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Click here for the full text of this decision FACTS:Two days after she filed for divorce on March 20, 2003, Lisa Ann Runberg served her husband Doak with a temporary restraining order directing him to appear for a show cause hearing to set temporary orders on March 26. Doak, appearing pro se, Lisa, and her attorney appeared. The judge entered recitations that 1. Doak announced ready; 2. the parties agreed to the terms of the order; and 3. the court examined the record, the parties’ agreement and heard evidence. The trial court entered a 36-page order that set out terms related to the children, Doak’s child support obligations, and the date by which Doak had to move out of the family home. The order also included more than three pages of detailed injunctive provisions. No other action was taken until May 22, when a default divorce was entered for Lisa without notice to Doak. Doak filed a written answer to Lisa’s original petition on June 6. On June 20 he filed a pleading asking for a new trial and for the May 22 order to be vacated. Doak filed an affidavit denying having any prior notice of the final hearing, though the affidavit did not say why he didn’t file an answer prior to the entry of the default judgment. Nor did the affidavit offer a defense to the divorce or explain how Lisa would be unharmed if a new trial were granted. Doak also included a letter from his newly retained lawyer to Lisa’s lawyer on May 13 and a statement of facts from the May 22 hearing, which included Lisa’s request to set child support at the same amount set by the temporary orders. Lisa did not file a response to this pleading. The trial court denied the motion for new trial and the request to vacate the May 22 order. Doak appeals the denial of his motion for new trial. He argues that because he had “appeared” in the case, his due process rights under the 14th Amendment were violated when the default judgment hearing was held without notice to him, and he was entitled to have the default decree set aside. Alternatively, Doak argues that if the three-part test from Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124 (1939), applies, he was only required to show that his failure to appear at the final hearing was not intentional or the result of conscious indifference. HOLDING:Reversed and remanded. The court refers to LBL Oil Co. v. International Power Servs. Inc., 777 S.W.2d 390 (Tex. 1989), relied on by Doak, where the court said that once a defendant has made an appearance in a cause, he is entitled to notice of a trial setting as a matter of due process under the 14th Amendment. A challenge to the trial court’s jurisdiction was not viewed by the Texas Supreme Court in LBL as an appearance in the case. The court finds LBL applicable and that Doak made an appearance in the divorce suit when he attended the March 26 hearing. Whether he made an appearance depends on the nature and quality of the party’s activities in the case. Though Doak’s affidavit did not address his appearance, the temporary orders and Lisa’s testimony at the default hearing (included in Doak’s June 20 motions), showed that Doak attended court, announced ready and entered into an extensive agreement on temporary orders. On the other hand, there was no evidence to support a finding that Doak was only a passive observer in the proceedings. The court then considers whether Doak was required to fulfill the mandates of Craddock in order to have the default judgment set aside. The court notes that, while the Texas Supreme Court has required application of Craddock, it has also said that all three prongs of the Craddock test are not always applicable. The court cites cases where the second part of Craddock has yielded to due process concerns. The court rules that there is no reason why the third prong � equitable protection of the judgment-holding party � should not also yield for due process reasons. Because of the due process rights of Doak, who appeared at the March 26 hearing, the trial court abused its discretion in failing to set aside the default judgment and grant a new trial. OPINION:Phil Johnson, C.J.; Johnson, C.J., and Reavis and Campbell, JJ. DISSENT:Don H. Reavis, J. “Doak’s lack of notice of the default hearing was the product of his or his counsel’s failure to file an answer, and his counsel’s failure to timely file an answer is imputed to Doak. . . . Accordingly, I would hold that LBL is not controlling and that Doak was given a reasonable opportunity to be heard on the merits of his case.” Even if the trial court erred, it was harmless error because Doak did not carry his burden to demonstrate that the error probably resulted in an improper judgment.

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