TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00341-CV
James Richardson, Appellant
v.
Maria Torres, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
NO. C-1-CV-13-009448, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
MEMORANDUM OPINION
Maria Torres, individually and as next friend of three minor children, sued James
Richardson for damages arising out of personal injuries resulting from an automobile accident.
After the trial court rendered a default judgment in Torres’s favor, Richardson filed a motion to
set aside the default judgment and for new trial, which the trial court denied. Richardson appeals,
contending in two issues that there were legal and equitable grounds for setting aside the default
judgment, and that the trial court abused its discretion by denying his motion. We will affirm.
BACKGROUND
On October 14, 2013, Torres filed suit against Richardson alleging that Richardson’s
negligence in operating his vehicle caused a collision between his vehicle and the vehicle in which
Torres and several minor children were passengers, resulting in personal injury to each of them.
Torres secured a default judgment against Richardson in the amount of $132,779.46 on February 28,
2014. On March 13, 2014, Richardson, through his attorney, W. James Nabholz, III, filed a motion
to set aside the default judgment and requested a new trial. Attached to the motion was Nabholz’s
affidavit, in which he averred that, since suit was filed, he had monitored the trial court’s electronic
docket system. Through this activity he learned that a citation addressed to “James Richardson,
4325 Cole [sic] Avenue, Fort Worth, Texas 76109”1 was issued on October 14, 2013. Nabholz
further averred that, as of November 5, 2013, there was no return of service on file with the trial
court. Nabholz stated that he had checked the electronic docket system weekly from November 5,
2013 through March 3, 2014, at which time he noticed for the first time that a private process
server’s affidavit of service had been filed on February 13, 2014. The affidavit of service stated that
Richardson had been served on December 9, 2014, at 4325 Clay Avenue in Fort Worth. Nabholz
averred that he had called or emailed Richardson “approximately every two to three weeks” during
the November through March time period, and that “at no time did [he] ever receive any information
which indicated that Richardson had been served in this case.” Nabholz’s affidavit also stated that
on or about February 24, 2014, he called Richardson “to again confirm he has not received service.”
Richardson did not submit his own affidavit or sworn declaration in support of the motion to set
aside the default judgment.2
1
The citation was in fact addressed to James Richardson at 4325 Clay Avenue in Fort Worth,
the address Richardson provided to the officer who investigated the accident.
2
Richardson did submit his own affidavit in support of a motion to reconsider the order
denying the motion to set aside the default judgment. This filing did not qualify as an amended
motion for new trial because it was filed after the trial court denied the original motion and more
than thirty days after the judgment was signed. See Tex. R. Civ. P. 329b(b). Moreover, the motion
to reconsider was not set for a hearing until after the trial court lost plenary power over the cause.
2
After a hearing, the trial court denied the motion to set aside the default judgment.
Richardson then perfected this appeal, contending that the trial court abused its discretion by
denying the motion in the face of “clear and unequivocal” evidence that he was not served with
process. In the alternative, Richardson asserted that a new trial should have been granted based on
the Craddock test. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)
(establishing three-element test for when no-answer default judgment should be set aside); see also
Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992) (trial court abuses its discretion by
not granting new trial when all three elements of Craddock test are met).
DISCUSSION
Service on Richardson
A judgment cannot be rendered against a defendant unless he has been properly
served, accepted or waived service of process, or made an appearance. Tex. R. Civ. P. 124. When a
default judgment is attacked by motion for new trial, the parties may introduce affidavits, testimony,
and exhibits to explain what happened and why the defendant failed to appear. See Fidelity and Guar.
Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573-74 (Tex. 2006) (discussing the difference
between restricted appeal, which is brought directly in appellate court where record is limited, and
motion for new trial, which is filed in trial court where record can be developed). If the answer to
this question is that the defendant was not served, the default judgment generally must be set aside.
See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988) (“Failure to give notice violates the
most rudimentary demands of due process of law.”); Caldwell v. Barnes, 154 S.W.3d 93, 96-97
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(Tex. 2004). The recitals in a process server’s return create a presumption that service was performed.
Huffeldt v. Competition Drywall, Inc., 750 S.W.2d 272, 273 (Tex. App.—Houston [14th Dist.] 1988,
no writ); see also Min v. Avila, 991 S.W.2d 495, 500-01 (Tex.App.—Houston [1st Dist] 1999,
no pet.) (return constitutes prima facie evidence of successful service). The recitations in the return
of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the
moving party. Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972). In the present case, the process
server filed an affidavit of service with the district court. Richardson’s attorney argued in his motion
for new trial that there was error in the citation served because it was addressed to “James
Richardson” when his client’s name is “James Richardson, Jr.” But the record shows that “James
Richardson” is the name Richardson provided to the officer investigating the accident and it is also
the name of the defendant in Torres’s petition. The trial court did not err in finding that there was
no error in the citation. Richardson does not identify any other errors in the citation or the return,
and we find none. Accordingly, the return created a presumption that service was successful. See
Min, 991 S.W.2d at 500-01; Huffeldt, 750 S.W.2d at 273.
The presumption of service can be rebutted with evidence in a motion for new trial.
