Obadiah Kinara v. David Ongera

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.

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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.

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.