Opinion
NUMBER 13-15-00083-CV
03-31-2016
RANDOL RENE LOPEZ, Appellant, v. MARY BALDERRAMA, Appellee.
On appeal from the 197th District Court of Willacy County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
Appellant, Randol Rene Lopez, appeals from a post-answer default judgment in favor of appellee, Mary Balderrama. By two issues, appellant contends that he is entitled to a new trial because he did not receive notice of the trial held in this case and appellee failed to produce evidence to support her claim for relief. We reverse and remand.
Appellee has not filed a brief in this matter.
I. BACKGROUND
Appellee filed suit seeking the determination of the ownership interests and for partition of two tracts of land in Willacy County. Appellee alleged in her petition that she and the named defendants, who included appellant, were co-owners of the tracts of land. According to appellee, appellant's ownership interest, if any, in the tracts was "unknown and/or uncertain." Appellee claimed that she owned a twenty percent interest in the tracts of land while her other living siblings, Mary Lou Garza, Roberto M. Garza, and Janie Garza (appellant's mother) each owned a twenty percent interest. Appellee also alleged that the three grandchildren of her deceased sibling, Gilberto Garza, collectively owned a twenty percent interest in the properties. Appellee requested the trial court to determine the shares of the joint owners of the properties and to order a "private sale in light of the inability to partition the subject property in kind and an order adjudging the net proceeds (after the payment of all monies advanced by [appellee] and costs of this suit and attorney's fees) to be distributed proportionately among the parties and such other and further relief to which [appellee] may [have been] entitled at law or in equity."
Appellant filed his original answer and his mother, Janie Garza, filed her original answer stating that she had "granted a [twenty percent] interest in each of the aforementioned properties to" appellant and that she no longer had any ownership interests in the properties to her knowledge. Apparently, the trial court set a status hearing for August 20, 2014. However, there is nothing in the clerk's record showing that notice of this hearing was sent to appellant. And, although the hearing is designated in the record as a status hearing, the trial court, without hearing any evidence regarding the ownership rights or the feasibility to partition the properties in kind, granted appellee's request for sale of the properties with the proceeds to be divided amongst appellee, Mary Lou Garza, Roberto M. Garza, Janie Garza, and the deceased's grandchildren in even shares. At the conclusion of this hearing, the trial court requested for appellee to submit an order to that effect.
On August 22, 2014, Robert M. Garza filed a motion to set aside the oral order, claiming that after "checking with the Willacy County District Clerk's Office," someone with that office "advised" him that "no citation or summons was sent out to the Defendants or [appellee]" which he claimed may have violated rules 21, 21a and 301. On that same day, appellant filed his motion to set aside the oral order of the trial court. Appellant claimed that he was unaware that a status hearing or trial had been set in this case on August 20, 2014. Appellant stated in his motion that "[u]pon further consultation with the Willacy County District Clerk's Office" he "discovered that there had indeed been a hearing of the above styled Cause" and that "[he] was informed that during a Temporary Restraining Order hearing held on or about June 12, 2014, [the trial court] stated that [it] wanted to hear the Judicial Partition Hearing first and at that point might have said a specific date." According to appellant, at the TRO hearing, he did not hear the trial court set a date for the partition trial. Both appellant and Roberto M. Garza requested for the trial court to set aside its oral order and to hold a new trial on the matter with notification to the defendants of such hearing "by verifiable means such as through the USPS certified mail."
On September 16, 2014, the trial court signed and entered its final order concluding that partition in kind is not feasible and cannot be achieved fairly and equitably and ordering that the properties be placed for public sale by the Willacy County Sheriff with the proceeds of the sale to be returned to the trial court for distribution as follows: (1) appellee, Mary Lou Garza, Roberto M. Garza, Janie Garza each receiving twenty percent; (2) the grandchildren of the deceased, Gilberto Garza, each receiving 1/3 of twenty percent; and (3) reimbursement to appellee "for all expenses incurred by [appellee] for filing fees, costs and expenses and attorney's fees to be determined by the [trial court] at the time of distribution." The trial court also ordered "[t]hat any person occupying the premises comply with this Order and peacefully allow for the sale of the subject properties and abandon the premises no later than (10) days before the date of sale." On January 21, 2015, the trial court denied appellant's motion to set aside the order. This appeal followed.
In his pleadings, appellant claimed that he resided on a portion of one of the properties.
II. DISCUSSION
Trial courts have broad discretion in ruling on motions for new trial. Limestone Constr. v. Summit Commercial Indus. Props., 143 S.W.3d 538, 542 (Tex. App.—Austin 2004, no pet.). And the appellate court reviews a trial court's denial of a motion for new trial for an abuse of discretion. Id.
A trial court must set aside a post-answer default judgment when the defendant satisfies the test articulated by Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). 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. The law presumes that a trial court will hear a case only after giving proper notice to the parties. Importantly, then, if the defendant did not receive notice of a trial setting, he satisfies the first prong of Craddock and need not prove the existence of a meritorious defense to be entitled to a new trial. The law prefers that cases be resolved on their merits wherever possible, rather than by default. Accordingly, a trial court abuses its discretion in denying a new trial to a defendant who satisfies the Craddock test.Ashworth v. Brzoska, 274 S.W.3d 324, 328-29 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Moreover, this Court dispenses with the third element of Craddock when the first element is established by proof that the defaulted party was not given notice of a trial setting. See Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex. 2005) (per curiam) (noting that the second Craddock element is obviated and that several courts of appeals dispense with proof of the third Craddock factor in post-answer default judgments wherein no notice was given to the non-appearing defendant); see also In re C.A.C., No. 13-10-00332-CV, 2011 WL 3631958, at *3 (Tex. App.—Corpus Christi Aug. 18, 2011, no pet.) (mem. op.) (explaining that this Court has dispensed with the second and third Craddock factors in a post-answer default judgment if the defendant establishes no notice was provided).
Here, there is no evidence in the record that notice had been mailed to appellant or that appellant received any notice pursuant to rule 21a of a trial setting for August 22, 2014. See Ashworth, 274 S.W.3d at 330 ("Under Texas Rule of Civil Procedure 21a, all notices other than citation—including notification of trial settings—may be served by delivering a copy to the party (1) in person, (2) by agent, (3) by courier receipted delivery, or (4) by certified or registered mail, properly addressed with prepaid postage, to the party's last known address."). Thus, unless appellee presented evidence to controvert appellant's no-notice claim, a new trial was required. See id. at 328-29. However, the trial court did not hold a hearing on appellant's motion for new trial, and appellee did not file a response to appellant's motion. Therefore, because appellant has met his burden to show that notice of the August 22, 2014 trial setting was not sent or received and appellee did not controvert his no-notice claim, appellant does not need to prove the other Craddock factors to be entitled to a new trial. See In the Matter of the Marriage of Runberg, 159 S.W.3d 194, 200 (Tex. App.—Amarillo 2005, no pet.); In the Matter of the Marriage of Parker, 20 S.W.3d 812, 817-18 (Tex. App.—Texarkana 2000, no pet.); see also In re C.A.C., 2011 WL 3631958, at *3. Accordingly, we conclude that the trial court abused its discretion by denying appellant's motion for new trial, and we sustain appellant's first issue.
Having sustained appellant's first issue, we need not address his second issue as it is not dispositive of this appeal. See TEX. R. APP. P. 47.1. --------
III. CONCLUSION
We reverse the trial court's judgment and remand for proceedings consistent with this opinion.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed this the 31st day of March, 2016.