Date: 11-28-2022

Case Style:

Obadiah Kinara v. David Ongera

Case Number: 02-22-00068-CV

Judge: Dana Womack

Court:

Second Appellate District of Texas at Fort Worth

On appeal from the

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Defendant's Attorney: Amy M. Lorenz

Description:

Fort Worth, Texas – Civil Litigation lawyer represented Appellant with appealing the trial court’s default judgmen.

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In December 2020, Dorothy Ongera (Decedent) drowned in a bathtub under
allegedly suspicious circumstances in a home she shared with Kinara. Kinara
maintains that he was Decedent’s common-law husband at the time of her death.
Ongera is Decedent’s father; he disputes that Kinara was Decedent’s common-law
husband at the time of her death. After Decedent’s death, Ongera requested that an
independent autopsy be performed to determine the cause of Decedent’s death.
3
Around that time, a dispute arose between Kinara and Ongera regarding the control
of Decedent’s remains.
On January 25, 2021, Ongera filed the present lawsuit against Kinara.1 The live
pleadings from the present lawsuit are not included in the appellate record.2 The
record mentions that as part of the lawsuit, Ongera filed an application for a
temporary restraining order that was set for a hearing on January 29, 2021.3 The day
before that hearing, Kinara had Decedent buried. As alleged by Ongera in his brief,
“Decedent’s family, including her six minor children, parents, and siblings were not
given notice of Decedent’s burial, and no funeral was held in Decedent’s honor.”
On January 29, 2021—the day after Decedent was buried—the trial court
signed an order granting a temporary restraining order that enjoined Kinara and the
funeral home from “[a]ltering, embalming, transporting, physically touching,
1The record indicates that a prior lawsuit between the parties was filed in the
153rd District Court of Tarrant County, but it was dismissed for jurisdictional
concerns. The record does not contain any pleadings or written orders from that
lawsuit.
2A case summary included in the record reflects that Ongera filed his original
petition in this case on January 25, 2021, his first amended petition on January 25,
2021, and his second amended petition on February 23, 2021. While none of those
petitions are included in the record, we have not required the supplementation of the
record because we can decide this appeal without it. The case summary further
reflects that Ongera also filed suit against a funeral home. That entity is not a party to
this appeal.
3The application for a temporary restraining order is not included in the record.
Moreover, because no reporter’s record was filed in this appeal due to nonpayment,
we do not have a transcript from the January 29, 2021 hearing.
4
preparing, removing, disposing, and/or cremating the remains of [Decedent] which
are currently in the possession of [the funeral home].” In that order, the trial court
also set the case for trial on March 23, 2021. Ongera later filed a motion to exhume
Decedent’s body. The trial court granted the motion but suspended its order pending
the March 2021 trial so that it could “determine [at trial] the person with the right to
control the disposition of the remains of [Decedent].”
On March 11, 2021—twelve days before the trial was scheduled—Kinara filed
a petition for writ of mandamus in our court complaining about several rulings by the
trial court, including the trial court’s ruling on Ongera’s motion to exhume Decedent’s
body.4 On March 12, 2021, we stayed the March 23, 2021 trial setting pending our
resolution of the mandamus petition. We ultimately denied Kinara’s petition for writ
of mandamus in September 2021. See In re Kinara, No. 02-21-00065-CV, 2021 WL
4129838, at *1 (Tex. App.—Fort Worth Sept. 10, 2021, orig. proceeding) (per curiam)
(mem. op.).
On October 26, 2021, following our ruling on Kinara’s petition for writ of
mandamus, the trial court signed an order setting trial in this case “for the week of
November 15, 2021” and setting a pretrial Zoom hearing for November 9, 2021. On
4Kinara also complained about the trial court’s ruling on a motion for
continuance that he had filed on March 8, 2021.
5
November 3, 2021, Kinara’s counsel filed an amended5 motion to withdraw,
