Reversed and Remanded, and Opinion Filed June 7, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00282-CV 

TIBURCIO CARILLO AND MARISOL QUINTANILLA, Appellants 

V. 

JUAN ZARAGOZA, Appellee 

On Appeal from the County Court at Law No. 2 

Dallas County, Texas 

Trial Court Cause No. CC-19-02017-B 

MEMORANDUM OPINION 

Before Justices Partida-Kipness, Nowell, and Smith 

Opinion by Justice Partida-Kipness 

The trial court granted a post-answer default judgment against Appellants 

Tiburcio Carrillo and Marisol Quintanilla (together, Carrillo) after they failed to 

appear at trial. The trial court denied Carrillo’s motion for new trial. In a single issue 

on appeal, Carrillo asserts the trial court abused its discretion by denying the motion 

for new trial because Carrillo did not receive notice of the trial setting. Based on our 

review of the record, we agree. We reverse and remand the case for a new trial. 
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BACKGROUND 

Appellee Juan Zaragoza filed suit against Carrillo in 2019. Zaragoza claimed 

in 2015 he entered into a verbal agreement to rent a piece of land and the mobile 

home thereon to Carrillo, but Carrillo failed to pay rent on numerous occasions. 

Zaragoza brought claims for breach of contract and conversion and sought 

possession of the property, damages, and attorney’s fees. Carrillo answered, 

generally denying Zaragoza’s claims. Carrillo also asserted counterclaims for breach 

of contract and fraud and sought specific performance of the contract, damages, and 

attorney’s fees. Carrillo contended the 2015 agreement was for the purchase of the 

property rather than a rental agreement. 

The case was set for a jury trial and rescheduled on several occasions from 

2019 onward, with delays due in part to the COVID-19 pandemic. Around July 26, 

2022, Carrillo’s attorney Craig Hubble received an email from the court coordinator 

informing the parties they did not need to appear for a trial setting the following 

week and notice regarding a new trial date would be forthcoming. On September 26, 

2022, the court sent a notice setting trial for December 8, 2022. 

However, Carrillo and attorney Hubble did not appear at the December 8th 

trial. Zaragoza and his attorney appeared and presented evidence. On December 21, 

2012, the trial court entered judgment awarding Zaragoza possession of the property 

and finding Carrillo in breach of the contract. The court also awarded Zaragoza 

$53,800.00 in damages, attorney’s fees, pre- and post-judgment interest, and costs. 
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The court denied Carrillo’s counterclaims. The clerk issued a writ of possession, 

which a constable executed on January 19, 2023 by delivering the property to 

Zaragoza. 

Carrillo—through Hubble—became aware of the December 21st judgment in 

January 2023 and timely filed a motion for new trial. In the motion, Carrillo asserted 

he did not receive notice of the December 8th trial setting and therefore Carrillo’s 

failure to appear was not intentional or the result of conscious indifference, but 

instead due to a mistake or accident. In support of the motion, Carrillo attached 

affidavits from Hubble, Hubble’s office assistant, Hubble’s legal assistant, and codefendant Quintanilla. Zaragoza filed a response but did not submit any evidence to 

controvert Carrillo’s motion or affidavits. 

The trial court held a hearing on the motion. The court heard argument, but 

no testimony or other evidence was offered by the parties. The trial court 

subsequently denied Carrillo’s motion for new trial. 

STANDARD OF REVIEW 

Generally, 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. Dir., State Emps. Workers' Comp. Div. v. Evans, 889 S.W.2d 

266, 268 (Tex. 1994) (citing Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987)). 
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However, a trial court abuses its discretion by not granting a new trial when the 

elements of the Craddock1

 test are met. Evans, 889 S.W.2d at 268. 

ANALYSIS 

In a single issue, Carrillo asserts the trial court abused its discretion by 

denying the motion for new trial which met the Craddock requirements. After 

reviewing the record, we agree.2

 

I. Post-answer Default Judgments 

A post-answer default judgment occurs when a defendant who has answered 

fails to appear for trial. Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d 922, 925 

(Tex. 2009). The Craddock analysis applies to post-answer default judgments. Id. at 

926 (citing Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966)). A default judgment 

should be set aside, and a new trial granted when the defaulting party establishes: 

(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. Id. at 925 (citing Craddock, 133 S.W.2d at 126). 

