REVERSE and REMAND and Opinion Filed April 21, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00771-CV 

ANDREA M. REYES, Appellant 

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 

MEMORANDUM OPINION 

Before Justices Myers, Partida-Kipness, and Garcia 

Opinion by Justice Garcia 

Andrea Reyes appeals the entry of a post-answer default judgment against her 

in Guadalupe Torres and Rosalinda Silva’s (together, “appellees”) trespass to try 

title suit because she did not receive notice of the trial setting.1

 We conclude Reyes 

proved that she did not receive notice, and therefore the trial court erred in denying 

her motion for new trial. Accordingly, we reverse the trial court’s default judgment 

and remand the case for a new trial. 

 1

 Appellees did not file a brief. 
2 

I. BACKGROUND

This case has a convoluted history, and the parties are familiar with the 

underlying facts. Therefore, we recite only those facts relevant to our analysis and 

disposition. 

The parties dispute the ownership of property in Grand Prairie, Texas. 

Appellees sued Reyes to quiet title and Reyes answered and appeared 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 proposed withdrawal 

order to Reyes’s daughter, Joyce Gutierrez, via email. Gutierrez 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 although the record 

reflects that appellees’ counsel emailed Gutierrez copies of certain motions and 

proposed orders, there is nothing to establish that notice of the March 26 setting was 

emailed to Gutierrez or otherwise 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 signed on that day. 

Appellees subsequently filed a “motion for interlocutory judgment” against Reyes 
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based on the March 26 declaration 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 response. Our 

record does not indicate whether the court conducted a hearing or ruled on appellees’ 

objections. Instead, the motion was overruled by operation of law. 

II. ANALYSIS

Although Reyes complains in three issues, the essence of her complaint is that 

the trial court erred by denying her motion for new trial. “A motion for new trial is 

addressed to the trial court’s discretion and the court’s ruling 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 abuse its discretion 

when it denies a motion for new trial after entry of default judgment 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 default 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 new 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 given 
4 

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 notice of the March 26 

trial setting. 

The law prefers for cases to be resolved on their merits wherever 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 party of a trial setting violates the 

due process requirements of the Fourteenth Amendment of the United 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 that she needed to be 

present that day. Likewise, appellees’ counsel provided no notice. Reyes notes that 

the motion for interlocutory judgment states that she was served electronically, but 
5 

she says she does not know what that means.2

 Reyes further states that she did not 

receive notice that the motion for interlocutory judgment would be presented to the 

court. 

Although appellees’ response to the motion for new trial raises several 

arguments, it does not controvert Reyes’s testimony that she did 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 further allege that the 

court held a status conference concerning Reyes’s counsel on March 18, 2019 at 

which Reyes appeared and “notice of the March 26, 2019 trial setting was indicated.” 

Again, nothing in the record establishes this as fact. 

When, as here, a defendant presents verified affidavit testimony establishing 

that she never received notice of the trial setting, and the testimony is 

uncontroverted, the trial court must accept the testimony as true, set the default 

judgment aside and grant the defendant a new trial. See Sutherland v. Spencer, 376 

S.W.3d 752, 755 (Tex. 2012) (defendant satisfies her burden by presenting 

 2

 Moreover, as recited in the motion, by the time the interlocutory 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 incompetent 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 improper and conclusory. As we previously noted, 

there is no indication the court considered or ruled on appellees’ 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 established he 

was entitled to new trial when he provided uncontroverted testimony 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 trial 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 remand this proceeding 

for a new trial. See TEX. R. APP. P. 43.2(d). 

190771F.P05 

 

/Dennise Garcia/ 

DENNISE GARCIA 

JUSTICE 
7 

S 

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 judgment 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. REYES recover her costs of 

this appeal from appellee GUADALUPE TORRES AND ROSALINDA SILVA.

Judgment entered April 21, 2021.