
166 S.W.3d at 745; accord Approximately $14,980.00, 261 S.W.3d at 186. The presumption may
be rebutted by opposing evidence that the mailing was not received. Tex. R. Civ. P. 21a(e);
Approximately $14,980.00, 261 S.W.3d at 186.
Trial and Default Judgment
At the trial, HACA’s evidence included copies of both of the letters it had sent—the
letter requesting trial dates and the letter and notice of trial setting—addressed to Lewis at her
Chalmers Court address, along with copies of the envelopes sent by first class mail. Service by first
class mail was a proper manner of service prescribed by Rule 21a. See Tex. R. Civ. P. 21a(a)(2)
(providing for service by “mail”); Mandel v. Lewisville Indep. Sch. Dist., No. 02-15-00222-CV,
2016 Tex. App. LEXIS 6983, at *4 n.3 (Tex. App.—Fort Worth June 30, 2016, pet. filed) (observing
that Rules 21a provides for service “by mail”); Giddings, 2015 Tex. App. LEXIS 11564, at *6
(noting that Rule 21a was amended effective January 1, 2014, to permit service by “regular mail”);
Bexar Cty. Hosp. v. Harlan, No. 04-15-00155-CV, 2015 Tex. App. LEXIS 8188, at *12 (Tex.
App.—San Antonio Aug. 5, 2015, pet. denied) (mem. op.) (same); see also Lamont A. Jefferson,
Trends and Traps in Rules of Civil Procedure, 70 The Advoc. (Tex.) 48, 59 (2015) (“For documents
not filed electronically, the notable changes to Rule 21a are the . . . elimination of the ‘certified or
registered’ mail requirement for traditional mail.”).
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The notice of trial setting contained a certificate of service stating that Lewis had been
served by first class mail in compliance with Rule 21a, creating a presumption that Lewis had been
properly served with notice of the hearing. See Tex. R. Civ. P. 21a(e); Mathis, 166 S.W.3d at 745.
Lewis did not appear at trial and thus did not offer any evidence that she did not receive the first
class mailing so as to rebut this presumption. See Tex. R. Civ. P. 21a(e); Approximately $14,980.00,
261 S.W.3d at 186. Because there is nothing in the trial court’s record that rebuts this presumption,
and there is affirmative evidence that notice of the trial setting was sent to Lewis, the trial court did
not abuse its discretion in proceeding with the trial.5 See Dougherty-Williams v. Dougherty,
No 01-13-01087-CV, 2014 Tex. App. LEXIS 6659, at *5–6 (Tex. App.—Houston [1st Dist.]
5
As noted above, although HACA offered updated U. S. Postal Service tracking information
at the hearing on the Motion to Set Aside Default Judgment, the tracking information offered at trial
indicated that notice of delivery had been left at Lewis’s Chalmers Court address but did not indicate
that the letter was unclaimed or returned to the U. S. Postal Service. Evidence that a letter has been
returned by the U. S. Postal Service “unclaimed” rebuts the presumption of service. See In re E.A.,
287 S.W.3d 1, 5 (Tex. 2009) (concluding that presumption of service arising from proper
mailing was negated by mailing’s return as “unclaimed”); Approximately $14,980.00 v. State,
261 S.W.3d 182, 189 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that returned
envelope bearing the U. S. Postal Service “unclaimed” mark and return receipt indicating that
delivery was twice attempted but not completed rebutted presumption); Etheredge v. Hidden Valley
Airpark Ass’n, 169 S.W.3d 378, 382 (Tex. App.—Fort Worth 2005, pet. denied) (stating that
presumption of notice was rebutted where notice was returned marked “unclaimed”). Even if we
were to assume that the U. S. Postal Service tracking information admitted into evidence at the time
of trial was sufficient to establish that the certified letters were “unclaimed” so as to rebut the
presumption of service by certified mail, that would not affect our determination based on Lewis’s
failure at trial to rebut the presumption of notice by first class mail. See Tex. R. Civ. P. 21a(a)(2);
Mandel v. Lewisville Indep. Sch. Dist., No. 02-15-00222-CV, 2016 Tex. App. LEXIS 6983, at *4
n.3 (Tex. App.—Fort Worth June 30, 2016, pet. filed); Giddings v. Curtis, No. 04-15-00102-CV,