When the first Craddock element is established by proof the defaulted party 

did not have actual or constructive notice of a trial setting, courts have dispensed 

with the second and third elements for constitutional reasons. Lopez v. Lopez, 757 

1

 Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. [Comm’n Op.] 1939). 

2

 Zaragoza did not file a brief in this Court. 
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S.W.2d 721, 723 (Tex. 1988) (dispensing with meritorious defense requirement) 

(citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S. Ct. 896, 99 L. Ed. 2d 

75 (1988)); Patel v. Biz Friend, LLC, No. 05-20-00541-CV, 2022 WL 3210142, at 

*2 (Tex. App.—Dallas Aug. 9, 2022, no pet.) (mem. op.) (citing Mabon Ltd. v. AfriCarib Enter., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam)); see also Mosser 

v. Plano Three Venture, 893 S.W.2d 8, 12 (Tex. App.—Dallas 1994, no writ) (a 

party who, through no fault of its own, does not receive notice of a hearing cannot 

be accused of intentional failure to appear or conscious indifference, or have its due 

process rights overcome by considerations of inconvenience or injury to the other 

party). 

Here, Carrillo asserted his failure to appear was not intentional or the result of 

conscious indifference but was instead the result of a mistake or accident because he 

did not receive notice of the trial setting. If true, Carrillo was not required to set up 

a meritorious defense or show that granting a new trial would occasion no delay or 

otherwise injure Zaragoza. Accordingly, we need only analyze whether Carrillo’s 

failure to appear was a mistake or accident or instead intentional or the result of 

conscious indifference, a subject to which we now turn. 

II. Accident/Mistake or Intentional Conduct/Conscious Indifference 

A defendant satisfies its burden as to the first Craddock element when its 

factual assertions, if true, negate intentional or consciously indifferent conduct by 

the defendant and the factual assertions are not controverted by the plaintiff. 
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Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012) (citing In re R.R., 209 

S.W.3d 112, 115 (Tex. 2006) (per curiam)). Consciously indifferent conduct occurs 

when “the defendant knew it was sued but did not care.” Id. (quoting Fidelity & 

Guaranty Insurance Co. v. Drewery Construction Co., 186 S.W.3d 571, 576 (Tex. 

2006)). Some excuse, even a slight or not very good excuse, for failing to file an 

answer or appear is sufficient to set aside a default judgment. Id.; Herrera v. 

Wembley Inv. Co., No. 05-96-00446-CV, 2000 WL 1100872, at *4 (Tex. App.—

Dallas Aug. 8, 2000, pet. denied) (not designated for publication) (citing Ferguson 

& Co. v. Roll, 776 S.W.2d 692, 695 (Tex. App.—Dallas 1989, no writ)). Mere 

negligence will not preclude setting aside a default judgment. Ivy, 407 S.W.2d at 

213. 

“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.” 

Evans, 889 S.W.2d at 269 (quoting Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 

1984)). In determining if the defendant’s factual assertions are controverted, the 

court looks to all the evidence in the record. Id. 

In the absence of controverting evidence that the failure to appear was due to 

its intentional act or conscious indifference, the movant’s affidavits should, for the 

purpose of establishing lack of conscious indifference, be taken as true. Id. If the 

motion and affidavits meet the requirements of Craddock, a new trial should be 

granted. Id at 268. 
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III. Application of the Law to the Facts 

In the motion for new trial, Carrillo asserted the failure to appear for trial on 

December 8, 2022 was not intentional or the result of conscious indifference but due 

to an accident or mistake. Carrillo asserted he did not receive notice of the December 

8th trial setting. In support of the motion, Carrillo attached affidavits from (1) Craig 

Hubble (Carrillo’s attorney); (2) Mary Griggs (Hubble’s office assistant during the 

relevant timeframe); (3) Laura West (Hubble’s legal assistant and office manager); 

and (4) Marisol Quintanilla (co-defendant). 