contending that Kinara had threatened to physically harm her and others and that the
threats had caused a conflict of interest with her representation of Kinara. The
motion reiterated that the pretrial hearing was set for November 9, 2021, and that trial
was set for “the week of November 15, 2021.” It also stated that a copy of the
motion had been delivered to Kinara “via his attorney.”
On November 8, 2021, Kinara’s counsel filed a motion for continuance on
Kinara’s behalf. That motion indicated that Kinara had been made aware that
(1) Kinara’s counsel’s motion to withdraw was set for a hearing on November 9,
2021, at 8:30 a.m.; (2) the pretrial hearing was set for November 9, 2021, at 9:30 a.m.;
and (3) the final trial was set “the week of November 15, 2021.” The motion also
indicated that Kinara had been provided with a Zoom login needed to electronically
appear at the pretrial hearing and the hearing on the motion to withdraw.6
On November 9, 2021, the trial court heard and granted the motion to
withdraw filed by Kinara’s counsel.7
In the order granting the motion, the trial court
5The case summary included in the record indicates that Kinara’s counsel had
filed a previous motion to withdraw on September 21, 2021. That motion does not
appear in the record.
6There is nothing in the record to indicate that the trial court ever ruled on this
motion for continuance or that Kinara ever set it for a hearing.
7The order granting the motion stated that the trial court heard and granted the
motion to withdraw filed by Kinara’s counsel on September 21, 2021, but did not
mention the amended motion to withdraw filed on November 3, 2021.
6
ordered Kinara’s counsel to “immediately notify [Kinara] in writing of any additional
settings or deadlines[,] including the trial setting for the week of November 15, 2021[,]
of which [she] has knowledge . . . and [to] send this order to [Kinara] via regular and
certified mail.” Following the hearing on the motion to withdraw, the trial court
proceeded with the pretrial hearing. According to Ongera, Kinara failed to attend the
pretrial hearing, where the trial court discussed that the trial would take place on
November 16, 2021.
8
In the days before trial, the trial court coordinator sent several emails to the
parties relating to the trial date. On November 11 at 9:59 a.m., the coordinator sent
an email to the parties, including Kinara, that contained the subject line “Tuesday Jury
Trial November 19th 2021.”9 The body of that email included the following: “Please
find the link below for the Trial that is set for Tuesday November 19th.” That email
also included a link for a Zoom meeting with the topic of “Jury Trial- Ongera” that
was scheduled for November 16 at 9:00 a.m. At 10:00 a.m. on November 11—one
minute after the coordinator sent her first email to the parties regarding the trial
date—the coordinator sent another email to the parties, including Kinara, that
contained the subject line “Tuesday Jury Trial November 16th 2021.” The body of
8Because the appellate record does not contain a reporter’s record, we do not
have a transcript of the pretrial hearing.
9November 19 was a Friday, not a Tuesday. November 16—the actual trial
date—was a Tuesday.
7
that email included the following: “Please find the link below for the Trial that is set
for Tuesday November 16th.” That email also included a link for a Zoom meeting
with the topic of “Jury Trial- Ongera” that was scheduled for November 16 at
9:00 a.m. On November 15, the coordinator forwarded the 10:00 a.m. November 11
email to the parties, and the coordinator stated, “Please find the link below for Trail
[sic] set for tomorrow November 16th.”10
On November 16, the trial court conducted a trial, Kinara failed to appear, and
the trial court granted a default judgment in favor of Ongera. In the default
judgment, the trial court decreed that Kinara and Decedent were not married at the
time of Decedent’s death and that Ongera was Decedent’s “next of kin for the
purpose of controlling [her] remains.” The trial court also awarded Ongera attorney’s
fees in the amount of $39,700.
Kinara later filed a motion to set aside the default judgment and for a new trial.
In that motion, Kinara argued that he did not appear at trial due to an accident or
mistake, referencing the email he had received from the trial court coordinator on
