Opinion
01-22-00657-CV
01-11-2024
GEORGE THOMAS FOLEY III, Appellant v. PATRICIA BENAVIDES-FOLEY, Appellee
On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2022-18657
Panel consists of Kelly, Landau, and Farris, Justices.
MEMORANDUM OPINION
Sarah Beth Landau, Justice
This is an appeal from the trial court's default divorce decree dissolving the marriage between George Thomas Foley III and Patricia Benavides-Foley. In a single issue, George contends the trial court erred by denying his motion for new trial under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Because we conclude George has not satisfied the first Craddock element, we affirm.
Background
When Patricia petitioned to divorce George, George was incarcerated in the Harris County jail. George was personally served with citation in jail on March 29, 2022. Three days later, the case was transferred from the trial court listed on the citation to another court.
The case was transferred from the 246th District Court of Harris County to the 308th District Court of Harris County.
George did not answer or appear for trial. The trial court entered a default divorce decree on May 31, 2022. The decree appointed Patricia as the sole managing conservator of the parties' child, ordered George to pay child support, and divided the marital estate.
George timely moved to set aside the default divorce decree and for a new trial under Craddock. Although George acknowledged that he was served "with some documents" in jail, he disputed that his failure to answer Patricia's suit was intentional or the result of conscious indifference. Instead, he claimed, he could not read the court documents because he did not have his reading glasses in jail and the documents were lost on the same day they were served when jailers searched his cell for contraband. George swore in a supporting affidavit that these circumstances prevented him from learning what the documents were or whether he needed to do anything about them. He also asserted that he lacked access to a computer in jail and could not contact anyone other than Patricia for assistance. George's court-appointed attorney in his criminal matter eventually contacted someone who posted bail for George. George was released on May 15, about two weeks before the default. After his release, George focused on finding a place to live and learned of the divorce from a family member after the trial court entered the default decree.
George argued that if he had known of Patricia's suit, he would have retained counsel to avoid an unjust property division. He alleged he had a meritorious defense because Patricia relied on an inaccurate inventory that inflated his retirement funds, even though those funds had been withdrawn and used to pay off debt-the parties' mortgage, Patricia's car loan, and "various credit cards"-with Patricia's agreement.
Patricia opposed the new trial motion. She argued that even if George could not read or had lost the court documents served on him in jail, he should have been aware of the suit because he received letters from her counsel about the proceedings. She attached as exhibits copies of two letters to George in jail, wherein her counsel notified him that the case had been transferred and set for a temporary orders hearing. Her exhibits also included return-receipts purporting to show George signed for the letters in jail. Patricia complained that George took no steps to uncover the meaning of the court documents that were served on him or to learn about the suit in the two weeks between his release and the default hearing. According to Patricia, the evidence that George received the citation, received letters referencing the case information and hearing dates from her counsel, and did not return home when he was released from jail and instead found a new place to live showed that he knew he had been sued for a divorce but did not care.
The trial court denied the motion without a hearing.
Motion for New Trial
George argues that the trial court abused its discretion by denying his motion for new trial because he satisfied the Craddock test for setting aside a no-answer default judgment.
A. Standard of review and applicable law
We review the trial court's denial of a motion to set aside a default judgment and motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam); Interconex, Inc. v. Ugarov, 224 S.W.3d 523, 536 (Tex. App.-Houston [1st Dist.] 2007, no pet.). The trial court abused its discretion if it acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004).
A no-answer default judgment should be set aside and a new trial granted when the defaulting party establishes the three Craddock elements: (1) the failure to appear was not intentional or the result of conscious indifference, but was the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no delay or otherwise injure the plaintiff. Ugarov, 224 S.W.3d at 536 (citing Craddock, 133 S.W.2d at 126). When a defaulting party meets all three Craddock elements, a trial court abuses its discretion if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926; see also Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992) ("[A]n adjudication on the merits is preferred in Texas.").
The first Craddock element is satisfied when the defendant's factual assertions, "if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff." Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012) (per curiam). "In determining if the defendant's factual assertions are controverted, the court looks to all the evidence in the record." In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam).
"Consciously indifferent conduct occurs when 'the defendant knew [he] was sued but did not care.'" Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012) (quoting Fid. &Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006) (per curiam)). Some excuse, not necessarily even a good one, is enough to show that a defendant's failure to answer was not because the defendant did not care. In re Marriage of Sandoval, 619 S.W.3d 716, 721 (Tex. 2021) (per curiam) (quoting Sutherland, 376 S.W.3d at 755). "The failure to respond must arise from more than mere negligence, and the element of conscious indifference can be overcome by a reasonable explanation." Id. (citing Smith v. Babcock &Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam)).
We consider the defendant's knowledge and acts to determine whether he satisfied his burden on the first Craddock element. Id. "[A] failure to respond is not considered to be intentional or due to conscious indifference merely because it is deliberate; it must also be without adequate justification." Id. at 723. "Proof of justification-accident, mistake (including some mistakes of law), or other reasonable explanation-negates intent or conscious indifference." Id. "In other words, the fact that an inference of conscious indifference may be drawn does not foreclose the defendant from positing a reasonable excuse for his actions." Id.
The second Craddock element requires the defendant to set up a meritorious defense. Craddock, 133 S.W.2d at 126. A meritorious defense is one that, if proved, would cause a different result on 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.). "Setting up a meritorious defense does not require proof 'in the accepted sense.'" Dolgencorp, 288 S.W.3d at 927-28 (quoting Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)). "Rather, the motion sets up a meritorious defense if it alleges facts which in law would constitute a defense to the plaintiff's cause of action and is supported by affidavits or other evidence providing prima facie proof that the defendant has such a defense." Id. at 928. "Once such requirements are met, controverting evidence offered by the nonmovant should not be considered." Id.
