Opinion issued April 9, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00423-CV

———————————

SOUTHWEST WARREN, INC. AND THOMAS EUGENE MCCAIN, 

Appellants

V.

THERESA CRAWFORD, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Case No. 72986

O P I N I O N

Appellee, Theresa Crawford, obtained a default judgment against appellants, 

Southwest Warren, Inc. and Thomas Eugene McCain, for injuries sustained from 

an automobile accident between Crawford and McCain. Forty-nine days after the 

judgment was entered, Southwest Warren and McCain filed a motion to extend the 
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post-judgment deadlines and a motion for new trial. The trial court granted the 

motions and then, after a motion to reconsider both motions, entered an order 

denying both motions. The trial court denied Southwest Warren and McCain’s 

subsequent motion to reconsider. In four issues on appeal, Southwest Warren and 

McCain challenge the trial court’s ultimate denial of their motions to extend the 

post-judgment deadlines and for new trial and challenge the sufficiency of the 

evidence supporting the default judgment.

We reverse and remand for a new trial.

Background

Crawford and McCain were involved in a car wreck. The wreck occurred 

while McCain was performing work as an employee of Southwest Warren. Some 

time later, Crawford sued Southwest Warren and McCain for injuries sustained in 

the car wreck. While both were served, neither Southwest Warren nor McCain 

filed an answer in the suit. On October 14, 2013, Crawford obtained a default 

judgment against Southwest Warren and McCain. The clerk of the court sent 

notice of the default judgment to Southwest Warren and McCain at the addresses at 

which they had previously been served.

On November 19, 2013, Crawford’s attorney sent a letter to Southwest 

Warren’s insurance carrier, notifying the carrier of the default judgment. The 

insurance carrier notified Southwest Warren and McCain. On December 2, 2013 
3

(49 days after the judgment had been signed), Southwest Warren and McCain filed 

a motion to extend the post-judgment deadlines and a motion for new trial. 

Following a hearing, the trial court granted both motions.

Afterwards, Crawford filed a motion to reconsider both of Southwest 

Warren and McCain’s motions. She also filed a request for findings of fact and 

conclusions of law. The trial court requested proposed findings from all parties. 

Southwest Warren and McCain did not respond to Crawford’s motion or to the trial 

court’s request for proposed findings. Following a hearing on Crawford’s motion, 

the trial court granted the motion to reconsider the motion to extend the postjudgment deadlines and the motion for new trial. In the order, the trial court 

“rescind[ed]” its grant of both motions.

Southwest Warren and McCain then filed a “post-answer” motion for new 

trial. The motion contained a revised affidavit from Southwest Warren’s owner, 

Richard Matise, and an affidavit from McCain. In the motion, Southwest Warren 

and McCain claimed that their failure to answer was due to Matise’s mistaken 

belief that Matise had forwarded the information of the lawsuit to Southwest 

Warren’s insurance agent. They also claimed to have a meritorious defense in that 

they alleged that, at the time of the accident, McCain’s car was parked on the side 

of the road and outside the lane of moving traffic. Finally, they asserted they were 
4

willing to reimburse Crawford for her reasonable attorneys’ fees, and that they 

were “ready to proceed forward with the prosecution of this case.”

McCain asserted in his affidavit that, at the time of the accident, “I was 

parked on the shoulder of the road and completely out of the moving lane of traffic 

when plaintiff collided with the vehicle I was driving.” He further asserted that, 

when he received notice of the lawsuit, he turned the documents over to Matise. 

Matise told McCain that Southwest Warren would handle having the answer filed 

for him and for the company. Matise further stated that he would contact the 

insurance agent so that the agent could handle the matter. When he did not hear 

anything more about the lawsuit, McCain presumed the matter had been properly 

resolved. He did not know otherwise until Crawford’s attorney sent a copy of the 

judgment to Southwest Warren’s insurance company.

Matise stated in his affidavit that McCain gave him a copy of the documents 

that McCain had received concerning the lawsuit. Matise acknowledged that it 

was his responsibility to turn over the documents that Southwest Warren and 

McCain had received about the lawsuit to Southwest Warren’s insurance agent. 