November 11 at 9:59 a.m. that mentioned that the trial was set for “Tuesday
November 19th.” In an affidavit attached to his motion, Kinara averred that he
“learned that the trial . . . was set for Tuesday, November 16, 2021, on the morning
10That same day—November 15—Kinara filed a handwritten motion for
continuance, asking that the trial court continue “the jury trial date for the week of
Nov 19th, 2021.” Nothing in the record indicates that the trial court ever ruled on
that motion for continuance or that Kinara ever set it for hearing.
8
trial was set to begin.”11 According to Kinara, “[u]pon learning the actual trial date,
[he] rushed to the courthouse to appear for trial. [But by the time he] arrived, a
default judgment had already been signed and entered into the Court’s record.” In his
affidavit, Kinara maintained that he “did not receive any actual or constructive notice
that trial was to begin at 9:00 a.m. on November 16, 2021, until the day of trial.”
Kinara argued that he had a meritorious defense to Ongera’s causes of actions,
describing Ongera’s claims as ones of declaratory judgment, negligent
misrepresentation, intentional infliction of emotional distress, and intrusion on
seclusion. Kinara also maintained that the granting of a new trial would not cause
delay or injury to Ongera. Kinara later requested that his motion be heard by
submission.
In his response to Kinara’s motion to set aside the default judgment and for a
new trial, Ongera argued that Kinara’s failure to appear at trial was due to conscious
indifference. To support his claim of conscious indifference, Ongera attached to his
response the emails sent by the trial court coordinator at 10:00 a.m. on November 11
and on November 15, both of which referenced the November 16 trial date. As to
Kinara’s argument of a meritorious defense to Ongera’s claims, Ongera took issue
with Kinara’s description of Ongera’s claims, stating that the only claim that
proceeded to trial “was the issue of which party had the right to control [Decedent’s]
11Kinara does not explain how he purportedly learned this information.
9
remains.” Ongera also explained that the timing of Kinara’s motion for new trial
would cause delay and work a prejudice to him, pointing to the fact that delay would
cause further deterioration of Decedent’s body that could “possibly destro[y] evidence
that could provide answers to her death” and would postpone the closure that would
be provided by Decedent’s funeral. The trial court later denied Kinara’s motion or it
was overruled by operation of law,
12 and this appeal followed.
III. DISCUSSION
A. The Trial Court’s Denial of Kinara’s Motion to Set Aside the Default
Judgment and Grant Him a New Trial
In his first issue, Kinara argues that the trial court abused its discretion by
denying his motion to set aside the default judgment and grant him a new trial.
1. Standard of Review and Applicable Law
We review a trial court’s decision to deny a motion to set aside a default
judgment and grant a new trial for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma,
288 S.W.3d 922, 926 (Tex. 2009). In determining whether a trial court abused its
12An order denying Kinara’s motion to set aside the default judgment and for a
new trial does not appear in the appellate record, and the case summary included in
the clerk’s record does not show the trial court signed one. Both parties indicate in
their briefs, however, that the trial court denied Kinara’s motion, although neither
party cites to an order signed by the trial court denying the motion. Even if the trial
court did not sign a written order denying Kinara’s motion, the motion would be
overruled by operation of law. See Tex. R. Civ. P. 329b(c) (providing that a motion
for new trial is overruled by operation of law if not determined by written order
within seventy-five days after the judgment was signed). Because the timing of the
denial is not relevant to any issue in the appeal, it does not matter whether the motion
was denied by order or operation of law.
10
discretion, we must decide whether the trial court acted without reference to any
guiding rules or principles; in other words, we must decide whether the act was
arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
When no findings of fact and conclusions of law are filed, the denial of a motion to
