Charles Robert Gauger v. Margie Tidwell Gauger, 11-15-00245-CV

Charles Gauger and Margie Tidwell were divorced after lengthy litigation; Gauger answered but missed the final hearing on June 1, 2015.
The case had multiple continuances and attorney substitutions; at a January 29, 2015 hearing the court admonished Gauger to immediately retain counsel and stated there would be no further continuances.
The court mailed notice setting the final hearing for June 1, 2015; Gauger did not appear or have counsel appear, though he left a voicemail saying he believed counsel had secured a continuance.
The trial court found Gauger in default, heard evidence from Tidwell, entered a final divorce decree, and Gauger later filed a motion for new trial claiming mistake and a meritorious defense.
Gauger asserted he paid $2,500 to a proposed counsel (Northcutt) believing that would secure a continuance or appearance, but admitted he did not pay the $25,000 retainer Northcutt required; no appearance was entered for Northcutt.
The trial court’s denial (overruled by operation of law) of Gauger’s motion for new trial was appealed; the Eleventh Court of Appeals reviewed whether Gauger met the Craddock test to set aside a default judgment.

Issue	Plaintiff's Argument (Tidwell)	Defendant's Argument (Gauger)	Held
Whether motion for new trial should have been granted under Craddock (set aside default judgment)	Default judgment valid because defendant was consciously indifferent and did not timely secure counsel or file for continuance	Gauger argued mistake/accident: he believed he retained counsel or paid for a continuance; he had a meritorious defense and requested a hearing on the motion	Court held Gauger failed to meet first Craddock element (no showing of mistake/accident negating conscious indifference); affirmed trial court

Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939) (three-part test for setting aside default judgments)
Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984) (abuse of discretion review of new-trial denials)
Sutherland v. Spencer, 376 S.W.3d 752 (Tex. 2012) (discussion of Craddock’s purpose and proof required)
Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81 (Tex. 1992) (trial court must grant new trial when all Craddock elements satisfied)
Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467 (Tex. 1995) (conscious indifference requires lack of adequate justification)
Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992) (conclusory allegations insufficient to show mistake)
Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266 (Tex. 1994) (uncontroverted affidavits may be sufficient to negate conscious indifference)