Matise testified that he thought he had contacted the insurance agent and sent him 

the relevant documents when, in fact, Matise had not. Based on the mistaken 

belief that he had properly notified the insurance agent, Matise asserted that, when 

he did not hear anything more about the lawsuit, he presumed the matter had 
5

already been properly resolved. He did not know otherwise until Crawford’s 

attorney sent a copy of the judgment to Southwest Warren’s insurance company.

Crawford filed a response to the motion. During the hearing on the motion, 

the trial court acknowledged it was considering the substance of Southwest Warren 

and McCain’s motion. The court expressed some doubt that Southwest Warren 

and McCain had carried its burden under the law and asked for case law to support 

both sides’ positions. In its order, the trial court explicitly stated that it 

“considered [the motion for new trial], the response, the pleadings, and arguments 

of counsel.” Based upon these considerations, the trial court denied the motion.

Motion to Extend Post-Judgment Deadlines

In their second issue, Southwest Warren and McCain argue that the trial 

court erred by rescinding its original grant of their motion to extend the post-trial 

deadlines. We do not need to resolve this because we hold that the order did not 

harm Southwest Warren and McCain.

Rule 306a of the Texas Rules of Civil Procedure requires a clerk of the court 

to immediately give notice to the parties to a suit when a judgment is signed. TEX.

R. CIV. P. 306a(3). Typically, a trial court’s plenary power over a suit—including 

the trial court’s authority to substantively change the judgment—expires following 

30 days after the judgment is signed, unless a plenary-power-extending motion is 

timely filed. See TEX. R. CIV. P. 329b. If a party does not receive the notice of a 
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signed judgment sent by the clerk of the court, however, the party may file a 

motion to reset the relevant deadlines for filing post-trial motions. TEX. R. CIV. P.

306a(4). The party seeking to reset the deadlines for filing post-trial motions must 

establish that it did not acquire (1) notice or (2) actual knowledge of the judgment 

within 20 days of—and not later than 90 days after—the signing of the judgment. 

Id. If the trial court grants the motion, the court’s plenary power is reinstated and 

all relevant post-judgment time periods begin to run as though the date of the 

parties’ notice were the date the judgment had been signed. Id. 

Forty-nine days after the judgment had been signed, Southwest Warren and 

McCain filed their motion to extend the post-trial motion and motion for new trial. 

In their motion to extend the post-trial deadlines, Southwest Warren and McCain 

alleged that they did not know about the judgment until 37 days after the judgment 

had been signed. The trial court granted the motion to extend, designating “the 

new date for the judgment” as the date that Southwest Warren and McCain alleged 

in their motion that they obtained knowledge of the default judgment. The trial 

court simultaneously granted their motion for new trial.

Crawford filed a motion for the trial court to reconsider its granting both 

motions. More than six months after the original judgment had been signed, the 

trial court signed an order “rescinding both Orders . . . granting [Southwest Warren 

and McCain’s] Motion to Extend Post-Judgment Deadlings and . . . Motion for 
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New trial.” Southwest Warren and McCain filed another motion for new trial, 

which the trial court denied.

In Baylor Medical, the Supreme Court of Texas considered whether a trial 

court can reconsider a grant of a motion for new trial. In re Baylor Med. Ctr. at 

Garland, 280 S.W.3d 227, 229–232 (Tex. 2008). In its analysis, the court held that 

a trial court can reconsider a grant of a motion for new trial. Id. at 231 (holding 

trial court has power to set aside new trial order). The reasoning employed by the 

court to reach this conclusion, however, compels us to conclude that, even if a trial 

court has the authority to reconsider a grant of a motion to extend the postjudgment deadlines, such a reconsideration does not have the legal effect of setting 

the post-judgment deadlines back to their original deadlines.

In Baylor Medical, the trial court rendered a take-nothing judgment based on 

the jury’s verdict. Id. at 228. Later, the trial court granted a motion for new trial. 