set aside the default judgment and for a new trial must be upheld on any legal theory
supported by the evidence.13
Huey-You v. Kimp, No. 02-16-00172-CV, 2018 WL
359633, at *5 (Tex. App.—Fort Worth Jan. 11, 2018, pet. denied) (mem. op.).
In Craddock v. Sunshine Bus Lines, Inc., the Texas Supreme Court established a
three-factor test for setting aside a default judgment. 133 S.W.2d 124, 126 (Tex.
1939). Under the test, a default judgment should be vacated and a new trial granted
when (1) the defaulting party establishes that the failure to answer or to appear was
not intentional or the result of conscious indifference but rather was due to a mistake
or an accident, (2) the motion for a new trial sets up a meritorious defense, and
(3) granting the new trial will not cause delay or work other injury to the prevailing
party. In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006); Craddock, 133 S.W.2d at 126.
When a defaulting party satisfies all three Craddock factors, a trial court abuses its
discretion if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926. The Craddock
test applies to a post-answer default judgment entered when a party fails to appear at a
13Here, the record does not show that any findings of fact or conclusions of law
were requested or made.
11
trial setting. In re T.F., No. 02-18-00299-CV, 2019 WL 2041790, at *3 (Tex. App.—
Fort Worth May 9, 2019, no pet.) (mem. op.).
With respect to the first factor, a defendant’s burden is satisfied when the
factual assertions, if true, negate intentional or consciously indifferent conduct by the
defendant and the factual assertions are not controverted by the plaintiff. Sutherland v.
Spencer, 376 S.W.3d 752, 755 (Tex. 2012). Consciously indifferent conduct occurs
when “the defendant knew it was sued but did not care.” Id. “In determining
whether the failure to appear was due to intentional disregard or conscious
indifference, the court ‘must look to the knowledge and acts of the defendant.’”
Century Sports Wears, Inc. v. Wallis Bank, No. 02-20-00201-CV, 2021 WL 1685957, at *3
(Tex. App.—Fort Worth Apr. 29, 2021, pet. denied) (mem. op.) (quoting Strackbein v.
Prewitt, 671 S.W.2d 37, 39 (Tex. 1984)). The party seeking a new trial has the burden
to prove the lack of intent or conscious indifference by offering some excuse for the
failure to appear, but the excuse need not necessarily be a good excuse. Sutherland,
376 S.W.3d at 755; Century Sports Wears, Inc., 2021 WL 1685957, at *3. In other words,
“[a] failure to appear is not intentional or due to conscious indifference . . . merely
because it was deliberate; it must also be without adequate justification. Proof of such
justification—accident, mistake, or other reasonable explanation—negates the intent
or conscious indifference for which reinstatement can be denied.” Smith v. Babcock &
Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995).
12
When the party who obtained the default judgment presents controverting
evidence to show that the defaulted party acted intentionally or with conscious
disregard to his rights, the question of why the defaulted party failed to answer
presents a fact question, which is resolved by the factfinder. La. C. Store Wholesaler,
Inc. v. Royal Nett Apparel, LLC, No. 02-17-00331-CV, 2018 WL 3059966, at *3 (Tex.
App.—Fort Worth June 21, 2018, no pet.) (mem. op.). In that event, the trial court,
acting as the factfinder, may generally believe all, none, or part of the evidence. Id.
“Thus, a trial court can reasonably believe, based on contradictory evidence, that there
was intentional or consciously indifferent conduct on the part of a defendant.” Id.
When a plaintiff contests the first Craddock factor, an evidentiary hearing with
live witnesses is ordinarily required. Pinole Valley Trucking, Inc. v. Tex. Dev. Co., No. 01-
08-00599-CV, 2009 WL 1025750, at *5 (Tex. App.—Houston [1st Dist.] Apr. 16,
2009, no pet.) (mem. op.); Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App.—
Houston [14th Dist.] 1998, no pet.). But no abuse of discretion occurs when the first
Craddock factor is contested and the record fails to show any attempt to obtain an
evidentiary hearing on such a motion. See Pinole Valley Trucking, 2009 WL 1025750, at
*5 (holding no abuse of discretion where first Craddock factor was contested, the