2015 Tex. App. LEXIS 11564, at *6 (Tex. App.—San Antonio Nov. 10, 2015, no pet.) (mem. op.).
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June 19, 2014, no pet.) (mem. op.) (holding that trial court did not err in granting default judgment
where plaintiff failed to rebut affirmative evidence of notice of trial setting).
Motion to Set Aside Default Judgment
At the hearing on Lewis’s Motion to Set Aside Default Judgment, Lewis and Green
testified that Lewis did not receive notice of the trial, thus rebutting the presumption of service. See
Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (per curiam) (concluding that
presumption of timely service was rebutted by party’s affidavit); Cliff, 724 S.W.2d at 779–80
(holding that presumption is not evidence and “vanishes” when opposing evidence is introduced and
that appellant rebutted presumption of notice of trial setting by uncontroverted sworn affidavit and
testimony at hearing that he never received notice); In re Estate of Check, 438 S.W.3d 829, 834–35
(Tex. App.—San Antonio 2014, no pet.) (holding that attorney’s affidavit that he never received
document in question rebutted presumption); Approximately $14,980.00, 261 S.W.3d at 189
(concluding that appellant successfully rebutted presumption of receipt where attorney testified to
not receiving notice); Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex. App.—Houston [1st Dist.]
2004, no pet.) (stating that mere denial of receipt is sufficient to rebut presumption of receipt). In
addition, presumption of notice by certified mail was rebutted by the updated tracking information
indicating that the notice of trial setting was returned to the U. S. Postal Service unclaimed. See
In re E.A., 287 S.W.3d 1, 5 (Tex. 2009) (concluding that presumption of service arising from proper
mailing was negated by mailing’s return as “unclaimed”); Approximately $14,980.00, 261 S.W.3d
at 189) (holding that returned envelope bearing the U. S. Postal Service “unclaimed” mark and return
receipt indicating that delivery was twice attempted but not completed rebutted presumption);
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Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378, 382 (Tex. App.—Fort Worth 2005,
pet. denied) (stating that presumption of notice was rebutted where notice was returned
marked “unclaimed”).
However, rebuttal of the presumption of service does not conclusively establish lack
of service. See In re Estate of Check, 438 S.W.3d at 834–35 (holding that rebuttal of presumption
does not end inquiry or conclusively establish absence of service). “A presumption is nothing more
than a rule for the guidance of the trial judge in locating the burden of production at a particular
time.” Texas A & M Univ. v. Chambers, 31 S.W.3d 780, 784 (Tex. App.—Austin 2000, pet. denied).
Once a presumption is rebutted, the presumption itself “vanishes,” but the facts giving rise to it do
not vanish. In re Estate of Check, 438 S.W.3d at 835. A denial of receipt is not conclusive and
merely presents a fact issue for the factfinder. Texaco, 137 S.W.3d at 767 (citing Cooper v. Hall,
489 S.W.2d 409, 415 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.)). The evidence on the issue
is then evaluated as it would be in any other case. General Motors Corp. v. Saenz, 873 S.W.2d 353,
359 (Tex. 1993). “The presumption of receipt is overcome conclusively only when ‘the evidence
tending to support the contrary inference is conclusive, or so clear, positive, and disinterested
that it would be unreasonable not to give effect to it as conclusive.” Texaco, 137 S.W.3d at
767–68 (citing Employers’ Nat. Life Ins. Co. of Dal., Tex. v. Willits, 436 S.W.2d 918, 921
(Tex. Civ. App.—Amarillo 1968, writ ref’d n.r.e.) (quoting Southland Life Ins. Co. v. Greenwade,
159 S.W.2d. 854, 857 (Tex. 1942))). Thus, when Lewis rebutted the presumption of notice, the trial
court was presented with an issue of fact to resolve. See Kelly v. Brenham Floral Co.,
10
No. 01-12-01000-CV, 2014 Tex. App. LEXIS 9464, at *7–8 (Tex. App.—Houston [1st Dist.]