Id. After the trial court judge was succeeded, the new trial court judge reinstated 

the judgment on the jury verdict. Id. Another motion to reconsider was filed, and 

the trial court once again granted the motion for new trial. Id. at 228–29. At the 

time, the law in Texas provided that a new trial could not be “ungranted.” Id. at 

229. The Supreme Court of Texas determined that this ruling was based on 

language in a rule of civil procedure that had since been modified. Id. at 230.
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The court reasoned that the continuance of this ruling despite the change in 

the language of the rules of civil procedure could have been “to prevent a situation 

where reinstatement of a previous judgment would prevent a party from having 

time to file an appeal.” Id. at 231. The court recognized that, if an order reversing 

the grant of a motion for new trial were considered to reinstate the original 

judgment—effectively rendering the grant of the new trial a nullity—then this 

procedural effect would deprive the party filing the motion the ability to appeal 

either order or any other preserved complaints. See id. 

The court held this was not a concern, however, because the court had 

previously “clarified that ‘a trial judge who modifies a judgment and then

withdraws the modification has modified the judgment twice rather than never.’” 

Id. (quoting Arkoma Basin Exploration Co. v. FMF Assocs. 1990–A, Ltd., 249 

S.W.3d 380, 391 (Tex. 2008)). Accordingly, the order reinstating the original 

judgment does not void or otherwise render the grant of a new trial a nullity. See 

id. It, in effect, creates a new judgment that is identical to the original judgment in 

all ways except for the date of signing. See id.; Gathe v. Gathe, 376 S.W.3d 308, 

315 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding “ungranting” new 

trial does not reinstate original judgment but requires trial court to enter new 

judgment). Accordingly, the appellate deadlines started to run from the order 
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reinstating the original judgment, not from the date of the original judgment. See 

Baylor Med., 280 S.W.3d at 231.

Here, the trial court granted the motion to extend the post-judgment 

deadlines. This had the effect of establishing the new date of the judgment—for 

post-judgment deadline purposes—as the date that Southwest Warren and McCain 

learned of the default judgment. TEX. R. CIV. P. 306a(4). Applying the logic of 

Baylor Medical, the order “rescinding” the grant of the motion to extend did not 

void or otherwise render the extension order a nullity. See Baylor Med., 280 

S.W.3d at 231. Because the extension order still had effect, the post-judgment 

deadlines continued to run from the date set by that order. See id. To the degree 

that the order rescinding the grant of the extension has any legal effect, that effect 

cannot be to set the post-judgment deadlines at an earlier time. See id. 

The prejudicial effect of a contrary ruling can be established by the facts of 

this case. Southwest Warren and McCain filed their motion to extend the postjudgment deadlines 49 days after the judgment, a time within the period allowed to 

file a restricted appeal. See TEX. R. APP. P. 26.1(c) (setting deadline to file 

restricted appeal for within six months of trial court’s judgment). The trial court 

granted the motion a little more than three months after the original judgment had 

been signed. The order “rescinding” the extension, however, was issued more than 

six months after the original judgment had been signed, that is, after the time to file 
10

a restricted appeal had passed. See id. To give the rescission order the legal effect 

of nullifying the extension of the post-judgment deadlines would deprive 

Southwest Warren and McCain of their right to file a restricted appeal.1

 

We hold that the order “rescinding” the extension of the post-judgment 

deadlines did not negatively affect Southwest Warren and McCain’s post-judgment 

deadlines.2

 Additionally, when the trial court granted the motion to extend the 

post-judgment deadlines, it also granted Southwest Warren and McCain’s motion 

for new trial. It subsequently signed an order rescinding the grant of the motion 

for new trial. This order had the effect of creating a new judgment. See Baylor 

Med., 280 S.W.3d at 231; Gathe, 376 S.W.3d at 315. Accordingly, post-judgment 

deadlines were once again reset to run from the date of this last judgment. See 

 1 Southwest Warren and McCain could still file a bill of review. See TEX. R. CIV. P.

329b(f); TEX. CIV. PRAC. & REM. CODE ANN. § 16.051 (Vernon 2015); PNS 

Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). Given that the burden for 

a bill of review is more onerous than for a restricted appeal, however, we must 

conclude that Southwest Warren and McCain would be harmed by being deprived 

of review by restricted appeal. Compare Pike-Grant v. Grant, 447 S.W.3d 884, 

886 (Tex. 2014) (requiring party seeking restricted appeal to establish it did not 

participate in trial proceedings) with Mabon Ltd. v. Afri-Carib Enterprises, Inc., 

369 S.W.3d 809, 812 (Tex. 2012) (requiring party seeking bill of review to 

establish failure to participate in trial proceedings was unmixed with any fault or 

negligence of that party).