record reflected no attempt by the defendant to obtain a hearing on its motion for
new trial, and the motion was overruled by operation of law); Puri, 973 S.W.2d at 715
(“Because appellant failed to request a hearing on the contested issue of conscious
13
indifference and allowed the motion to be overruled by operation of law, we cannot
say that an abuse of discretion has occurred.”).
2. Application of the Law to the Facts
With respect to the first Craddock factor, Kinara argues that his failure to appear
at trial was inadvertent and was not due to intentional disregard or conscious
indifference. Kinara points to the November 11, 2021 email from the court
coordinator at 9:59 a.m. that stated that trial was set for “Tuesday November 19th.”
According to Kinara, he “reasonably relied on the information contained in the trial
notice and did not discover that trial was actually set on November 16, 2021, until
after the default judgment was signed.” In response, Ongera points to, among other
things, the controverting evidence that he included with his response to Kinara’s
motion—the November 11, 2021 email from the court coordinator at 10:00 a.m. and
the November 15, 2021 email from the court coordinator, both of which indicate that
the trial was set for Tuesday, November 16—to demonstrate that the trial court did
not abuse its discretion by denying Kinara’s motion for default judgment and for new
trial.
After reviewing the record and the arguments of the parties, we find no abuse
of discretion. Here, in the weeks prior to the November 16, 2021 trial, Kinara had
notice that the trial would take place during the week of November 15, 2021. That
notice was contained in the October 26 order setting the trial date, the November 3
amended motion to withdraw filed by Kinara’s counsel, and the November 8 motion
14
for continuance also filed by Kinara’s counsel. Those filings also indicated that a
pretrial hearing would be held on November 9. Here, Kinara did not attend the
pretrial hearing where he could have learned about the specific date that trial would
begin.
More importantly, in the days before the November 16 trial, the trial court
coordinator sent emails to the parties, including Kinara, regarding the trial date.
Kinara relies on the email sent by the coordinator on November 11 at 9:59 a.m. that
stated that the trial was set for “Tuesday November 19th.” Kinara baldly maintains
that he “did not receive any other notice of the exact date on which trial would
commence” other than that email. But Ongera presented controverting evidence that
Kinara received other emails from the coordinator at the same email address that
made clear that the trial was set for November 16. Most importantly, Ongera
presented evidence that the coordinator sent Kinara an email on November 11 at
10:00 a.m.—one minute after the incorrect email was sent—that made clear that the
trial was set for November 16. On November 15, the coordinator sent Kinara
another email that again indicated that trial was set for November 16. Given that
conflicting evidence—along with the fact that November 19, 2021, was a Friday, not a
Tuesday; that the November 11 email at 9:59 a.m. that Kinara relies on also contained
a link for a Zoom meeting with the topic of “Jury Trial- Ongera” that was scheduled
for November 16 at 9:00 a.m.; and that the trial-court record is rife with instances
where Kinara had sought to delay the trial date—the trial court could have reasonably
15
believed that Kinara’s failure to attend trial was intentional or the result of his
conscious indifference and not due to accident or mistake.
14
See Craddock, 133 S.W.2d
at 126; La. C. Store Wholesaler, 2018 WL 3059966, at *3. Moreover, because the first
Craddock factor was contested and the record fails to show any attempt to obtain an
evidentiary hearing on the motion—rather, Kinara requested that the motion be heard
by submission—we cannot say that the trial court abused its discretion by denying
Kinara’s motion or allowing it to be overruled by operation of law. See Pinole Valley
Trucking, 2009 WL 1025750, at *5; Puri, 973 S.W.2d at 715.
Because Kinara has not established the first Craddock factor—that his failure to
appear was not intentional or the result of conscious indifference but rather was due
to an accident or mistake—we overrule Kinara’s first issue.15
