in the Interest of A.J.M. and A.C.M., Children
11-20-00222-CV
| Tex. App. | Sep 2, 2021Background
- Pamela Escobedo Moa (mother) and David Adrian Moa are joint managing conservators of two children; grandparents (David and Debbie Moa) intervened seeking primary-residence rights.
- A final hearing on the grandparents’ petition was set for June 24, 2020; neither Pamela nor her trial counsel appeared and the trial court entered a default order against her.
- Pamela filed a verified, timely motion for new trial (with affidavits from her and her mother) asserting neither she nor her attorney received actual or constructive notice of the June 24 setting and that they would have attended.
- Respondent alleged notices had been sent (referencing a March 3, 2020 letter and e-filing service records) but offered no documentary proof in the clerk’s record.
- The trial court’s denial of the motion for new trial was overruled by operation of law; the appellate court held the uncontroverted affidavits satisfied the first Craddock prong (lack of notice), requiring vacatur of the default order and remand for a new trial on due-process grounds.
Issues
| Issue | Plaintiff's Argument (Moa) | Defendant's Argument (Moa/grandparents) | Held |
|---|---|---|---|
| Whether the trial court erred by refusing to set aside the default order and grant a new trial where Moa says she and counsel received no notice of the final hearing | Verified motion and affidavits show neither Moa nor counsel received notice and would have attended — satisfies first Craddock prong | Notices were sent (March 3 letter and e-filing/service records); Moa failed to obtain a hearing on her motion for new trial | Court: record contains no prima facie proof of service; Moa’s factual assertions were uncontroverted and thus accepted as true; first Craddock prong met; vacate and remand for new trial |
| Whether an evidentiary hearing on the motion for new trial was required before ruling | A hearing is not automatically required when the motion’s factual assertions are uncontroverted; the court should decide on the written record | Cited cases say a trial court cannot be found to have abused discretion if the record is silent about an attempt to obtain a hearing | Court: hearing not mandatory; where assertions are uncontroverted the trial court must accept them as true; Felt/Shamrock limited to situations where assertions were controverted and no hearing was held |
Key Cases Cited
- Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) (establishes three‑part test for setting aside a default judgment)
- Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (lack of notice to defaulting party raises due‑process concerns and can mandate vacatur)
- Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (U.S. 1988) (due‑process limits on default judgments when notice is lacking)
- Evans (Dir., State Emps. Workers’ Comp. Div. v. Evans), 889 S.W.2d 266 (Tex. 1994) (trial court may consider affidavits attached to motions; uncontroverted affidavits must be accepted)
- Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984) (procedures for preserving attack on default judgment via motion for new trial)
- In re R.R., 209 S.W.3d 112 (Tex. 2006) (standard of review for denial of motion for new trial)
- Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009) (trial court abuses discretion if Craddock test is met but new trial denied)