in the Interest of I.D.R., and A.B.R., Children

Reversed and Remanded and Memorandum Opinion filed June 22, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00384-CV
IN THE INTEREST OF I.D.R., AND A.B.R., CHILDREN
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2018-40587
MEMORANDUM OPINION
This appeal arises out of a suit to establish the parent-child relationship.
Rejadia Rogers, the mother of I.D.R. and A.B.R. (“Mother”), failed to appear for
trial. The trial court entered a default judgment which adjudicated issues of child
support, custody, and access rights. Mother’s timely-filed motion for new trial was
denied. In five issues on appeal, Mother contends the trial court erred when it
refused to set aside the default judgment and attacks the sufficiency of the evidence
supporting the judgment. We reverse and remand.
I. FACTS1
On June 19, 2018, the Office of the Attorney General of Texas (“OAG”)
filed suit on behalf of I.D.R. and A.B.R. under Chapter 231, Texas Family Code.
The petition sought genetic testing to confirm parentage and to establish child
support, access and custody rights. The original petition recites that I.D.R. and
A.B.R. “reside with the mother, REJADIA SHAUNE SMALL ROGERS” and named
Derrick Dion Robinson Jr. as their father. An initial hearing was set for December
4, 2018.
On August 15, 2018, Mother executed a “Waiver of Service” in the case,
which recites:
I have read these documents and understand them. Pursuant to Rule
119, Texas Rules of Civil Procedure, I hereby enter my appearance in
this case for all purposes and waive the issuance and service of
process, including citation. I understand that this waiver has the same
force and effect as if citation had been issued and served on me as
provided by law.
Both Mother and Father attended the December 4 hearing. Both signed an
agreed “Order for Parentage Testing” which identified Mother as the “Obligee”
and Father as the “Obligor.” The Order includes a section entitled “Order Setting
Hearing” which states, in relevant part:
The parties are ORDERED to appear before this Court . . . in person
or by counsel, at 8:03 o’clock a.m., on February 5, for hearing on the
merits.
However, Mother did not appear at the February 5 hearing. On February 6,
2019, the trial court entered a “Default Order Establishing the Parent-Child
Relationship.” In this order, Father is identified as the “Obligee” and Mother as
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Because the parties are familiar with the facts of the case and the evidence adduced at
trial, we set forth the facts of the case necessary to advise the parties of the court’s decision and
the basic reasons for it in light of the issues raised. See Tex. R. App. P. 47.1, 47.4.
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the “Obligor.” The Order required Mother to make monthly child-support
payments; it also established a retroactive child-support obligation based on the
period from February 1, 2016 to the date of judgment. Father was named
managing conservator; Mother was named possessory conservator, with her
periods of possession and access “continuously supervised” by Father.
Mother secured legal counsel and timely moved to set aside the default
judgment. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d
124, 126 (1939). In her motion, Mother alleged that her failure to appear at the
February 5 hearing was neither intentional nor the result of conscious indifference,
but was primarily due to car trouble. She stated she lived in an area with no public
transportation; that on the date of trial her car was not working; that she could not
afford to pay for alternative transportation to the courthouse; and that she contacted
the court and the OAG on the morning of the hearing in an effort to reschedule.
She also stated she was pregnant at that time and was suffering with medical
complications arising out of that pregnancy on the day of trial.
Mother’s affidavit also set forth facts concerning a meritorious defense. She
testified that she had been the primary caretaker for I.D.R. and A.B.R. from birth
until early 2018, when Father and members of his family removed them by force
from her home. Mother made a report to the Harris County Sheriff’s Office about
the incident. Based on this, she argued she should have been named either
managing conservator or a joint managing conservator.
Finally, Mother stated she could quickly go to trial and offered to reimburse
the other parties for reasonable costs and expenses incurred if the motion were
granted.
The motion was heard April 10, 2019. Father was duly served but failed to
appear. The OAG filed a general denial but offered no evidence. At the hearing,
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Mother testified consistent with the facts alleged in her motion for new trial and
presented further information on her meritorious defenses. On April 16, the trial
court entered an order denying relief. This appeal followed.
II. ANALYSIS
Mother presents five issues to this Court for review.
ISSUE 1: The trial court abused its discretion by denying Rogers’
motion for new trial because she met all the Craddock factors for
setting aside her post-answer default judgment.
ISSUE 2: The trial court abused its discretion by denying Rogers’
motion for new trial because the default judgment was only for a post-
answer default and was not a judgment nihil dicit.
ISSUE 3: If the judgment had been nihil dicit, the trial court erred in
granting such judgment and abused its discretion in denying Roger’s
motion for new trial, because Rogers had an answer on file.
ISSUE 4: If the judgment had been nihil dicit, the trial court abused
its discretion in denying Roger’s motion for new trial because she met
all the Craddock factors for setting aside a judgment nihil dicit.