See Fidelity & Guar. Ins. Co., 186 S.W.3d at 573-74 (parties may introduce evidence to show lack
of actual service in motion for new trial or bill of review); Huffeldt, 750 S.W.2d at 273 (presumption
of service can be rebutted). “[T]he question of lack of service is purely a question of fact which must
be determined by the trier of the facts.” Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972). The party
claiming ineffective service bears the burden of proof by a preponderance of the evidence. Id.
Critical to the analysis is the principle that “the jurisdictional power of the court derives from the
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fact of service and not the return itself.” Min, 991 S.W.2d at 501. Accordingly, if the record
establishes that the plaintiff was not served, the judgment is void. See PNS Stores, Inc. v. Rivera,
379 S.W.3d 267, 273 (Tex. 2012) (judgment void when record “exposes such personal jurisdictional
deficiencies as to violate due process” and complete failure of service violates due process).
Richardson argues on appeal that he presented the trial court with evidence rebutting
the presumption that he was served with citation. Specifically, he points to the Nabholz affidavit as
evidence that (1) Richardson had not resided at 4325 Clay Avenue, his parents’ house, for at least
six months prior to December 9, 2013, (2) Richardson was not at the Clay Avenue address at the date
and time recited in the process server’s return, (3) Nabholz was in regular contact with Richardson
to see if he had been served, and (4) Richardson had not been served. As an initial matter, the
statements in the Nabholz affidavit regarding Richardson’s place of residence and whereabouts at
the date and time of service are hearsay, counsel for Torres objected to Richardson’s affidavit on
that ground, and the trial court indicated on the record that he sustained the objection and did not
consider them. Moreover, although it comes close, Nabholz’s affidavit falls short of actually stating
that Richardson told him he was never served with citation. Instead, the affidavit states only that
Nabholz (1) checked the court’s electronic docket system regularly but did not learn that a return
of service was on file until February 24, eleven days after the return was filed, and (2) called
Richardson “to confirm he ha[d] not received service.” Richardson did not provide his own affidavit
or sworn declaration to support the contention that he was not served, nor did he appear at the motion
for new trial to testify to that effect. We cannot agree that there was evidence before the trial court
to rebut the presumption of service arising from the process server’s return. Richardson failed to
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meet his burden of proving lack of service by a preponderance of the evidence. We overrule
Richardson’s first issue.3
Application of Craddock Test
When a defendant who has been served fails to appear, a default judgment must be
set aside if the defendant proves the three elements of the Craddock test. Sutherland v. Spencer,
376 S.W.3d 752, 755 (Tex. 2012). The elements of the Craddock test are: (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, 926
(Tex. 2009); Craddock, 133 S.W.2d at 126. Because it is dispositive, we will address only whether
Richardson met the first element of the Craddock test; i.e., whether he proved that his failure to
appear was not intentional or the result of conscious indifference. See Craddock, 133 S.W.2d at 126.
3
A considerable portion of Nabholz’s affidavit is devoted to explaining that he and counsel
for Torres were communicating on a regular basis regarding settlements with non-parties who also
claimed to have been injured in the accident forming the basis of this suit. On appeal, Nabholz
contends that the trial court should have reversed the default judgment because it was taken when
counsel for Torres knew that Richardson was represented by counsel. See Texas Lawyer’s Creed—A
Mandate for Professionalism § III (11) (adopted November 7, 1989) (“I will not take advantage, by
causing any default or dismissal to be rendered, when I know the identity of an opposing counsel,
without first inquiring about that counsel’s intention to proceed.”). However, because Richardson
did not file an answer or otherwise appear, Torres was not required to give him notice of the
motion for default judgment. See Brooks v. Associates Fin. Servs. Corp., 892 S.W.2d 91, 94 (Tex.
App.—Houston [14th Dist.] 1994, no writ) (after defendant is served with citation and petition,
plaintiff has no legal duty to notify defendant before taking default judgment). Whatever significance
the Texas Lawyer’s Creed might have for disciplinary purposes, it “is not a proper vehicle for the
legal enforcement of a party’s desire to receive notice regarding the taking of a default judgment.”
Continental Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 190 (Tex. App.—Dallas 2000, pet.
denied).
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A defendant satisfies his burden as to the first Craddock element when his factual
assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the
factual assertions are not controverted by the plaintiff. 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.” Fidelity & Guar. Ins. Co., 186 S.W.3d at 576. Generally, “some excuse, although not
necessarily a good one, will suffice to show that a defendant’s failure to file an answer was not
because the defendant did not care.” In re R.R., 209 S.W.3d at 115. When applying the Craddock
test, the trial court looks to the knowledge and acts of the defendant as contained in the record before
the court. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992). Here, however,
Richardson offered no excuse for his failure to appear. Although Richardson’s attorney explained
in his affidavit that he had been monitoring the trial court’s electronic docket sheet and inquiring as
to whether Richardson had been served, this evidence does not negate intentional or consciously
indifferent conduct by the defendant as is required to satisfy the Craddock test’s first element. See
id. The record before the trial court at the time it heard and ruled on the motion for new trial is silent
with regard to Richardson’s reason for failing to appear or failing to inform his attorney that he had
been served. The trial court did not abuse its discretion in denying Richardson’s request to set aside
the default judgment based on the Craddock test. We overrule the second issue.
CONCLUSION
Having overruled Richardson’s two issue on appeal, we affirm the trial court’s
judgment.
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_____________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Bourland
Affirmed
Filed: August 25, 2015
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