REVERSE and REMAND and Opin ion Filed April 21, 2021 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00771-CV ANDREA M. REYES, Appellant V. GUADALUPE TORRES AND ROS ALINDA SILVA, Appellees On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-13110 MEMORANDUM OPINION Before Justices Myers, Par tida-Kipness, and Garcia Opinion by Justice Garcia Andrea Reyes appeals the entry of a post-answer default judgmen t against her in Guadalupe Torres and Rosali nda Silva’s (together, “appellees ”) trespass to try title suit because she did not receive notice of the trial sett ing. 1 We conclude Reyes proved that she did not receive notice, and therefore the trial court erred in denying her motion for new trial. Accordi ngly, we reverse the trial cou rt’s default judgment and remand the case for a new trial.

1 Appellees did not file a brief.2 I. B ACKGROUND This case has a convoluted history, and the parties are familia r with the underlying facts. Therefore, we r ecite only those facts relevan t to our analysis and disposition. The parties dispute the ownershi p of property in Grand Prairie, Texas. Appellees sued Reyes to quiet title and Reyes answered and appe ared through counsel. Reyes’s counsel later moved to withdraw, and the court granted the motion. In March 2019, appellees’ counsel forwarded a copy of the propo sed withdrawal order to Reyes’s daughter, Joyc e Gutierrez, via email. Gutierre z said that Reyes did not have email, but court filings could be emailed to Gutierrez and she would present and explain them to Reyes. At some point, it appears that trial was set for March 26, 2019 , but there is nothing in our record establishing when this occurred. And alth ough the record reflects that appellees’ counsel emailed Gutierrez copies of ce rtain motions and proposed orders, there is nothing to establish that notice of t he March 26 setting was emailed to Gutierrez or oth erwise sent to Reyes. On March 26, the case was called to trial. Reyes did not appear . The court’s docket sheet states “default judgment,” but no judgment was sig ned on that day. Appellees subsequently filed a “m otion for interlocutory judgme nt” against Reyes3 based on the March 26 declarati on of default. On April 26, 2019 , the judge signed a final judgment against Reyes. Reyes moved for a new trial. Appellees filed objections and a r esponse. Our record does not indicate whether the court conducted a hearing or ruled on appellees’ objections. Instead, the motion was overruled by operation of l aw. II. A NALYSIS Although Reyes complains in three issues, the essence of her co mplaint is that the trial court erred by denying her motion for new trial. “A m otion for new trial is addressed to the trial court’s discretion and the court’s rulin g will not be disturbed on appeal in the absence of a showing of an abuse of discretion .” Cliff v. Huggins , 724 S.W.2d 778, 778–79 (Tex. 1987) . A trial court does not abus e its discretion when it denies a motion for new trial after entry of default ju dgment unless the defaulting party proves the elements identified in Craddock v. Sunshine Bus Lines,
Inc ., 133 S.W.2d 124, 126 (1939). See Dolgencorp of Tex., Inc. v. Lerma , 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). Under Craddock , the party against whom defau lt was entered must show that (1) her failure to appear was not intentional or the result of conscious indifference, (2) she has a meritorious defense, and (3) the granting of a ne w trial will not operate to cause delay or injury to the opposing party. Cliff , 724 S.W.2d at 779. If the party proves the first element under Craddock by establishing that she was not given4 notice of a trial setting, a court may dispense with the second and third elements.
Mathis v. Lockwood , 166 S.W.3d 743, 744 (Tex. 2005). Thus, the initial question before us is whether Reyes proved that she did not receive noti ce of the March 26 trial setting. The law prefers for cases to be resolved on their merits wherev er possible. Ashworth v. Brzoska , 274 S.W.3d 324, 329 (Tex. App.— Houston [14th Dist.] 2008, no pet.). We presume a trial court will only hear a case after proper notice has been given to the parties. Id. Failing to give notice to a par ty of a trial setting violates the due process requirements of the Fourteenth Amendment of the Uni ted States Constitution. Mabon Ltd. v. Afri -Carib Enters., Inc ., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam). In fact, “[a] post-answer default judgment will only be valid if the defendant received notice of the default judgment hearing.” $429.30 v. State , 896 S.W.2d 363, 366 (Tex. App.—Houston [1st Dist.] 1995, no writ). If there is no such notice, a default judgment should be reversed. See LBL Oil Co. v. Int'l Power Servs.,
Inc ., 777 S.W.2d 390, 390–91 (Tex . 1989) (per curiam). Reyes’s affidavit in support of her motion for new trial states that her attorney did not send her notice of the March 26 setting or inform her t hat she needed to be present that day. Likewise, appellees’ counsel provided no noti ce. Reyes notes that the motion for interlocutory judgment states that she was serve d electronically, but5 she says she does not know what that means. 2 Reyes further states that she did not receive notice that the motion fo r interlocutory judgment would be presented to the

court. Although appellees’ response to t he motion for new trial raises several arguments, it does not controvert Reyes’s testimony that she di d not receive notice of the trial setting. 3 Instead, it alleges without supporting evidence that Reyes was provided “notice through her counsel, by the court, on November 27, 2018.” There is nothing in the record to support this assertion. Appellees f urther allege that the court held a status conference concerning Reyes’s counsel on Ma rch 18, 2019 at which Reyes appeared and “notice of the March 26, 2019 trial se tting was indicated.” Again, nothing in the record establishes this as fact. When, as here, a defendant presents verified affidavit testimon y establishing that she never received notice of the trial setting, and the te stimony is uncontroverted, the trial court must accept the testimony as tr ue, set the default judgment aside and grant the defendant a new trial. See Sutherland v. Spencer , 376 S.W.3d 752, 755 (Tex. 2012) (defenda nt satisfies her burden by presenting

2 Moreover, as recited in the motion, by the time the interlocut ory motion was filed, “default judgment” had already been noted on the court’s docket. 3 For example, the motion objects to Reyes’s affidavit as incomp etent because she does not speak English and there was no certificate of translation. Our record shows otherwise. The appellees also challenge the attorney’s verification for the motion as imprope r and conclusory. As we previously noted, there is no indication the court considered or ruled on appelle es’ objections. Moreover, there is no argument before us challenging the motion for new trial as deficient.6 uncontroverted factual assertions that, if true, entitle her to new trial); Cliff v. Huggins , 724 S.W.2d 778, 779 (Tex. 1987) (holding that defendant estab lished he was entitled to new trial when he provided uncontroverted testi mony that he never received notice of trial setting). Because Reyes’s affidavit is uncontroverted, the evidence establishes that Reyes did not receive notice of the t rial setting. Consequently, the trial court abused its discretion by denying Reyes’s motion for new trial. We reverse the trial court’s default judgment and re mand this proceeding for a new trial. See T EX

. R. A PP

. P. 43.2(d).

190771F.P05 /Dennise Garcia/ DENNISE GARCIA JUSTICE7 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT ANDREA M. REYES, Appellant

No. 05-19-00771-CV V.

GUADALUPE TORRES AND ROSALINDA SILVA, Appellees On Appeal from the 193rd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-17-13110. Opinion delivered by Justice Garcia. Justices Myers and Partida-Kipness participating.
In accordance with this Court’ s opinion of this date, the judg ment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial. It is ORDERED that appellant ANDREA M. RE YES recover her costs of this appeal from appellee GUADAL UPE TORRES AND R OSALINDA SILVA.
Judgment entered April 21, 2021.