AFFIRMED; Opinion Filed June 14, 2019.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-01209-CV

WILLIE CHAPPLE, Appellant

V.

BOBBY HALL AND YOLANDA HALL, Appellees

On Appeal from the 134th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-17-16740

MEMORANDUM OPINION

Before Justices Whitehill, Partida-Kipness, and Pedersen, III

Opinion by Justice Partida-Kipness

Willie Chapple appeals from a no-answer default judgment in favor of appellees Bobby 

Hall and Yolanda Hall. In his sole issue, Chapple contends the trial court erred in failing to grant 

a new trial because he satisfied all three Craddock1elements. The Halls have not filed a brief in 

this appeal. For the reasons set forth below, we affirm the trial court’s default judgment. We issue 

this memorandum opinion because the issues are well-settled in law. See TEX. R. APP. P. 47.4

BACKGROUND

After being personally served with citation, Chapple failed to answer the lawsuit the Halls 

filed against him asserting various causes of action based on the parties’ real estate deal/venture

 

1 Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
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involving two rental properties. On July 31, 2018, the trial court signed a default judgment against 

Chapple awarding the Halls $95,563.25 in damages plus attorney’s fees and costs.

Chapple filed an unverified motion for new trial on August 10, 2018 generally asserting 

his failure to answer was the result of mistake or accident, he had a meritorious defense to the full 

amount of the judgment, and the granting of a new trial would not prejudice, delay, or cause injury 

to the other parties. The unsworn motion did not attach any evidence or supporting affidavits. 

Although Chapple sent notice to the Halls that his motion would be heard on September 10, there 

is no indication that a hearing was held. The trial court signed an order denying Chapple’s motion 

on September 12, 2018. Chapple then filed a second motion for new trial/motion to reconsider on 

September 25, 2019.

The second motion contained more extensive grounds for setting aside the default 

judgment and also included Chapple’s supporting affidavit indicating, among other things, he did 

not understand he had to file an answer to the suit and relied on a friend who was a criminal defense 

paralegal who told him he would get notice of a trial date. Chapple also stated that although the 

original agreement called for the parties to split all expenses evenly, the Halls refused to pay for 

repairs beginning in 2008 and the rental income on the properties was inadequate to cover 

expenses. Chapple’s motion also attached an affidavit from Billie Lewis, the third party involved 

in the real estate venture. She largely corroborated Chapple’s version of the parties’ arrangement 

and events. Although Chapple set the motion for a hearing on October 16, 2018, it does not appear 

a hearing was held. The trial court denied the motion the following day. Chapple filed this appeal.

ANALYSIS

In a single issue, Chapple contends the trial court reversibly erred in failing to set aside the 

default judgment and grant him a new trial because he satisfied all three Craddock elements. 

Under Craddock, the judge should set aside a default judgment and grant a new trial if (1) the 
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failure to appear before judgment was due to a mistake or an accident and was not intentional or 

the result of conscious indifference, (2) the motion for new trial sets up a meritorious defense, and 

(3) is filed at a time when its granting will not cause delay or injury to the plaintiff. Craddock, 

133 S.W.2d at 126. We review the trial court’s ruling on a motion for new trial for an abuse of 

discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam).

The defaulting party has the burden to present facts establishing all three prongs of the 

Craddock test. Action Powersports, Inc. v. 1STEL, Inc., 500 S.W.3d 632, 639–40 (Tex. App.—

Texarkana 2016, no pet.). This burden is met with respect to the first element when the factual 

assertions, if true, negate intentional or consciously indifferent conduct by the defendant and are 

uncontroverted by the plaintiff. See In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam). 

“Failing to file an answer intentionally or due to conscious indifference means ‘the defendant knew 

it was sued but did not care.’” Id. (quoting Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 

186 S.W.3d 571, 576 (Tex. 2006) (per curiam)). We note at the outset that Chapple’s first motion 

for new trial was unverified and attached no evidence. Nevertheless, with respect to the first 

Craddock element, Chapple’s motion asserted that Chapple was “unsophisticated in legal matters” 

and did not understand he was required to file an answer and thought he would receive a hearing 

notice before any judgment was rendered. Not understanding a citation and then doing nothing 

after being served does not constitute a mistake of law that is sufficient to meet the first Craddock

element. Id. 

With respect to the second Craddock element, the motion generally alleged that Chapple 

was entitled to recover his initial investment in the property and the rental income was inadequate 

to fund the substantial repairs necessary. A motion for new trial sets up a meritorious defense 

when the facts alleged in the motion and supporting affidavits present facts that in law constitute 

a defense. Lerma, 288 S.W.3d at 928. The motion must be “supported by affidavits or other 
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evidence providing prima facie proof that the defendant has such a defense.” Id. Here, as noted

above, there were no affidavits or other evidence that supported the allegations of a meritorious 

defense in Chapple’s first motion for new trial. Accordingly, the trial court did not abuse its 

discretion in denying the motion.

2

To the extent Chapple complains about the trial court’s denial of his second motion for 

new trial, we note that this motion was untimely because it was filed (1) after the trial court denied 

his first motion and (2) more than thirty days after the default judgment was signed. See McClellan 

v. HICA Educ. Loan Corp. ex rel. Sallie Mae, Inc., 312 S.W.3d 291, 293–94 (Tex. App.—Dallas 

2010, no pet.). A trial court’s order denying an untimely motion for new trial cannot be the basis

of appellate review, even if the trial court acts within its plenary power. See Moritz v. Preiss, 121 

S.W.3d 715, 720 (Tex. 2003). Thus, the trial court’s October 17 order denying Chapple’s second 

motion for new trial is a nullity for purposes of preserving issues for appellate review and we need 

not address it further. See id.at 720–21.

CONCLUSION

Based on the record before us, we conclude the trial court did not err in denying Chapple’s

first motion for new trial and that his second motion for new trial is a nullity for preserving issues 

for appellate review. Accordingly, we affirm the trial court’s default judgment.

 

181209F.P05

 

2

In light of our conclusions with respect to the first two Craddock elements, it is unnecessary to address whether 

Chapple satisfied the third element.

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

WILLIE CHAPPLE, Appellant

No. 05-18-01209-CV V.

BOBBY HALL AND YOLANDA HALL, 

Appellees

On Appeal from the 134th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. DC-17-16740.

Opinion delivered by Justice PartidaKipness, Justices Whitehill and Pedersen, 

III participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellees Bobby Hall and Yolanda Hall recover their costs of this 

appeal from appellant Willie Chapple.

Judgment entered this 14th day of June, 2019.