Aug. 26, 2014, no pet.) (mem. op.); Texaco, 137 S.W.3d at 767.
At the hearing on the Motion to Set Aside Default Judgment, in addition to offering
documentary evidence of service, HACA’s attorney made statements concerning the mailing of the
two letters. His statements, which were not made under oath, included that he had mailed the letter
regarding trial dates to Lewis at her Chalmers Court address by first class mail and by certified mail,
return receipt requested; that the first class letter was not returned as undeliverable; that he did not
hear from Lewis; that he then sent a second letter to Lewis at the same address by first class mail and
by certified mail, return receipt requested, notifying her that he had set the case for trial and
enclosing a copy of the notice of trial setting; and that the second first class letter was not returned
as undeliverable and the second certified letter was “unclaimed and expired and was returned.”
Although an attorney’s statements generally must be under oath to be considered evidence,
the opponent of the testimony can waive the oath requirement by failing to object when he
knows or should know objection is necessary. See Mathis, 166 S.W.3d at 745; Banda v. Garcia,
955 S.W.2d 270, 272 (Tex. 1997); Martin v. Federal Nat’l Mortg. Ass’n, No. 04-15-00233-CV,
2016 Tex. App. LEXIS 4051, at *5 (Tex. App.—San Antonio Apr. 20, 2016, no pet.) (mem. op).
Here, the record shows that HACA’s attorney was attempting to prove service, and Lewis should
have known to object to the unsworn statements. See Mathis, 166 S.W.3d at 745 (holding that pro
se appellant waived oath requirement when she failed to object to unsworn testimony in
circumstances that clearly indicated opposing counsel was tendering evidence based on personal
knowledge on sole contested issue) (citing Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005)
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(stating that pro se litigant is held to the same standards as licensed attorneys and must comply with
applicable laws and rules of procedure)); Banda, 955 S.W.2d at 272 (holding that attorney’s unsworn
statements clearly offered to prove existence and terms of oral agreement were
evidence where opposing party failed to object to trial court’s failure to administer oath); Martin,
2016 Tex. App. LEXIS 4051, at *5 (stating that where attorney was clearly attempting to prove
nonreceipt of service through unsworn statements, opposing party should have known to object).
Therefore, the evidence the trial court had to evaluate consisted of Lewis’s and Green’s denial of
service and HACA’s exhibits and testimony. See Texaco, 137 S.W.3d at 767; Saenz, 873 S.W.2d
at 359.
When the evidence presented by the defaulting party is controverted by the opposing
side, it is the duty of the trial court, as factfinder, to ascertain the facts surrounding the default, and
in so doing to judge the credibility of witnesses and the weight to be given their testimony.
Sheppard v. Sheppard, No. 07-14-00074-CV, 2015 Tex. App. LEXIS 10691, at *9 (Tex.
App—Amarillo Oct. 15, 2015, no pet.) (mem. op); Fernandez v. Peters, No. 03-09-00687-CV,
2010 Tex. App. LEXIS 8473, at *26 (Tex. App.—Austin Oct. 19, 2010, no pet.) (mem. op); Harmon
Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265 (Tex. App.—Texarkana 1992, writ dism’d);
Jackson v. Mares, 802 S.W.2d 48, 51 (Tex. App.—Corpus Christi 1990, writ denied). In
determining whether a party’s failure to appear was intentional or due to conscience indifference,
a court looks to the knowledge and acts of the party. In the Interest of R.R., 209 S.W.3d 112, 115
(Tex. 2006) (per curiam). Because the trial court can view a witness’s demeanor, the trial court, as
12
factfinder, is given great latitude to believe or to disbelieve a witness’s testimony, particularly if the
witness is interested in the outcome. In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000).