B. Notice Under Rule 245
In his second issue, Kinara argues that the trial court failed to provide at least
forty-five days’ notice of the November 16, 2021 trial setting as required by Texas
Rule of Civil Procedure 245.
14The trial court could have also determined that Kinara’s explanation was
unreasonable. See Smith, 913 S.W.2d at 468. To that end, while Kinara does not
mention the other emails from the trial court coordinator indicating that trial was to
take place on November 16, Kinara seemingly argues that he received the
November 11 email at 9:59 a.m. but that he did not receive the November 11 email at
10:00 a.m. or the November 15 email. Based on the record as a whole, the trial court
could have found that explanation to be incredible.
15We need not address whether Kinara has established the second or third
Craddock factors. See Tex. R. App. P. 47.1.
16
1. Applicable Law
Under Rule 245, a trial court must give the parties at least forty-five days’ notice
of the first trial setting in a contested case. Tex. R. Civ. P. 245. But when a case has
been previously set for trial, the trial court may reset it to a later date on reasonable
notice to the parties. Id. “To preserve a complaint about insufficient notice under
Rule 245, ‘[a] party must timely and specifically object to insufficiency of notice under
[R]ule 245, or the error is waived.’” Stone v. Stone, No. 02-18-00163-CV, 2020 WL
3410502, at *4 (Tex. App.—Fort Worth May 28, 2020, pet. denied) (mem. op.)
(quoting In re A.H., No. 2-06-211-CV, 2006 WL 3438179, at *1 (Tex. App.—Fort
Worth Nov. 30, 2006, no pet.) (mem. op.)). “The objection must be made before
trial; a [R]ule 245 objection made in a motion for new trial is untimely and preserves
nothing for review.” Id.; A.H., 2006 WL 3438179, at *1.
2. Application of the Law to the Facts
Here, Kinara did not complain that he received insufficient notice of the
November 2021 trial date until he filed his motion to set aside the default judgment
and for a new trial. Thus, Kinara has waived any complaint regarding insufficient
notice of the November 16, 2021 trial date. See Stone, 2020 WL 3410502, at *4; A.H.,
2006 WL 3438179, at *1; Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659
(Tex. App.—San Antonio 2002, no pet.) (“A party may waive a complaint [under Rule
245] by failing to take action when the party receives some, but less than forty-five
days[’] notice.”).
17
Moreover, even if Kinara had not waived this complaint, we would still reject it
because he received more than forty-five days’ notice of the initial trial setting. In its
January 29, 2021 order granting Ongera a temporary restraining order, the trial court
set this case for trial on March 23, 2021. Thus, Kinara had fifty-three days’ notice of
the initial trial setting. When the trial court reset the trial date on October 26, 2021, it
gave approximately twenty days’ notice of the trial set “for the week of November 15,
2021.” Such notice was reasonable. See O’Connell v. O’Connell, 843 S.W.2d 212, 216
(Tex. App.—Texarkana 1992, no writ) (concluding that eight days’ notice was
reasonable when case had been reset previously). We overrule Kinara’s second
issue.

Outcome: Having overruled Kinara’s two issues, we affirm the trial court’s judgment.
16Under the argument section of his second issue, Kinara spends two sentences
arguing that the trial court deprived him of due process by ruling on his motion to set
aside the default judgment and for a new trial before his deadline to file a reply to
Ongera’s response was due under a scheduling deadline established by the trial court.
But Kinara does not cite an order denying his motion, and nothing in the record
shows his motion was denied before the reply date set by the trial court. In addition,
Kinara has cited us no law that requires a trial court to allow a party to file a reply to a
response on a motion to set aside a default judgment prior to ruling on the motion,
and we have found none. Moreover, even if the trial court did somehow err by ruling
on Kinara’s motion prior to the deadline it had set for Kinara to file a reply brief,
Kinara has presented no argument or proof that the alleged error caused him any
harm. See Tex. R. App. P. 44.1(a). Thus, we reject Kinara’s argument.

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