Reversed and Remanded, and Opinion Filed June 7, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-23-00282-CV TIBURCIO CARILLO AND MARI SOL 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 Carr illo’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 reve rse and remand the case for a new trial.–2– BACKGROUND Appellee Juan Zaragoza filed suit agai nst Carrillo in 2019. Zaragoza claimed in 2015 he entered into a verbal agreemen t to rent a piece of land and the mobile home thereon to Carrillo, but Carrillo fa iled to pay rent on numerous occasions. Zaragoza brought claims for breach of contract and conversion and sought possession of the property, damages, a nd attorney’s fees. Carrillo answered, generally denying Zaragoza’s cl aims. Carrillo also asserted counterclaims for breach of contract and fraud and sought specific pe rformance 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 seve ral occasions from 2019 onward, with delays due in part to the COVID-19 pandemic. Around July 26, 2022, Carrillo’s attorney Craig Hubble recei ved 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 setti ng 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 aw arding Zaragoza possession of the property and finding Carrillo in breach of the c ontract. The court also awarded Zaragoza $53,800.00 in damages, attorney’s fees, pr e- and post-judgment interest, and costs.–3– 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 th e motion, Carrillo attached affidavits from Hubble, Hubble’s office assi stant, Hubble’s legal assistant, and codefendant Quintanilla. Zara goza 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 offere d 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 th e 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)).–4– However, a trial court abuses its discre tion by not granting a new trial when the elements of the Craddock 1 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 grante d when the defaulting party establishes: (1) the failure to appear was not intentiona l or the result of conscious indifference, but was the result of an accident or mist ake; (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, c ourts have dispensed with the second and third elemen ts 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.–5– S.W.2d 721, 723 (Tex. 1988) (dispensing w ith 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, 2 022 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 app ear was not intentional or the result of conscious indifference but was instead the re sult 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 granti ng 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 subj ect 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 consci ously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff.–6– 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 sli ght 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.—D allas 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 a ppear 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 th e 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 consci ous 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.–7– III. Application of the Law to the Facts In the motion for new trial, Carrillo assert ed the failure to appear for trial on December 8, 2022 was not intentional or th e result of conscious indifference but due to an accident or mistake. Carrillo assertedhe did not receive notice of the December 8th trial setting. In support of the motion, Carrillo attached affi davits from (1) Craig Hubble (Carrillo’s attorney); (2) Mary Gr iggs (Hubble’s office assistant during the relevant timeframe); (3) Laura West (Hubble’s legal assistant and office manager); and (4) Marisol Quinta nilla (co-defendant). In his affidavit, Hubble declared he was the attorney for Carrillo since the case was filed in 2019 and had receiv ed several trial date noti ces 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, i ndicating the parties we re not required to appear for the trial set the following week and that further notice of a new setting would be forthcoming. Hubble then st ates he did not receive any other communication from the court or opposing counsel that tr ial was set for December 8, 2022. Hubble also declared that around Ju ly 15, 2022, he relocated his office from Arlington to his home in Fort Worth. H ubble 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 o ffice assistant, Mary Griggs. Hubble stated he never received any notice from the co urt the case was set for December 8th. Finally, Hubble declared the failure to a ppear for trial on December 8, 2022 was not–8– intentional or the result of conscious in difference, but due to some unknown mistake or accident in not receiving notice of the setting. In her affidavit, Mary Griggs declar ed 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 ho me, Hubble continued to receive mail at the Arlington office. Gri ggs retained this mail at her desk, and Hubble would occasionally pick it up. Ever y 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 wa s 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 employm ent 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 “unrep resented,” despite that West routinely set new cases to reflect c lients 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 resu lt of conscious indifference, but due to an–9– accident or mistake. West declared this may have b een 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 fo r any trial of which he had notice. In her affidavit, Quintanilla declared sh e 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 Decem ber 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 gran ted a default judgment for Huggins after Cliff and his attorney faile d to appear for trial. Id. at 778. In support of his motion for new trial, Cliff submitted an affidavit and offered tes timony at the hearing, stating he never received notice of the trial se tting 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 wa s unaware of it until after the trial date. Id. This evidence was uncontroverted. Id. The supreme court concluded the record supported Cliff’s failur e 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 tr ue, would negate inten tional or consciously indifferent conduct.” Id. (citing Strackbein , 671 S.W.2d at 38).–10– 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 onl y 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, ta king them as true—as we must in the absence of controverting evid ence—Carrillo’s motion and affidavits set forth facts which would negate intenti onal 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, th e court believed the mistakes were not “reasonable” and expressed concern whether Hubble exer cised diligence to check on the case and ensure no trial had been set. However, we have previously declined to impose a due diligence re quirement 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 satis fied its burden of proving its failure to file timely answer was because of accident or mist ake and not intentional or the result of–11– conscious indifference; uncontroverted f acts in company’s affidavit indicated citation was lost in intero ffice mail and company’s pr esident and chief operating officer did not know suit had been filed un til they discovery the default judgment) see also State v. Sledge , 982 S.W.2d 911, 916 (Tex. A pp.—Houston [14th Dist.] 1998, pet. denied) (unc ontroverted explanation establis hed 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 belie ve 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 defenda nt 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 wa s due to a mistake or accide nt, 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 receiv ed notice of trial setting). Accordingly, we conclude Carrillo esta blished the failure to appear was not intentional or the result of conscious indiff erence and instead was based on a lack of notice due to an accident or mistake. Under these circum stances, the trial court had no discretion to deny the motion for new trial. Evans , 889 S.W.2d at 268; Cliff , 724–12– 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 consci ous 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. Acco rdingly, we reverse the trial court’s judgment and remand for a new trial.

230282F.P05 /Robbie Partida-Kipness / ROBBIE PARTIDA-KIPNESS JUSTICE–13– 

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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 TIBURCI O CARILLO AND MARISOL QUINTANILLA recover their costs of this appeal from appellee JUAN ZARAGOZA.
Judgment entered this 7th day of June, 2024.