The purpose of the third Craddock element is "to protect a plaintiff against the sort of undue delay or injury that would result in a disadvantage when presenting the merits of the case at a new trial, 'such as a loss of witnesses or other valuable evidence.'" Id. at 929 (quoting Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994)). Once a defendant has alleged that granting a new trial will not injure the plaintiff, the burden of proof of injury shifts to the plaintiff. Id.; Jaco, 278 S.W.3d at 873.
B. Analysis
We first consider whether George's failure to answer Patricia's suit was not intentional or the result of conscious indifference but because of an accident or mistake. See Craddock, 133 S.W.2d at 126. George offered the excuse that he did not know that he needed to take any action on the court documents served on him in jail because he did not have his reading glasses there, the documents were lost when jail officials searched his cell the same day he was served, and he lacked access to a computer or other communication resources in jail to help him understand the documents.
In support, George cites our sister court's opinion setting aside a default protective order in Cantu-Garcia v. Medrano, No. 14-21-00171-CV, 2022 WL 16645509, at *1 (Tex. App.-Houston [14th Dist.] Nov. 3, 2022, no pet.) (mem. op.). Like George here, the defendant was served with copies of the protective order application while he was incarcerated. Id. Also like George, he asserted in a motion for new trial that he did not understand the court documents that were served on him in jail. Id. at *2. He explained that he could read and write only in Spanish, so he did not understand the court documents, which were in English, or the need to appear at a hearing. Id. He insisted that he attempted to discover the meaning of the paperwork but was unsuccessful in doing so before the hearing. Id. He called one of the phone numbers on the paperwork and asked his brother to make additional calls. Id. But their calls went unanswered and unreturned, and he could not afford to make more calls from jail. Id. In addition, he provided his criminal defense attorney with the declaration supporting the protective order application. Id. But she could not find any information about the case because the records were restricted as confidential, and the district attorney did not answer her information request. Id.
The State, for its part, argued that the defendant had not satisfied the first Craddock element because there were additional things he could have done to learn about the protective order proceedings, such as sending all (not just some) of the paperwork he received to his criminal defense attorney, asking someone to translate the documents for him in jail, or trying to contact the district court where the protective order application was filed. Id. at *4.
The appellate court disagreed with the State, noting that the State's criticism of the defendant's efforts did not reflect the Craddock test because "[m]erely negligent or mistaken behavior does not show conscious indifference." Id. (citing Marriage of Sandoval, 6619 S.W.3d at 721). The appellate court concluded: "Under the circumstances, including being in jail and unable to read the documents served, [the defendant] made reasonable efforts to find out about the documents, making a phone call himself, having his brother make additional calls, and seeking assistance from his criminal defense attorney." Id. Therefore, the defendant's excuse met the first prong of Craddock. Id.
While Patricia does not contest that George could not read the court documents that were served on him or that he lost possession of those documents on the same day they were served, she contends Cantu-Garcia is not persuasive authority because the trial court could infer from additional facts that George knew he had been sued but did not care. She asserts that, unlike Cantu-Garcia, George took no steps to learn about the paperwork or the suit even though he received letters from her counsel about the proceedings and he did not return to the family home when he was released from jail two weeks before the default hearing. We agree with Patricia that the trial court could reach a different conclusion here than in Cantu-Garcia.
Essentially, George's excuse is that he did not know something needed to be done about the court documents because he never had a chance to read them. Although there are some circumstances under which a defendant may meet the first Craddock element with a contention that he did not know what to do after being served with a suit, "that contention must be paired with some explanation or action justifying the failure to answer." $2,442.00 Current Money of the U.S. v. State, No. 02-19-00021-CV, 2019 WL 3334434, at *2 (Tex. App.-Fort Worth July 25, 2019, no pet.) (mem. op.); see also In re R.R., 209 S.W.3d at 115 (explaining that while not understanding a citation and then doing nothing following service is insufficient to meet Craddock requirements, a failure to understand can be a part of a reasonable excuse for failing to act). Here, Patricia controverted George's alleged lack of knowledge or understanding of the pending divorce suit with evidence that George received letters from her counsel informing him that the case had been transferred to another court, that a temporary orders hearing was scheduled, and that he could participate in the hearing by Zoom from jail. The letters contained the case style listing both George's and Patricia's names, the trial court in which the suit was pending, and the trial court cause number. George does not dispute that he received counsel's letters, that he retained possession of them, or that he was able to read them and gain some knowledge of the divorce proceeding by them.
But even if we assume that George could not read the letters for the same reason he could not read the service documents-he did not have reading glasses in jail-George was released from jail on May 15, about two weeks before the default hearing. He argues that "once bailed out, [he] assumed that a temporary orders hearing occurred on May 12," three days before his release, and that it "would have been reasonable for him to assume that the divorce had not been finalized." George has not explained how his assumption that the divorce had not been finalized upon his release excuses his failure to answer the divorce suit.
After reviewing the controverting evidence of George's pre- and post-release acts and of his knowledge, we conclude that the trial court reasonably could have found that George "knew [he] was sued but did not care." Sutherland, 376 S.W.3d at 755. In other words, the trial court could have determined that George acted with conscious indifference to the proceedings when he failed to answer the suit, and thus did not meet the first Craddock element. See Craddock, 133 S.W.2d at 126; see also Evans, 889 S.W.2d at 269 (stating that courts look to knowledge and acts of defaulting party to determine whether failure to answer or appear was intentional or due to conscious indifference). Accordingly, we hold the trial court did not abuse its discretion by denying George's motion for new trial.
We therefore overrule George's sole issue.
Conclusion
We affirm the trial court's judgment.