Guide to a Motion For New Trial After a Default

What do you do if you find out that a Default Judgment has been entered against you in your family law case? The following article will teach you how to attack the Default Judgment by filing a motion for new trial.

Time Lines

A document called a “motion for new trial” must be filed within 30 days of the Default Judgment. This motion must be accompanied by a supporting affidavit.

Contents of the Motion

The Court will use the Craddock Factors in determining whether or not they will grant a new trial and reopen the case. The Craddock Factors come from the case Craddock v. Sunshine Bus Lines, Inc., 134 S.W.2d 124 and are as follows:

1. Failure of the movant to appear was not intentional or the result of conscious indifference.
2. There is a meritorious defense.
3. The granting of a new trial will not operate to cause delay or injury to the opposing party.

Your Motion for New Trial and supporting affidavit must be drafted with the Craddock Factors in mind. When drafting your motion and affidavit it is helpful to think of the motion and affidavit as a story. The motion is the table of contents and will outline how you meet the Craddock Factors. The affidavit will give the specific details and tell the story of how the Craddock Factors are met.

Void on its Face

Before getting into the Craddock Factors it is important to recognize that a Default Judgment taken against you may be void on its face. To be void on its face means that certain procedural steps were not followed that are required to take a Default Judgment and therefore the Default Judgment is invalid. If the Default Judgment is found to be void on its face you will be automatically be granted a new trial.

Was service and notice proper?

To determine whether service and notice is proper we will look to Texas Rules of Civil Procedure 4, 21a, and 245.

Under TRCP 245 the first trial setting must set with reasonable notice of not less than 45 days. If you were given no notice of the first trial setting then due process prevents further analysis under Craddock and you will be given a new trial, Lopez v. Lopez 757 s.w.2d 721. If you were given notice but it was less than 45 days then it will depend on the court whether they will automatically grant you a new trial. However, most courts strictly adhere to TRCP 245 and you are likely to be automatically granted a new trial., Blanco v. Bolanos 20 s.w.3d 809.

In addition, we need to see if the service itself is proper, TRCP 21a governs the method of service. Any document that is filed electronically (i.e. Efiled) must be served by the the electronic filing manager. What this means is if your email address is on file through the Texas Efile system then you must be Eserved with the notice of trial through the Texas Efile system. If this is not done then service is improper under TRCP 21a. If your email address is not on file through the Texas Efile system then you can be served in other ways including email, fax, and mail. If you are mailed the notice of trial setting then under TRCP 4, 3 days must be added to the notice, therefore the earliest a trial setting could be is 48 days from the date of the notice.

Was a record taken?

If a record was not taken it may be grounds for an automatic new trial. Without a reporter’s record then then court cannot evaluate the sufficiency of the evidence to support the trial court’s order, Stubbs v. Stubbs, 685 sw2d. 643. Furthermore, if there are children involved in the suit then a record must be taken, TEX. FAM. CODE ANN. 105.003(c).

Craddock Factors

1. Failure of the movant to appear was not intentional or the result of conscious indifference

There is no objective standard for conscious indifference the courts take this factor on a case by case basis. However, the following are examples of excuses that have qualified as a mistake or accident: General Forgetfulness or Failure to Calendar, Belief that there were on going settlement negotiations, Busy or Short Staffed, No awareness of the Hearing or Trial Setting, Mistake of Law. D. (Todd Smith, Maitreya Tomlinson Defaults Judgments in Texas 23 (2012)

2. There is a meritorious defense

A meritorious defense is demonstrated by showing that the outcome may be different if a new trial was granted. A good place to start is with the opposing parties pleadings. Is something unfair? Such as the visitation schedule, the rights and duties of the parents, was the party taking the default given a disproportionate share of the community property. Furthermore, was something awarded in the default that was not plead in the petition. If this is the case this could also be an automatic new trial.

3. The granting of a new trial will not operate to cause delay or injury to the opposing party.

If the first two factors of Craddock are proved then the party that took the default has burden of proving that an injury will occur. If the defaulting party has suffered an injury one way to counter act this is to offer to pay the defaulting parties expenses for taking the default judgement.

What Are Your Chances of Winning a Motion For New Trial?

If the steps stated above are followed, your chances of winning are very high particularly in Bexar County, Texas.

Download a Sample Motion For New Trial

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