In his affidavit, Hubble declared he was the attorney for Carrillo since the case 

was filed in 2019 and had received several trial date notices throughout the history 

of the case leading up to July 26, 2022. Hubble declared he received an email on 

July 26, 2022 from the court coordinator, indicating the parties were not required to 

appear for the trial set the following week and that further notice of a new setting 

would be forthcoming. Hubble then states he did not receive any other 

communication from the court or opposing counsel that trial was set for December 

8, 2022. Hubble also declared that around July 15, 2022, he relocated his office from 

Arlington to his home in Fort Worth. Hubble indicated that during this time and 

after, he continued to receive mail at the Arlington office and would pick it up 

routinely or have it sent to him by the office assistant, Mary Griggs. Hubble stated 

he never received any notice from the court the case was set for December 8th. 

Finally, Hubble declared the failure to appear for trial on December 8, 2022 was not 
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intentional or the result of conscious indifference, but due to some unknown mistake 

or accident in not receiving notice of the setting. 

In her affidavit, Mary Griggs declared she was a receptionist and general 

office assistant at the Arlington office for two attorneys, including Hubble, from 

2009 until around August 1, 2022. Her duties included distributing incoming mail to 

Hubble, and that after Hubble relocated to his Fort Worth home, Hubble continued 

to receive mail at the Arlington office. Griggs retained this mail at her desk, and 

Hubble would occasionally pick it up. Every week or two, Griggs would mail 

Hubble any mail items he had not picked up. Giggs stated she never threw away or 

otherwise disposed of any mail addressed to Hubble. 

By affidavit, Laura West stated she was the full-time legal assistant and office 

manager for Hubble from August 1998 until May 2022. West declared she 

electronically filed the original answer and counterclaims for Carrillo. She stated 

that up until the date she ceased employment for Hubble, the office had received 

notice of all deadlines and settings from the court, including two prior trial settings. 

West declared she never saw any notice the case was set for trial December 8, 2022. 

West further stated she recently reviewed the court electronic filing system and 

noticed the defendants were shown as “unrepresented,” despite that West routinely 

set new cases to reflect clients represented by Hubble. West did not know why it was 

not done in this case, or if it was, how it was changed. West further declared any 

such failure was not intentional or the result of conscious indifference, but due to an 
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accident or mistake. West declared this may have been the reason Hubble did not 

receive electronic notice of the trial setting. Finally, West stated in the twenty-plus 

years she worked for Hubble, he never failed to appear for any trial of which he had 

notice. 

In her affidavit, Quintanilla declared she had received several trial date notices 

from Hubble throughout the history of the case, up until July 26, 2022. Quintanilla 

stated she had no knowledge of the December 8, 2022 trial setting until after the 

judgment was signed and a writ of possession issued. 

The circumstances of this case resemble those in Cliff v. Huggins, 724 S.W.2d 

778 (Tex. 1987). There, the trial court granted a default judgment for Huggins after 

Cliff and his attorney failed to appear for trial. Id. at 778. In support of his motion 

for new trial, Cliff submitted an affidavit and offered testimony at the hearing, stating 

he never received notice of the trial setting and had no awareness thereof until he 

received notice of the default judgment. Id. at 779. Cliff’s attorney also testified 

unequivocally he never received notice of the trial setting and was unaware of it until 

after the trial date. Id. This evidence was uncontroverted. Id. The supreme court 

concluded the record supported Cliff’s failure to appear at trial was not intentional 

or the result of conscious indifference: “[I]t is sufficient that the movant’s motion 

and affidavits set forth facts which, if true, would negate intentional or consciously 

indifferent conduct.” Id. (citing Strackbein, 671 S.W.2d at 38). 
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Similarly, the record here supports that Carrillo’s failure to appear at trial was 

not intentional or the result of conscious indifference. Carrillo submitted affidavits 

stating defendants and counsel never received notice of the December 8, 2022 trial 

setting. Zaragoza did not submit any evidence to controvert the factual statements in 

Carrillo’s affidavits. 