ISSUE 5: Rogers is entitled to have the default judgment set aside
and to be granted a new trial, because the default judgment’s grant of
access to Rogers only upon the mutual agreement of Robinson is not
supported by legally or factually sufficient evidence.
Mother’s first and fourth issues both assert that she met her burden under
Craddock and that the trial court erred when it found otherwise. Because we
believe these issues to be dispositive, we first address whether the trial court
abused its discretion when it denied Mother’s motion to set aside the default
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judgment under Craddock.
A. STANDARD OF REVIEW
We review a trial court’s denial of a motion to set aside a default judgment
for an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987). A
default judgment should be set aside and a new trial granted if (1) the failure to
answer or appear was not intentional or the result of conscious indifference but was
due to a mistake or accident, (2) the defendant sets up a meritorious defense, and
(3) the motion is filed at such time that granting a new trial would not result in
delay or otherwise injure the plaintiff. Craddock, 133 S.W.2d at 126. When a
defaulting party moving for new trial meets all three elements of the Craddock test,
a trial court abuses its discretion if it fails to grant a new trial. Dolgencorp of Tex.,
Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009).
The Craddock analysis applies “to all judgments of default, both those
entered on failure of a defendant to file an answer and those entered on failure to
appear for trial.” Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). For purposes
of Mother’s first and fourth issues, then, we dispense with determining the type of
default judgment entered by the trial court.
B. APPLICATION OF CRADDOCK FACTORS
1. FAILURE TO APPEAR
The defaulting party’s burden as to the first Craddock element is satisfied
when her factual assertions, if true, negate intentional or consciously indifferent
conduct by the defendant and those assertions are not controverted by the plaintiff.
See Fidelity and Guar. Ins. Co. v. Drewery Const. Co., Inc., 186 S.W.3d 571, 576
(Tex. 2006). We determine this question by looking to the knowledge and acts of
the defendant. Dir., State Emp. Workers' Comp. Div. v. Evans, 889 S.W.2d 266,
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269 (Tex. 1994). We apply this first prong liberally, considering each case on an
ad hoc basis. Ashworth v. Brzoska, 274 S.W.3d 324, 331–32 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (citing Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex.
App.—Houston [14th Dist.] 1988, no writ)).
Generally, “some excuse, although not necessarily a good one, will suffice
to show that a defendant's failure to file an answer [or appear] was not because the
defendant did not care.” In re R.R., 209 S.W.3d at 115. The absence of an
intentional failure to answer or appear, rather than a real excuse for not answering,
is the controlling fact. Milestone Operating, Inc. v. ExxonMobil Corp., 388
S.W.3d 307, 309–10 (Tex. 2012) (citing Craddock, 133 S.W.2d at 125)).
Mother’s uncontroverted testimony was that she wanted to come to the
February 5 hearing, but was prevented from doing so by car trouble and by medical
problems. She testified that her car had electrical problems on the date of the
hearing, there was no bus line near her home, and that she could not afford the trip
to the courthouse by cab or Uber. She also called the court and the attorney
general’s office in an effort to reschedule or delay the hearing. Attached to her
motion was a screenshot of her cellular telephone’s call log, showing several phone
calls on the morning of the hearing.
Mother also testified she was about six months pregnant at the time of trial.
She testified she was on leave from her job due to complications from that
pregnancy; that she was treated at the emergency room for abdominal pain and
bleeding the week before trial; and that these symptoms persisted through the trial
date. The record includes paperwork from a January 29 emergency room visit
diagnosing and addressing those issues. Because of these complications, Mother
testified, “I wouldn’t have had a chance to even make it [to court] without
transportation.”
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The OAG contends the trial court could have found that Mother failed to
meet her burden under the first Craddock prong, despite the lack of controverting
evidence. First, it suggests the court could have found that Mother’s testimony
about car trouble was conclusory. See Nichols v. TMJ Co., 742 S.W.2d 828, 831
(Tex. App.—Dallas 1987, no writ). Alternatively, the OAG argues the trial court
could have simply disbelieved Mother’s testimony. See Lynch v. Lynch, 540
S.W.3d 107 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). We disagree with
both contentions.
The Nichols case relied on by the OAG is distinguishable on its facts.
Nichols was a breach of contract action between businesses; the defaulting parties
were represented by counsel. Nichols, 742 S.W.2d at 829. The clients failed to
appear for trial and failed to contact the court regarding their whereabouts; this
forced their attorney to defend the case in their absence. Nichols, 742 S.W.2d at
829. After the trial court entered an unfavorable judgment, the clients moved for
new trial based on Craddock. Each client filed similar affidavits, blaming their
failure to appear on “car trouble.” For example:
On the day this case was set for trial, I experienced car trouble and
could not get to the courthouse for the trial. My attorney had already
told me he was going to try to have the case reset, so I was surprised
to learn the trial had been held without me. My failure to appear at
trial was not intentional in any way. In fact, I look forward to telling
my side of the story.
