COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SEDONA PACIFIC HOUSING 

PARTNERSHIP D/B/A SEDONA

PACIFIC PROPERTIES AND

GONZALEZ FINANCIAL HOLDINGS,

INC.,

 Appellants,

v.

ALFONSO VENTURA AND

MARIA VENTURA,

 Appellees.

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No. 08-11-00208-CV

Appeal from

County Court at Law No. 1

of Tarrant County, Texas

(TC # 09-76115-1 )

O P I N I O N

Sedona Pacific Housing Partnership d/b/a Sedona Pacific Properties and Gonzalez 

Financial Holdings, Inc. appeal from a judgment entered in favor of Alfonso Ventura and Maria 

Ventura. For the reasons that follow, we affirm.

FACTUAL SUMMARY

On September 30, 2009, Alfonso and Maria Ventura filed suit against Appellants alleging 

wrongful foreclosure on the Venturas’ homestead. The suit alleged that the Venturas executed a 

tax lien promissory note payable to Gonzalez Financial Holdings, Inc. in the amount of 

$9,704.52. Tamir Enterprises, Ltd. held the note and GFH Servicing, Ltd. serviced it. The 
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Venturas’ mortgage company tendered a check in the amount of $8,041.25 to pay off the tax lien 

note and avoid foreclosure, but the loan servicer, GFH Servicing Ltd., refused to accept the 

payment because it was not received until after the date of the foreclosure.1 The property was 

sold at a non-judicial foreclosure on July 7, 2009 to Sedona Pacific Housing Partnership for 

$75,000. The Venturas alleged in their suit that the property had a value of $206,300 and 

Appellants had failed to properly account for the surplus money received or convey to the 

Venturas their legal share of the proceeds. The Venturas sought to enjoin a wrongful 

foreclosure, alleged that Appellants had breached the tax loan contract, and they also sought 

declaratory relief and attorney’s fees. The trial court issued a temporary restraining order 

prohibiting Appellants from proceeding with the forcible detainer. 

Appellants were served with citation and the TRO on October 7, 2009, but they did not 

file an answer. The parties, through their attorneys, entered into a Rule 11 agreement to continue 

the hearing on the temporary injunction and to suspend the eviction proceedings for sixty days 

while the parties attempted to negotiate a settlement. The dispute was not settled and the parties 

engaged in discovery. The trial court set the case for trial on March 21, 2011. The Venturas 

amended their pleadings prior to trial raising additional causes of action: fraud by nondisclosure, usury, and failure to account. They also requested exemplary damages. The 

Venturas appeared with their attorney for trial, but Appellants failed to appear. The judgment 

recites that the trial court, after having read the pleadings and papers on file, and after hearing the 

evidence and argument of counsel, found that the allegations in the Venturas’ pleadings had been 

admitted and Appellants were indebted to the Venturas in the amount of $66,958 plus postjudgment interest. The court also awarded to the Venturas attorney’s fees in the amount of 

 

1

 An exhibit attached to the petition reflects that GFH Servicing informed the mortgage company that the payoff 

amount was good only until July 6, 2009 and the foreclosure occurred on July 7, 2009. The payoff was not received 

until July 9, 2009.
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$6,500 for trial plus conditional awards in the event Appellants filed a motion for new trial or 

appealed to the court of appeals and the Texas Supreme Court. 

Appellants filed a motion for new trial on equitable grounds and alleged that the

procedural default was not intentional or the result of conscious indifference but was due to 

accident or mistake. They also alleged a meritorious defense to the Venturas’ claims. Counsel 

for Appellants stated in an affidavit that he did not file an answer on behalf of Appellants due to 

accident or mistake. His affidavit did not address why Appellants failed to appear for trial. The 

trial court denied the motion after a hearing and this appeal follows. 

MOTION FOR NEW TRIAL

In their first issue, Appellants complain that the trial court abused its discretion by 

denying their motion for new trial made under Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 

388, 133 S.W.2d 124, 126 (1939). Before addressing the issue, we must consider the Venturas’ 

claim that Craddock is inapplicable because the trial court did not enter a default judgment and

instead entered a judgment in their favor following a trial on the merits. We understand 

Appellants to argue that Craddock applies because the trial court entered a no-answer default 

judgment. We therefore must resolve precisely what type of judgment the trial court entered.