2 On appeal, Crawford argues the trial court properly granted her motion to 

reconsider, which contained additional evidence from her response to the motion 

to extend post-judgment deadlines. She does not argue on appeal, however, that 

the trial court erred by granting the original motion. We do not need to determine, 

then, whether the grant of a motion to extend the post-judgment deadlines is 

reviewable under the procedural posture of this case or, if so, whether error exists.
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Baylor Med., 280 S.W.3d at 231. There is no indication, then, that Southwest 

Warren and McCain were harmed by the order rescinding the extension order. 

Accordingly, we overrule Southwest Warren and McCain’s second issue.

Motion for New Trial

In their first issue, Southwest Warren and McCain argue that the trial court 

abused its discretion by denying their request for new trial.

A. Standard of Review

Denial of a motion for new trial is reviewed for abuse of discretion. Waffle 

House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Sozanski v. Plesh, 394 

S.W.3d 601, 604 (Tex. App.—Houston [1st Dist.] 2012, no pet.). A trial court 

abuses its discretion if it acts without reference to any guiding rules or principles or 

fails to correctly analyze or apply the law. Celestine v. Dep’t of Family & 

Protective Servs., 321 S.W.3d 222, 235 (Tex. 2010).

B. Analysis

In Craddock, the Texas Supreme Court set forth three requirements that a 

defendant must satisfy to set aside a default judgment and obtain a new trial: (1) 

the failure to file an answer or appear at a hearing was not intentional or the result 

of conscious indifference, but was a mistake or accident; (2) a meritorious defense; 

and (3) a new trial will not result in delay or prejudice to the plaintiff. Craddock v. 

Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).
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As an initial matter, there is some question as to which motion and 

accompanying evidence we are considering in reviewing the trial court’s ruling on 

whether Southwest Warren and McCain satisfied the Craddock elements. In all, 

three motions addressed whether Southwest Warren and McCain satisfied their 

burden under Craddock. After the trial court granted Crawford’s motion to 

reconsider, Southwest Warren and McCain filed their final motion for new trial. 

The evidence they presented with this motion was more detailed than what they 

presented with the first motion. There is at least some question as to whether the 

trial court was obligated to entertain for a third time whether Southwest Warren 

and McCain satisfied the Craddock elements. 

We do not need to resolve this question, however. Even assuming the trial 

court was not obligated to consider the substance of Southwest Warren and 

McCain’s third opportunity to show it satisfied the Craddock elements, the record 

shows that the trial court did consider the substantive arguments. At the hearing, 

the trial court asked questions about the parties’ substantive proof and requested 

submissions of case law on whether Southwest Warren and McCain had satisfied 

the first element. Additionally, in its order denying the final motion for new trial, 

the trial court explicitly stated that it “considered [the motion for new trial], the 

response, the pleadings, and arguments of counsel.” See Stephens v. Dolcefino, 

126 S.W.3d 120, 133 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 
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S.W.3d 741 (Tex. 2005) (holding trial court can consider late-filed evidence, but 

record must affirmatively show evidence considered by trial court); Fed. Home 

Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 236–37 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.) (holding when record shows trial court considered motion and 

attached evidence, appellate courts can consider them as well on review). Because 

the trial court undertook this substantive determination, it is part of our review on 

appeal. 