Id. at 830 (quoting affidavit of client Rex Nichols). The trial court denied their
motions for new trial.
The court of appeals dismissed this entire explanation as conclusory. Id. at
831. It found neither the explanation of “car trouble,” nor the expectation that the
trial would be reset, nor their denial that their failure to appear was intentional,
without more explanation of any of these factors, met the requirements of the first
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Craddock prong. Id.
The OAG’s reliance on Nichols is flawed for several reasons. The first
reason involves the definition of “conclusory” in the context of a default judgment.
As the supreme court noted, default judgments have regularly been overturned
based on testimony that the service papers were “lost”; such testimony is not
conclusory if accompanied by an explanation about surrounding circumstances.
See Drewery Constr. Co., 186 S.W.3d at 575 (collecting cases). Such details
enable the trial court to determine whether this was a case of accident or mistake.
Id. at 575-576. In Mother’s case, she attempted to notify the OAG and the court
that she could not attend the February 5 hearing. By contrast, no such testimony
appears in the Nichols opinion; in fact, the opinion pointedly notes its absence. Id.
at 829.
Nichols is also distinguishable because the complaining clients were
represented by counsel at the time of trial. The trial court was entitled to assume
the clients’ knowledge and actions on the date of trial were guided or informed by
their attorney. No such assumption can be made in this case, as it is undisputed
Mother was proceeding pro se at the time of trial.
Unlike the clients in Nichols, Mother’s testimony here supplied substantive
facts surrounding her failure to appear for trial which were absent from the three-
sentence affidavits set forth in the Nichols opinion. For these reasons, we reject
the OAG’s argument that the trial court could have found Mother’s testimony
regarding her failure to appear to be conclusory, as the trial court did in Nichols.
The OAG next contends that the trial court, sitting as a finder of fact, was
free to disbelieve any part of Mother’s testimony when it denied her motion for
new trial. We disagree. Proof that a party’s failure to appear was not the result of
intentional conduct or conscious indifference is determined from the knowledge
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and acts of the defendant. Strackbein v. Prewitt, 671 S.W.2d 37, 38–39 (Tex.
1984). Where, as here, the only proof of the defaulting party’s knowledge and acts
is uncontroverted, the trial court is not at liberty to disregard that proof. Drewery
Constr. Co., 186 S.W.3d at 576. For that reason, the OAG’s reliance on the Fist
Court of Appeals’ decision in Lynch is misplaced. See Lynch, 540 S.W.3d at 122.
Because we find Mother’s proof is the only proof available on this issue, and
this testimony could not reasonably be read as showing that Mother acted
intentionally or with conscious indifference when she failed to appear for trial, we
find that Mother met her burden under the first Craddock element.
2. MERITORIOUS DEFENSE
A meritorious defense has been set up so as to meet the second Craddock
prong if the movant's motion and supporting affidavits set forth facts which in law
constitute a meritorious defense, regardless of whether those facts are controverted.
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). A meritorious defense is one that, if
proved, would cause a different result upon a retrial of the case, although not
necessarily a totally opposite result. Jaco v. Rivera, 278 S.W.3d 867, 873 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (citing Gotcher v. Barnett, 757 S.W.2d
397, 403 (Tex. App.—Houston [14th Dist.] 1988, no writ)).
Here the default judgment set Mother’s liability for back child support based
on the time period from January 1, 2016 to the date of judgment. Mother testified
that she had possession of the children from January 2016 until at least October
2017, when the children were forcibly taken from her by Father and his family. If
proven, Mother would be entitled to, at a minimum, a credit on the award of back
child support, and that credit is sufficient to establish a meritorious defense under
Craddock. Evans, 889 S.W.2d at 270; Jaco, 278 S.W.3d at 873.
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We find Mother has met the second prong of the Craddock test.
3. NO INJURY CAUSED BY DELAY
Mother asserted in her motion for new trial that she could “quickly” go to
trial if the motion were granted, and offered to reimburse reasonable expenses
caused by the granting of that new trial. This had the effect of shifting the burden
to the other parties in the case to present proof of injury. Evans, 889 S.W.2d at 270.
No such proof has been offered. Moreover, the defendant's willingness to proceed
to trial immediately and willingness to pay the expenses, although not dispositive,
are important factors for the court to consider when determining whether it should
grant a new trial. See, e.g., Angelo v. Champion Restaurant Equip. Co., 713
S.W.2d 96, 98 (Tex. 1986).
We find Mother has met her burden under the third Craddock factor.
Because Mother met her burden as to the three Craddock factors, the trial
court abused its discretion by refusing to set aside its judgment of default. Further,
because our resolution affords the greatest relief to Appellant, we need not address
her remaining issues. Dolgencorp of Tex., Inc., 288 S.W.3d at 930.
III. CONCLUSION
We reverse the judgment of the trial court and remand for a new trial.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Bourliot, Hassan, and Poissant.
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