IN THE

TENTH COURT OF APPEALS

No. 10-08-00306-CV

DONNA ROBINSON,

Appellant

v.

ELLIOTT ELECTRIC SUPPLY,

Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. C2007-00718

MEMORANDUM OPINION

Donna Robinson was sued by Elliott Electric Supply regarding a guaranty 

agreement signed by Robinson. Robinson did not file an answer to the suit and Elliott

Electric was awarded a default judgment. Robinson timely filed a motion for new trial, 

which was overruled by operation of law. Because Robinson met the three elements of 

the Craddock test, we reverse the trial court’s judgment and remand for further 

proceedings.

In one issue, Robinson argues that the trial court erred in effectively denying her 

motion for new trial by allowing it to be overruled by operation of law because, she 

argues, she either received no service of the citation and petition or that the service was 
Robinson v. Elliot Electric Supply Page 2

deficient which would require the default judgment to be set aside and, alternatively, 

she satisfied the Craddock elements to warrant a new trial.

We review a trial court's refusal to grant a motion for new trial for abuse of 

discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009); Cliff v. 

Huggins, 724 S.W.2d 778, 778 (Tex. 1987). 

NO SERVICE/DEFICIENT SERVICE

A default judgment cannot withstand direct attack by a defendant who was not 

served in strict compliance with applicable requirements. Wood v. Brown, 819 S.W.2d 

799, 800 (Tex. 1991) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde 

Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per curiam)); 

Plains Chevrolet, Inc. v. Thorne, 656 S.W.2d 631, 633 (Tex. App.—Waco 1983, no writ). 

Strict compliance does not, however, require "absolute obeisance to the minutest detail." 

Herbert v. Greater Gulf Coast Enters., 915 S.W.2d 866, 871 (Tex. App.— Houston [1st Dist.] 

1995, no pet.).

Robinson contends that she was not served with the citation and petition because 

the officer’s return on the citation indicated that the petition was served in care of 

Robinson’s former employer, Patman Drilling. We disagree with Robinson’s 

contention. It is clearly stated on the face of the return that a true and correct copy of 

the citation and petition was served on “Robinson, Donna, in person....” Robinson’s 

statements to the contrary are insufficient to negate what is written on an officer’s 

return. See Wood v. City of Galveston, 13 S.W. 227, 228 (Tex. 1890). 

Robinson also contends that the return was deficient because it was unclear from 

the face of the return who served the citation and petition and the return was not 
Robinson v. Elliot Electric Supply Page 3

verified. We again disagree with Robinson’s contention. Contrary to her claim, it is 

clear on the face of the return that the citation was served through Constable Pearce by 

Deputy Tackett. Further, pursuant to Rule 107, the return need only be verified by an 

“authorized person” if the person serving it is not an “officer.” TEX. R. CIV. P. 107. 

Because a constable can act through a deputy, the deputy is an officer as contemplated 

by Rule 107. See Travieso v. Travieso, 649 S.W.2d 818, 820 (Tex. App.—San Antonio 1983, 

no writ). Accordingly, the return was not required to be verified.

As to this particular argument, the trial court did not abuse its discretion in 

effectively denying Robinson’s motion for new trial.

THE CRADDOCK TEST

Alternatively, Robinson argues that she met the three elements of the Craddock

test, which would warrant a new trial. A default judgment should be set aside and a 

new trial granted when the defaulting party establishes that (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. Dolgencorp 

of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009); Craddock v. Sunshine Bus Lines, Inc., 

134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). When a defaulting party moving for new 

trial meets all three elements of the Craddock test, then a trial court abuses its discretion 

if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926; Old Republic Ins. Co. v. Scott, 

873 S.W.2d 381, 382 (Tex. 1994).
Robinson v. Elliot Electric Supply Page 4

First Element—Intentional Disregard or Conscious Indifference

In determining whether the failure to appear was due to intentional disregard or 

conscious indifference we must look to the knowledge and acts of the defendant. 