We will first consider whether it is a judgment upon trial. Counsel for the Venturas, John 

Gamboa, stated in his affidavit that the case was set on the court’s jury trial docket with proper 

notices to all parties. He also stated: “This was not a default hearing but a properly called jury 

trial . . . .” At the hearing, Gamboa stated several times, including once under oath, that the court 

had conducted a trial on the merits, not a default judgment hearing, and he recounted the 

evidence admitted at the trial. The appellate record does not include the court reporter’s 

transcript of the trial. The Venturas’ assertion that the trial court did not enter a default judgment 
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is contradicted by the following recitations in the judgment: 

The Defendants, although having been duly and legally cited to appear and 

answer, failed to appear and answer, and wholly made default. Citation was 

served according to law and returned to the clerk where it remained on file for the 

time required by law. The Court has read the pleadings and the papers on file and 

after hearing the evidence and argument of counsel, is of the opinion that the 

allegations in Plaintiffs’ Petition have been admitted and Defendants are indebted 

to Plaintiff in the sum of $66,958.00. 

Counsel for the Venturas approved the judgment as to both form and content. The recitations in 

the judgment indicate that the trial court rendered a default judgment rather than a judgment 

upon trial. 

Under the presumption of regularity of judgments, we are required to presume recitations 

in the final judgment are correct absent any evidence to the contrary. Vernon v. Perrien, 390

S.W.3d 47, 58 (Tex.App.--El Paso 2012, pet. denied); Southern Insurance Company v. Brewster, 

249 S.W.3d 6, 12-14 (Tex.App.--Houston [1st Dist.] 2007, pet. denied). Given that the appellate 

record does not include a reporter’s record, we must also presume that the evidence supports the 

recitations regarding entry of a default judgment. See Sandoval v. Commission for Lawyer 

Discipline, 25 S.W.3d 720, 722 (Tex.App.--Houston [14th Dist.] 2000, pet. denied). Based on 

the record before us and applying the required presumptions to the judgment, we conclude that 

the trial court entered a default judgment.

There are several types of default judgments. They generally fit into pre- or post-answer 

default judgments, but other variations exist which do not fit neatly into either category. 

Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 184 (Tex. 2012).2 In Stoner v. 

Thompson, 578 S.W.2d 679, 682 (Tex. 1979), the Supreme Court discussed three types of default 

judgments in contrast to “a judgment upon trial:” (1) the no-answer default judgment; (2) the 

 

2

 In Paradigm Oil, the Supreme Court addressed another type of default judgment which did not fit in the pre- or 

post-answer default judgment categories: a default judgment entered as a discovery sanction. Paradigm Oil, 372 

S.W.3d at 184-85.
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judgment nihil dicit; and (3) the post-answer default judgment. 

A traditional no-answer default judgment can be taken when the defendant is properly 

served with citation but fails to answer or appear. TEX.R.CIV.P. 239. A defendant who has not 

answered or otherwise appeared in the case is not entitled to notice of a default judgment 

proceeding. Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex.App.--Houston [1st Dist.] 2004, pet. 

denied). A judgment nihil dicit is usually “limited to situations in which either (1) the defendant 

has made a plea, usually dilatory in nature, but the pleading has not placed the merits of the 

plaintiff’s case in issue before it is overruled, or (2) the defendant has placed the merits of the 

case in issue by filing an answer, but has withdrawn that answer.” Paradigm Oil, 372 S.W.3d at 

184 n.8, quoting 7 William V. Dorsaneo III, TEXAS LITIGATION GUIDE § 100.01[3] at 100–11 

(2011). A no-answer default and a judgment nihil dicit are so similar that the same rules apply to 

each with respect to the effect and validity of the judgment. Stoner, 578 S.W.2d at 682. In both 

instances, the non-answering party has “admitted” the facts properly pled and the justice of the 

opponent’s claim, although a judgment nihil dicit carries an even stronger confession than the 

no-answer default judgment. Id.

A post-answer default occurs when the defendant has filed an answer but fails to appear 

for trial. It differs from the no-answer default and the judgment nihil dicit in that it does not 

constitute an abandonment of the defendant’s answer and it is not an implied confession of any 

issues joined by the defendant’s answer. Stoner, 578 S.W.2d at 682. Consequently, judgment 

cannot be entered on the pleadings, and the plaintiff is required to offer evidence and prove his 

case as in a judgment upon a trial. Id. 

The Supreme Court had also recognized a fourth category of default judgment: a postappearance default judgment. LBL Oil Co. v. International Power Services, Inc., 777 S.W.2d 
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390 (Tex. 1989). This type of default judgment occurs when the defendant makes a general 

appearance but fails to answer or appear for trial. Once a defendant has made an appearance, he 

is entitled to notice of the trial setting as a matter of due process under the Fourteenth 

Amendment. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 

75 (1988); LBL Oil, 777 S.W.2d at 390-91; In re Brilliant, 86 S.W.3d 680, 693 (Tex.App.--El 

Paso 2002, orig. proceeding). A party enters a general appearance when he (1) invokes the 

judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by his 

acts that an action is properly pending, or (3) seeks affirmative action from the court. Exito 

Electronics Co., Ltd. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004); Dawson-Austin v. Austin, 968 

S.W.2d 319, 322 (Tex. 1998). 

