NUMBER 13-12-00540-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ARMANDO QUINTERO BRAVO, Appellant,

v.

ELMA OLIVAREZ, Appellee.

 

On appeal from the County Court at Law No. 7

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Longoria 

Memorandum Opinion by Justice Rodriguez

In this divorce case, appellant Armando Quintero Bravo challenges the trial court's 

post-answer default judgment in favor of appellee Elma Olivarez. By one issue, Bravo 

argues that the trial court abused its discretion in denying his motion for new trial. We 

affirm.
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I. Background

Olivarez and Bravo have been living together as husband and wife since January 

1990. They have two children together. Citing insupportability as grounds, Olivarez 

filed for divorce from Bravo on January 27, 2010. In his answer to Olivarez's petition on 

February 5, 2010, Bravo alleged that "there is no existing marriage between the parties." 

Agreed temporary orders addressing custody, child support, visitation, and other 

standard matters were entered on February 10, 2010.

On July 20, 2011, the trial court held a docket control conference (DCC). 

Olivarez's counsel and Bravo's counsel's legal assistant attended the DCC. At the DCC, 

the trial court set the case for a bench trial on September 19, 2011. The case was then 

called for trial on that date; Olivarez appeared with her attorney, but neither Bravo nor his 

counsel appeared. The trial court granted Olivarez's divorce petition by default.

On October 11, 2011, Bravo filed a motion to set aside the default judgment and a 

motion for new trial, arguing that: (1) his failure to appear was the result of accident and 

mistake, as set out in the affidavits attached to the motion; (2) his petition states a 

meritorious defense by alleging that there was no existing marriage between the parties; 

and (3) a new trial would not cause delay or prejudice to Olivarez in light of the fact that 

"this matter had been filed by [Olivarez] since January 2010 and [the] matter had not 

[been] scheduled for any final hearing until July 2011." He attached affidavits from his 

counsel and his counsel's legal assistant to the motion. Counsel's legal assistant's 

affidavit follows in its entirety:

My name is Maria Luisa Sanchez. I am above the age of eighteen 

years, and I am fully competent to make this affidavit. I am a part time legal 
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assistant to attorney San Juanita Sanchez. The facts stated in this affidavit 

are within my personal knowledge and are true and correct.

Attorney Sanchez was out on medical leave due to surgery from July 

15, 2011 until August 3, 2011. A docket control conference was held on 

July 20, 2011 regarding this matter. I was present for that conference call. 

Upon the setting of the hearing, I called Ms. Del Bosque's [Olivarez's 

counsel's] office upon instruction by Ms. Sanchez to request an extension to 

discovery and requested the matter be set for a later date to allow time for 

responses. At which time, after several calls, I mistakenly believed that the 

matter had been set for October 4, 2011. Furthermore, I mistakenly placed 

another case on the calendar for the hearing date of [] September 19, 2011. 

As a result, neither Ms. Sanchez or Respondent [Bravo] were present at the 

hearing. Additionally, neither Attorney Sanchez nor I was in the office the 

morning of September 19, 2011 and did not hear message from court that 

matter was set for that morning. Failure to appear was a result of a 

mistake or accident, and not the result of conscious indifference.

Counsel's affidavit follows in its entirety:

My name is San Juanita Sanchez. I am above the age of eighteen 

years, and I am fully competent to make this affidavit. I am the attorney for 

Respondent, Armando Quintero Brave [sic]. I have read the Motion to Set 

Aside Default Judgment and Motion for New trial. The facts stated in this 

affidavit are within by personal knowledge and are true and correct.

I was informed by my assistant, Maria Luisa Sanchez[,] that this 

matter had been set for [a] October 4, 2011 final hearing. Additionally, my 

assistant placed another of my cases for September 19, 2011. I nor staff 

was present at the office when the court placed a call to my office phone 

informing me of the [September 19] hearing. I did not become aware of the 

hearing until after a default judgment was rendered on the afternoon of 

September 19, 2011. Failure to appear was a result of a mistake or 

accident, and not the result of conscious indifference.

Several hearings were held on Bravo's motion for new trial, but no evidence or 

argument in addition to those presented in the motion and affidavits were presented at 

these hearings. The trial court verbally denied Bravo's motion for new trial at two of the 

hearings. On June 4, 2012, the trial court entered its final decree of divorce. The trial 

court entered its written order denying Bravo's motion for new trial on August 21, 2012. 
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This appeal followed.

II. Applicable Law and Standard of Review

[A] default judgment should be set aside and a new trial granted 

when the defaulting party establishes that (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.

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (per curiam) (citing 

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)). The supreme 

court has extended Craddock to post-answer default judgments. Id. at 925–26 (citing Ivy 

v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966)).

A trial court's refusal to grant a motion for new trial is reviewed for abuse of 

discretion. Id. at 926 (citing Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987)). "When 

a defaulting party moving for new trial meets all three elements of the Craddock test, then 

a trial court abuses its discretion if it fails to grant a new trial." Id. (citing Old Republic Ins. 

Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994)).

III. Discussion

By one issue, Bravo argues the trial court abused its discretion in denying his 

motion for new trial because he established the three required Craddock factors.

Even assuming without deciding that Bravo established the first and third 

Craddock factors—that his failure to appear at the September 19, 2011 bench trial was 

the result of accident or mistake and that the granting of a new trial would not cause delay 

or prejudice Olivarez—we cannot conclude that Bravo established the second Craddock

factor, which is dispositive of the appeal. See TEX. R. APP. 47.1; see also Craddock, 133 
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S.W.2d at 126. "The second prong of the Craddock test requires [the defaulting party] to 

'set up' a meritorious defense in its motion for new trial. Setting up a meritorious defense 

does not require proof 'in the accepted sense.'" Dolgencorp of Tex., Inc., 288 S.W.3d at 

927–28 (citations omitted). But a motion fails to set up a meritorious defense if it does 

not allege facts constituting such a defense and is not supported "by affidavits or other 

evidence providing prima facie proof that the defendant has such a defense." Id. at 928 

(citing Guar. Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 2006); Ivy, 407 S.W.2d at 

214). Here, aside from his bare assertion in his petition and in his motion for new trial 

that no marriage existed between him and Olivarez, Bravo alleged no facts related to this 

defense and provided no affidavits or other evidence that would have constituted prima 

facie proof of his defense. As such, Bravo failed to set up a meritorious defense and thus 

failed to establish the second Craddock factor. 

Because Bravo failed to establish all three of the Craddock factors, he did not show 

himself entitled to a new trial. The trial court therefore did not abuse its discretion in 

denying Bravo's motion to set aside the default judgment and motion for new trial. 

Bravo's appellate issue is overruled.

IV. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 5th

day of September, 2013.