Here, when asked to explain how it was that she did not receive the notice sent by
first class mail that was not returned as undeliverable, Lewis stated that she did not understand why
and could not explain it, but she “didn’t receive it.” Green testified that there were other apartments
with the same number, that they got people’s mail all the time and would “go and give it to them,”
but that “anything that—that she has [sic] supposed to be in the mail and it hasn’t came [sic], we’ve
never gotten it back from anybody else.” The trial court could have discredited the testimony of
Lewis and Green that Lewis did not receive the notice of trial setting and credited the evidence and
testimony of HACA that it was mailed to Lewis at her Chalmers Court address by first class mail and
was not returned. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986) (stating that trier
of fact may believe one witness and disbelieve others and resolve inconsistencies in testimony of any
witness). In addition, the trial court could have discredited Lewis’s and Green’s testimony based on
discrepancies in their testimony, as well as on her assertion in her Motion to Set Aside Default
Judgment and Green’s testimony that Lewis went to the courthouse five days before the trial date,
asked if there was a trial setting, and was told that there was no setting, especially in light of the fact
that the clerk’s record contains the notice of setting and reflects that it was filed ten days prior to the
trial date. “The trial court was entitled to decide whether [Lewis] had presented evidence
‘conclusive, or so clear, positive, and disinterested’ as to overcome the presumption of receipt
[conclusively], and the court resolved this fact issue in favor of the [HACA].” See Texaco,
137 S.W.3d at 768 (quoting Willits, 436 S.W.2d at 921).
13
Because we may not substitute our judgment for that of the factfinder, on this record,
we conclude that the trial court did not abuse its discretion in determining that Lewis failed to
establish that she did not receive actual notice of the trial setting and that her failure to appear at trial
was not intentional, or the result of conscious indifference, but was due to a mistake or an accident
and that the trial court did not abuse its discretion in denying Lewis’s Motion to Set Aside
Default Judgment.6 Dolgencorp, 288 S.W.3d at 926; Craddock, 133 S.W.2d at 126; Sheppard,
2015 Tex. App. LEXIS 10691, at *9–10 (concluding that trial court did not abuse discretion in
ascertaining facts and judging credibility of witnesses, determining that appellant’s failure to answer
before default was result of conscience indifference and not due to accident or mistake, and
upholding trial court’s denial of motion for new trial); Kelly, 2014 Tex. App. LEXIS 9464, at *9–10
(holding that trial court did not abuse its discretion in discrediting appellant’s testimony and in
determining that appellant did not satisfy first element of Craddock). Because Lewis failed to satisfy
the first prong of Craddock, we need not consider whether she met the other two requisites. See
Sheppard, 2015 Tex. App. LEXIS 10691, at *10; Munoz v. Rivera, 225 S.W.3d 23, 28 (Tex.
App.—El Paso 2005, no pet.); Continental Cas. Co. v. Davilla, 139 S.W.3d 374, 382 (Tex.
App.—Fort Worth 2004, pet. denied). We overrule Lewis’s first issue.
6
Because we conclude that the trial court did not abuse its discretion in determining that
Lewis received actual notice and failed to meet the first element of Craddock, any discussion of
Lewis’s constructive notice is irrelevant. Therefore, we do not reach Lewis’s argument in her first
issue that HACA did not prove that she had constructive notice, and we overrule Lewis’s second
issue, in which she argues that “if Craddock applies to constructive notice cases,” she has shown all
of the Craddock elements. See Tex. R. App. P. 47.1; In re E.A., 287 S.W.3d at 3 (stating that if
defendant is properly served with process, she must prove three Craddock elements to have default
judgment set aside).
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CONCLUSION
Having overruled Lewis’s issues, we affirm the trial court’s judgment.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Goodwin and Bourland
Affirmed
Filed: December 7, 2016
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