The record reflects that Appellants did not file an answer but they entered into a Rule 11 

agreement which reads as follows:

1. The parties agree to continue the hearing regarding the injunctive relief set for 

Tuesday, October 13, 2009 at10:00 a.m. until further order of the Court.

2. The parties agree to extend the injunctive Bond filed until further order of the 

Court.

3. The parties agree there will be no attempt to proceed with enforcement or 

eviction proceedings until further order of the Court.

4. The parties will attempt a settlement of this matter. If no settlement is 

reached within sixty (60) days from the date of this agreement, the parties will 

notify the Court whether a hearing will be necessary on this matter or 

mediation will be requested. 

Consistent with paragraph 4 of the Rule 11 agreement, the Venturas made a written request for 

the case to be submitted to mediation. The trial court ordered the parties to mediation on 

February 26, 2010. 

The Supreme Court held in Exito Electronics that a Rule 11 agreement extending a 
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defendant’s time to file an initial responsive pleading did not constitute a general appearance in 

the context of a special appearance. Exito Electronics, 142 S.W.3d at 306. Likewise, the 

Fourteenth Court of Appeals held in Angelou v. African Overseas Union that a Rule 11 

agreement extending the answer date did not constitute a general appearance. Angelou v. African 

Overseas Union, 33 S.W.3d 269, 275 (Tex.App.--Houston [14th Dist.] 2000, no pet.). In both 

Exito and Angelou, the defendants contested the trial court’s jurisdiction by filing a special 

appearance and the question was whether the defendants made a general appearance and waived 

their special appearance by entering into a Rule 11 agreement to extend the time to file their 

initial responsive pleading. 

The instant case is distinguishable because the Rule 11 agreement was not made in the 

context of a special appearance. Appellants did not merely agree to continue the temporary 

injunction hearing, continue the injunction bond, and cancel the pending eviction proceeding, 

they specifically made their agreement subject to further order of the trial court. The parties 

agreed to notify the Court if they were unable to reach a settlement and to advise the court if a 

hearing was necessary or mediation would be requested. By taking these actions, Appellants 

recognized that the case was properly pending in the trial court. We hold that Appellants made a 

general appearance in the case but failed to file an answer. Under these circumstances, the 

judgment entered by the court is not a no-answer default judgment, a judgment nihil dicit, or a 

post-answer default judgment. It is instead a post-appearance default judgment.

Standard of Review

We review a trial court’s decision on a motion for new trial for an abuse of discretion. 

Rivas v. Rivas, 320 S.W.3d 391, 393 (Tex.App.--El Paso 2010, no pet.); Munoz v. Rivera, 225 

S.W.3d 23, 26 (Tex.App.-El Paso 2005, no pet.), citing Cliff v. Huggins, 724 S.W.2d 778, 778 
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(Tex. 1987). A trial court must set aside a default judgment when the movant satisfies the 

requirements articulated in Craddock v. Sunshine Bus Lines. Director, State Employees 

Workers’ Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Rivas, 320 S.W.3d 

at 393. Appellants must demonstrate that: (1) their failure to appear for trial was not intentional 

or the result of conscious indifference; (2) they have a meritorious defense; and (3) the granting 

of a new trial will not operate to cause delay or injury. Milestone Operating, Inc. v. ExxonMobil 

Corporation, 388 S.W.3d 307, 309 (Tex. 2012); Evans, 889 S.W.2d at 268; Ivy v. Carrell, 407 

S.W.2d 212, 213 (Tex. 1966). If the Craddock elements are satisfied, it is an abuse of discretion 

for the trial court to deny a motion for new trial. Evans, 889 S.W.2d at 268; Rivas, 320 S.W.3d 

at 393.

Conscious Indifference

The burden of proof is on Appellants to show that their failure appear for trial was not the 

result of conscious indifference. Munoz, 225 S.W.3d at 28; Rivas, 320 S.W.3d at 393. We look 

to the knowledge and acts of the defendant to determine whether the defendant satisfied its 

burden as to the first Craddock element. Milestone Operating, 388 S.W.3d. at 309; Evans, 889 

S.W.2d at 269; Rivas, 320 S.W.3d at 393-94. Conscious indifference has been defined as failing 

to take some action which would seem obvious to a person of reasonable sensibilities under the 

same circumstances. Evans, 889 S.W.2d at 269; Rivas, 320 S.W.3d at 393-94; Johnson v. 