Director, State Emples. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). If 

the factual assertions in the defendant's affidavit are not controverted by the plaintiff, 

the defendant satisfies her burden if her affidavit sets forth facts that, if true, negate 

intentional or consciously indifferent conduct by the defendant. Id. However, 

conclusory allegations are insufficient. Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 

80, 82 (Tex. 1992). In determining if the defendant's factual assertions are controverted, 

we look to all the evidence in the record. Director, 889 S.W.2d at 269.

In her affidavit filed with her motion for new trial, Robinson stated that she was 

not personally served with the citation or a copy of the petition in this suit. She further 

stated that she was unaware of the lawsuit until June 6, 2008 when she was notified by 

Patman Drilling of the default judgment. Robinson then stated in her affidavit that 

when she learned of the default judgment, she immediately contacted counsel. These 

statements set forth facts which, if true, negate intentional or consciously indifferent 

conduct. Elliott Electric did not controvert any of Robinson’s statements. 

Robinson has satisfied the first element of the Craddock test.

Second Element—Meritorious Defense

Setting up a meritorious defense does not require proof "in the accepted sense.”

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 928 (Tex. 2009); Ivy v. Carrell, 407 S.W.2d 

212, 214 (Tex. 1966). This does not mean that the motion should be granted if it merely 

alleges that the defendant "has a meritorious defense." Ivy, 407 S.W.2d at 214. Rather, 
Robinson v. Elliot Electric Supply Page 5

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.

Dolgencorp, 288 S.W.3d at 928; Ivy, 407 S.W.2d at 214. Once such requirements are met, 

controverting evidence offered by the nonmovant should not be considered. Id.

In her motion for new trial, Robinson asserted as her “meritorious defense” that 

1. she served as an assistant to the Chief Operating Officer during 

her employment with Patman Drilling;

2. she was never a principal of Patman Drilling;

3. she has not, and it was never her intent to, “personally guarantee 

any debts of Patman Drilling.” 

While inartfully stated, it appears Robinson is arguing that she did not sign the credit 

agreement with Elliott Electric in her individual capacity. The credit agreement, 

attached to Elliott Electric’s original petition, indicates that Robinson’s signature is 

followed by the words, “Assistant to C.O.O.” Further, Robinson asserts she had not 

personally guaranteed Patman Drilling’s debts. We hold this is sufficient proof of a 

meritorious defense that Robinson did not sign the application for credit in her 

individual capacity and as such did not personally guarantee her employer’s debt to 

satisfy the Craddock test.

Robinson has satisfied the second element of the Craddock test. 

Third Element—Delay or Injury

In satisfying the third Craddock element, once the defendant has alleged that the 

granting of a new trial will not delay or otherwise injure the plaintiff, the burden of 

going forward with proof of injury shifts to the plaintiff for these are matters peculiarly 
Robinson v. Elliot Electric Supply Page 6

within the plaintiff's knowledge. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); see 

also Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 929 (Tex. 2009). An offer to 

reimburse the plaintiff for costs incurred in obtaining the default judgment or readiness 

for trial are not a precondition for granting the motion. Id.; Angelo v. Champion 

Restaurant Equip. Co., 713 S.W.2d 96, 97 (Tex. 1986). 

Robinson alleged in her motion for new trial that granting her motion would not 

injure Elliott Electric or cause an unreasonable delay in rendering a fair and equitable 

judgment between the parties. Elliott Electric did not address this assertion at all in its 

response to Robinson’s motion. 

Therefore, Robinson has satisfied the third element of the Craddock test.

Conclusion

Because Robinson has satisfied all three elements, the trial court abused its 

discretion in effectively denying her motion for new trial by allowing it to be overruled 

by operation of law. Robinson’s issue is sustained.

CONCLUSION

Having sustained Robinson’s sole issue, we reverse the judgment of the trial 

court and remand this case for a new trial.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Reversed and remanded

Opinion delivered and filed November 25, 2009

[CV06]