The first Craddock element is the failure to file an answer or appear at a 

hearing was not intentional or the result of conscious indifference, but was a 

mistake or accident. 133 S.W.2d at 126. “Where factual allegations in a movant’s 

affidavits are uncontroverted, it is sufficient that the motion for new trial and 

accompanying affidavits set forth facts which, if true, would satisfy the Craddock

test.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992). While 

Crawford challenges whether the evidence presented in Southwest Warren and 

McCain’s final motion for new trial satisfy the first Crawford element, nothing in 

her evidence controverts Southwest Warren and McCain’s evidence. Accordingly, 

if the evidence is sufficient to establish the first element, we must take it as true. 

See id. 

McCain asserted in his affidavit that, when he received notice of the lawsuit, 

he turned the documents over to Matise. Matise told McCain that Southwest 
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Warren would handle having the answer filed for him and for the company. 

Matise further stated that he would contact the insurance agent so the agent could 

handle the matter. When he did not hear anything more about the lawsuit, he 

presumed the matter had been properly resolved. He did not know otherwise until 

Crawford’s attorney sent a copy of the judgment to Southwest Warren’s insurance 

company.

Matise asserted in his affidavit that McCain gave him a copy of the 

documents that McCain had received concerning the lawsuit. Matise 

acknowledged that it was his responsibility to turn the documents that Southwest 

Warren and McCain had received about the lawsuit over to Southwest Warren’s 

insurance agent. Matise testified that he thought he had contacted the insurance 

agent and sent him the relevant documents when, in fact, Matise had not. Based on 

the mistaken belief that he had properly notified the insurance agent, Matise 

asserted that, when he did not hear anything more about the lawsuit, he presumed 

the matter had already been properly resolved. He did not know otherwise until 

Crawford’s attorney sent a copy of the judgment to Southwest Warren’s insurance 

company.

The evidence in both of these affidavits establish that the failure to answer 

was not intentional or the result of conscious indifference. McCain followed 

company procedure. Matise thought he followed company procedure and notified 
15

the insurance agent, but mistakenly failed to do so. We hold this is sufficient to 

satisfy the first element of Craddock. See Republic Bankers Life Ins. Co. v. Dixon, 

469 S.W.2d 646, 647 (Tex. Civ. App.—Tyler 1971, no writ) (holding attorney 

forgetting to file answer is sufficient to satisfy Craddock); see also Dir., State 

Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994)

(citing Republic Bankers as example of no conscious indifference).

Crawford argues that the evidence is conclusory because Matise did not 

testify about when he forgot to notify the insurance agent. Matise testified, 

however, that it was company policy to turn over documents about a lawsuit to the 

insurance agent “so that appropriate action can be taken to defend the lawsuit.” 

This could only happen if Matise turned over the documents within the time to file 

the answer. By asserting that he thought he had done what was required of him 

under company policy, it follows that Matise thought he had done what was 

required of him in the time for the insurance company to hire an attorney to file an 

answer. There is no other evidence in the record suggesting that Matise 

intentionally waited until it was time to file a lawsuit and then accidentally forgot 

to send the documents to the insurance agent after the proper time to file an answer 

had expired.

Crawford also argues that Holt Atherton establishes that Matise’s affidavit 

was insufficient to satisfy Craddock’s first prong. In Holt Atherton, the court held 
16

that, “[w]hen a defendant relies on his agent to file an answer, he must demonstrate 

that both he and his agent were free of conscious indifference.” 835 S.W.2d at 83. 

That requirement has been satisfied here. McCain properly turned over the 

documents to Matise, and Matise asserted that he thought he had notified his 

insurance agent, but never actually did. There could not have been conscious 

indifference on the part of the insurance agent who was not actually informed of 

the suit until after judgment was entered.3

The second Craddock element is a meritorious defense. 133 S.W.2d at 126. 

Unlike the first element, this is not a matter that can be controverted by the 

opposing party. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). Instead, as long 

as the party asserts a defense that could prevent the plaintiff’s recovery and 

presents prima facie evidence of that defense, the second Craddock element is 

satisfied. Id. 