Edmonds, 712 S.W.2d 651, 652 (Tex.App.--Fort Worth 1986, no writ). If the factual assertions 

in a movant’s affidavit are not controverted, the movant satisfies his burden if his affidavit sets 

forth facts that, if true, negate intentional or consciously indifferent conduct. Evans, 889 S.W.2d 

at 269; Rivas, 329 S.W.3d at 394. In determining if the factual assertions are controverted, the 

court looks to all the evidence in the record. Evans, 889 S.W.2d at 269; Rivas, 320 S.W.3d at 
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394.

The Venturas filed suit on September 30, 2009 and Appellants were served on October 7, 

2009. Appellants’ attorney, Nathan Cace, stated in his affidavit that he mistakenly believed he 

had filed an answer in the suit when he had not done so. Appellants’ motion for new trial does 

not address why they failed to appear for trial. On August 24, 2010, Gamboa requested a jury 

trial setting for December 2010 and faxed a copy of the request to Cace. The case was set for

jury trial on March 21, 2011 and the Venturas appeared for trial with counsel. Since Cace had 

never filed an answer on behalf of Appellants or entered an appearance as counsel, the notices of 

the trial setting were sent directly to Appellants. Gamboa’s affidavit asserts that proper notices 

of the trial setting were sent to Appellants but they did not appear for trial. In its written letter 

order denying the motion for new trial, the court found that notices of the trial setting were 

mailed to Sedona Pacific Housing Partnership and Gonzalez Financial Holdings. None of the 

affidavits attached to Appellants’ motion for new trial addresses their failure to appear for trial. 

Accordingly, we find that Appellants failed to prove that their failure appear for trial was not the 

result of conscious indifference. Because the trial court did not abuse its discretion by overruling 

the motion for new trial, we overrule Issue One.

PROOF OF DAMAGES

In Issue Two, Appellants contend that the trial court erred by awarding damages in the 

amount of $66,958 and attorney’s fees because the Venturas failed to present any evidence in 

support of these awards. The Venturas respond that the issue should be overruled because 

Appellants filed a partial reporter’s record without complying with Rule 34.6(c)(1) of the Texas 

Rules of Appellate Procedure. 

The record does not include a court reporter’s record from the default judgment hearing.
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It is unclear whether there is no reporter’s record or whether Appellants did not request that the 

court reporter prepare the record of that hearing. In either case, the absence of the record 

precludes our review of this issue.

Generally, in an appeal with only a partial reporter’s record, we must presume the 

omitted portions of the record are relevant and support the trial court’s judgment. Feldman v. 

Marks, 960 S.W.2d 613, 614 (Tex. 1996). Rule 34.6(c) provides an exception to the general 

rule. See TEX.R.APP.P. 34.6(c). Under Rule 34.6(b) of the Rules of Appellate Procedure, an 

appellant must request in writing that the official court reporter prepare the reporter’s record and 

designate the portions of the portions of the proceedings to be included. TEX.R.APP.P. 34.6(b). 

If the appellant requests a partial reporter’s record, the appellant must include in the request a 

statement of the points or issues to be presented on appeal and will then be limited to those 

points or issues. TEX.R.APP.P. 34.6(c)(1). This gives other parties the opportunity to designate 

additional exhibits and portions of the testimony to be included in the reporter’s record. 

TEX.R.APP.P. 34.6(c)(2). If the appellant complies with these requirements, the appellate court 

must presume that the partial reporter’s record constitutes the entire record for purposes of 

reviewing the stated points or issues. TEX.R.APP.P. 34.6(c)(4). If the appellant fails to comply 

with Rule 34.6(c), we will apply the general presumption that the missing portions of the record 

support the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2003). 

The record does not include a statement of the points or issues Appellants intended to 

present on appeal. Consequently, we will not apply Rule 34.6(c)(4)’s presumption that the 

partial reporter’s record designated by the parties constitutes the entire record for purposes of 

reviewing the stated points or issues. TEX.R.APP.P. 34.6(c)(4); see El Paso Accent Homes, 

L.L.C. v. Preferred Group Properties, Inc., 387 S.W.3d 810 (Tex.App.--El Paso 2012, no pet.). 
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We will instead apply the presumption that the omitted portions of the record are relevant and 

support the judgment on appeal. See Bennett, 96 S.W.3d at 229; Christiansen v. Prezelski, 782 

S.W.2d 842 (Tex. 1990). We overrule Issue Two and affirm the judgment of the trial court.

May 22, 2013

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

Antcliff, J., not participating