Carrillo’s affidavits constitute the only evidence before the trial court and 

there is no reasonable interpretation of those affidavits which would constitute 

evidence Carrillo’s failure to appear was a result of an intentional act or conscious 

indifference. See Strackbein, 671 S.W.2d at 39. Instead, taking them as true—as we 

must in the absence of controverting evidence—Carrillo’s motion and affidavits set 

forth facts which would negate intentional or consciously indifferent conduct. Cliff, 

724 S.W.2d at 778-79; Evans, 889 S.W.2d at 268. 

At the hearing on the new trial motion, the trial court indicated Hubble’s 

failures to receive notice via regular mail or electronic mail were “mistakes” and not 

conscious indifference. Nonetheless, the court believed the mistakes were not 

“reasonable” and expressed concern whether Hubble exercised diligence to check 

on the case and ensure no trial had been set. However, we have previously declined 

to impose a due diligence requirement because it is little different from a negligence 

standard, which is not the proper test under Craddock. See Ferguson & Co., 776 

S.W.2d at 697-98 (defendant satisfied its burden of proving its failure to file timely 

answer was because of accident or mistake and not intentional or the result of 
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conscious indifference; uncontroverted facts in company’s affidavit indicated 

citation was lost in interoffice mail and company’s president and chief operating 

officer did not know suit had been filed until they discovery the default judgment) 

see also State v. Sledge, 982 S.W.2d 911, 916 (Tex. App.—Houston [14th Dist.] 

1998, pet. denied) (uncontroverted explanation established state’s failure to appear 

in condemnation case was not intentional or result of “conscious indifference,” 

where assistant attorney general stated he believed the case had been dismissed, and 

he had misinterpreted court’s notice to believe he did not need to appear: “[W]hile 

the State’s failure to make any inquiries regarding the status of the case may 

constitute negligence, a defendant is not required to show that he and/or his agent 

were free of negligence.”); J.H. Walker Trucking v. Allen Lund Co., 832 S.W.2d 

454, 455-56 (Tex. App.—Houston [1st Dist.] 1992, no writ) (defendant showed his 

failure to appear at trial was due to a mistake or accident, where evidence established 

defense counsel moved offices during pendency of case, instructed his legal assistant 

to notify court and clerk of new address for pending cases, but where address change 

apparently did not reach court or was not properly recorded by court, and defendant’s 

counsel stated he never received notice of trial setting). 

Accordingly, we conclude Carrillo established the failure to appear was not 

intentional or the result of conscious indifference and instead was based on a lack of 

notice due to an accident or mistake. Under these circumstances, the trial court had 

no discretion to deny the motion for new trial. Evans, 889 S.W.2d at 268; Cliff, 724 
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S.W.2d at 778-79; Ferguson & Co., 776 S.W.2d at 699. We sustain Carrillo’s sole 

issue. 

CONCLUSION 

The uncontroverted evidence established Carrillo’s failure to appear at trial 

was not intentional or the result of conscious indifference, but instead was based on 

a lack of notice due to an accident or mistake. Under Craddock and its progeny, 

Carrillo established the right to a new trial. The trial court abused its discretion in 

denying Carrillo’s motion for new trial. Accordingly, we reverse the trial court’s 

judgment and remand for a new trial. 

230282F.P05 

 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

TIBURCIO CARILLO AND 

MARISOL QUINTANILLA, 

Appellants 

No. 05-23-00282-CV V. 

JUAN ZARAGOZA, Appellee 

 On Appeal from the County Court at 

Law No. 2, Dallas County, Texas 

Trial Court Cause No. CC-19-02017-

B. 

Opinion delivered by Justice PartidaKipness. Justices Nowell and Smith 

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 appellants TIBURCIO CARILLO AND MARISOL 

QUINTANILLA recover their costs of this appeal from appellee JUAN 

ZARAGOZA. 

Judgment entered this 7th day of June, 2024.