Here, Southwest Warren and McCain alleged in their final motion for new 

trial that the vehicle McCain had been driving at the time of the incident had been 

parked on the side of the road, outside the lane of moving traffic. Accordingly, by 

 3 Crawford points out in her briefs that she served Southwest Warren’s documents 

on an agent of service, suggesting there was no evidence about that agent’s 

actions. There is no indication in the record, however, that Southwest Warren 

relied on that agent to file an answer. See Holt Atherton Indus., Inc. v. Heine, 835 

S.W.2d 80, 83 (Tex. 1992). (“When a defendant relies on his agent to file an 

answer, he must demonstrate that both he and his agent were free of conscious 

indifference.” (emphasis added)).
17

this defense, they claim that any fault in the accident must have been Crawford’s. 

McCain asserted the same in his affidavit. Specifically, he asserted, “I was parked 

on the shoulder of the road and completely out of the moving lane of traffic when 

plaintiff collided with the vehicle I was driving.” We hold this is sufficient to 

establish a meritorious defense.

The third Craddock element is a new trial will not result in delay or 

prejudice to the plaintiff. 133 S.W.2d at 126. “[O]nce 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.” Cliff v. 

Huggins, 724 S.W.2d 778, 779 (Tex. 1987). Such a burden is carried by the 

plaintiff by showing the loss of witnesses or other valuable evidence. Evans, 889 

S.W.2d at 270.

Southwest Warren and McCain asserted that the grant of the new trial would 

not cause unreasonable delay, thereby shifting the burden to Crawford to disprove 

this assertion. See Cliff, 724 S.W.2d at 779. Crawford asserted in her response to 

the final motion for new trial and accompanying affidavit that (1) she had not been 

able to find out from Southwest Warren and McCain whether they knew of any 

witnesses from the accident, (2) it would be “difficult or impossible” for her to 

locate witnesses that long after the accident, (3) it would be “difficult or 

impossible” to examine the condition of her car, (4) her own memory of the of the 
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accident has diminished because the experience was traumatic and “she did not 

want to remember the frightening collision again,” and (5) she would be burdened 

by the expense of further attorneys’ fees.

For the first four assertions, even taking all of these assertions as true, 

however, Crawford has not carried her burden. Once the burden is on the plaintiff 

to show undue delay or prejudice, she carries this burden by showing the loss of 

witnesses or other valuable evidence. Evans, 889 S.W.2d at 270. None of the 

assertions presented by Crawford show an actual loss. Even if the trial court 

accepted as true that it would be impossible to locate witnesses or examine the 

condition of her car, to show an actual loss, Crawford first needed to establish that 

the evidence was previously available but then lost due to the delay caused by 

Southwest Warren and McCain’s failure to answer. See id. That is, Crawford 

would need to show that she had evidence available to her at the time she filed suit 

but that the evidence has been lost in the time since she filed the motion for new 

trial. See id.; see also Wiseman v. Levinthal, 821 S.W.2d 439, 441 (Tex. App.—

Houston [1st Dist.] 1991, no writ) (“Trial courts generally should rule in favor of 

giving a defendant his day in court when a motion for new trial is filed after a 

default judgment.”). 

For Crawford’s assertion that the new trial would cause her financial 

hardship by having to pay even more attorneys’ fees, Southwest Warren and 
19

McCain have offered to reimburse Crawford for the attorneys’ fees she incurred in 

obtaining the default judgment. We hold this is sufficient to rebut Crawford’s 

claim of financial hardship. See Cliff, 724 S.W.2d at 779 (holding, though not 

precondition to obtaining new trial, offer to reimburse fees incurred in obtaining 

default judgment is important consideration for third element of Craddock test).

We hold that Southwest Warren and McCain satisfied their burden on this 

third element and that Crawford failed to carry her burden of establishing undue 

delay or prejudice. We sustain Southwest Warren and McCain’s first issue.4

Conclusion

We reverse the trial court’s judgment and remand the case for a new trial

and for a hearing on Crawford’s reasonable attorneys’ fees incurred in seeking the 

default judgment to be assessed against Southwest Warren and McCain.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Huddle.

 4 Because we sustain this issue, we do not need to reach Southwest Warren and 

McCain’s remaining issues, which cannot provide them with greater relief. See

TEX. R. APP. P. 47.1.