Nonreceipt of Alternative-Service Citation Satisfies Craddock’s “No Conscious Indifference” Element Despite Knowledge of the Lawsuit

I. Introduction

JENNA TABAKMAN v. GARY TABAKMAN is a default-divorce case in which the Supreme Court of Texas applied the equitable Craddock framework to decide whether a spouse who did not appear before a default judgment was entitled to a new trial. After thirteen years of marriage and one child, Jenna Tabakman left the marital home and moved in with her parents. Gary Tabakman filed for divorce. After unsuccessful personal-service attempts, the trial court authorized alternative service, and a process server posted the citation and petition on the door of Jenna’s parents’ home. Gary later obtained an oral rendition of a default judgment.

The central issue was whether Jenna’s failure to answer was “intentional or the result of conscious indifference” under Craddock v. Sunshine Bus Lines, Inc., given her testimony that she did not know she had been served through alternative service and did not receive the posted citation. The lower courts held she failed the first Craddock element. The Texas Supreme Court reversed, holding she satisfied all three Craddock elements and was entitled to a new trial.

Note: The case header provided lists a date of December 22, 2025, while the opinion states “OPINION DELIVERED: December 5, 2025.”

II. Summary of the Opinion

The Court held that Jenna met the first Craddock element because her record-supported explanation—unawareness of alternative service and nonreceipt of a citation posted on the door—negated intentional or consciously indifferent conduct. Critically, the Court emphasized that knowledge of a pending lawsuit is not the same as knowledge that one has been served with citation, and that a defendant generally has no duty to act absent service, waiver, or citation.

The Court also reached and resolved the remaining elements. It concluded Jenna “set up” a meritorious defense (including a reimbursement claim involving alleged separate-property funds used as a down payment) and that she met the “no undue delay or injury” requirement because Gary did not demonstrate prejudice affecting his ability to present the merits at a new trial. The Court reversed the court of appeals and remanded for a new trial.

III. Analysis

A. Precedents Cited

Craddock v. Sunshine Bus Lines, Inc.: The foundational three-part test for setting aside a default judgment: (1) no intentional or consciously indifferent failure to answer; (2) a meritorious defense is “set up”; and (3) a new trial will not cause delay or injure the plaintiff. The Court treated Craddock as an equitable, policy-driven safeguard against the harshness of defaults.
In re Lakeside Resort JV, LLC: Used to frame the strong Texas policy disfavoring default judgments and preferring merits-based adjudication, as well as the instruction that doubts about defaults “must be resolved against the party who secured the default.” This policy lens influenced the Court’s receptiveness to Jenna’s explanation in an alternative-service setting.
In re Marriage of Williams: Cited for the proposition that the equitable Craddock doctrine applies to set aside default judgments (here, in a divorce context).
In re R.R.: Provided the articulation of how the first element is proven (factual assertions that negate conscious indifference, and that are not controverted), and reiterated that not understanding a citation after service and doing nothing is insufficient—language the Court distinguished because Jenna’s claim was nonreceipt/unawareness of service, not confusion after service.
Fid. & Guar. Ins. Co. v. Drewery Constr. Co.: Central to the Court’s analysis of “Why did the defendant not appear?” and its acceptance that “I didn’t get the suit papers” generally requires setting aside the default. The Court also relied on its “lost” papers analogy to explain why alternative-service nonreceipt may be hard to corroborate yet still credible when supported by contextual testimony.
Smith v. Babcock & Wilcox Constr. Co.: Reinforced that conscious indifference is more than negligence.
Milestone Operating, Inc. v. ExxonMobil Corp. and Sutherland v. Spencer: Both support the principle that the key is the absence of intent not to answer, and that “some excuse, although not necessarily a good one,” can suffice if it shows the defendant did not simply not care. The Court treated Jenna’s nonreceipt/unawareness of alternative-service citation as at least as compelling as “misplaced” or “forgotten” papers.
Bank One, Tex., N.A. v. Moody: Supported the proposition that a mistake of law can satisfy the first Craddock element, bolstering Jenna’s testimony that she expected in-person service.
Tex. Nat. Res. Conservation Comm'n v. Sierra Club and Wilson v. Dunn: Together grounded the Court’s distinction between knowledge of a lawsuit and the legal significance of a citation: absent service, waiver, or citation, “mere knowledge of a pending suit does not place any duty on a defendant to act.”
State Farm Fire & Cas. Co. v. Costley: Used to explain the nature of alternative service: it proves how and when service was executed but is not evidence of when the defendant received actual notice. This undercut Gary’s argument that the process server’s proper execution necessarily controverted Jenna’s claim of nonreceipt/unawareness.
Red Bluff, LLC v. Tarpley and Cliff v. Huggins: Invoked to reinforce the doctrinal difference between actual and constructive knowledge and to illustrate how presumptions of receipt can disappear when counterevidence is introduced (supporting the Court’s refusal to treat proof of posting as proof of actual notice).
Dolgencorp of Tex., Inc. v. Lerma: Controlled the “set up a meritorious defense” standard (prima facie, without weighing controverting evidence) and the burden-shifting on the third element.
Dir., State Emps. Workers' Comp. Div. v. Evans: Defined “injury” in the third Craddock element as prejudice to presenting the merits at a new trial, not general hardship or ordinary litigation expense. The Court used this to reject Gary’s asserted harms as insufficiently merits-prejudicial.
In re Marriage of Sandoval: Supported the conclusion that allowing litigation of a separate-property issue on new trial may not “upset” the underlying divorce framework (custody/support/division of community assets), reinforcing the “no injury” finding in this divorce setting.
Walker v. Baptist St. Anthony's Hosp.: Cited for the Court’s discretion in allocating scarce judicial resources and, separately, as support for deciding remaining elements in the interest of economy.

B. Legal Reasoning

1. The first Craddock element: knowledge of a lawsuit vs. awareness of service by citation

The Court’s key move was to separate (a) awareness that a divorce had been filed from (b) awareness that the legal mechanism triggering an answer deadline— citation—had been served. The opinion emphasized the function of citation under Texas Rule of Civil Procedure 99(c), including its warning that failure to answer can result in default judgment. It then anchored its conclusion in the rule that, under Wilson v. Dunn, absent service, waiver, or citation, mere knowledge of a pending suit creates no duty to act.

Applying that distinction, Jenna’s explanation—she expected personal service; she did not evade service; she did not receive the posted citation; and once she learned of the default proceedings she promptly filed an answer (before the decree was signed)—was enough to show she did not “know it was sued but did not care,” the formulation drawn from Fid. & Guar. Ins. Co. v. Drewery Constr. Co..

2. Treatment of “controverting” evidence in an alternative-service case

The lower courts treated the process server’s proof of posting as effectively controverting Jenna’s claim of nonreceipt/unawareness. The Supreme Court rejected that approach as misunderstanding what alternative service proves. Relying on State Farm Fire & Cas. Co. v. Costley, the Court explained that alternative service supplies proof of how and when service was executed, but does not itself prove when the defendant received actual notice. Because the record did not show Jenna actually received the posted citation or was informed of the posting, Gary did not “controvert” Jenna’s factual assertions in the way required to defeat the first element under In re R.R..

3. Second Craddock element: “set up” a meritorious defense is a low, prima facie threshold

Under Dolgencorp of Tex., Inc. v. Lerma, the defendant need only allege legally sufficient defensive facts and provide prima facie evidentiary support; courts do not weigh controverting evidence at this stage. The Court applied that standard to Jenna’s reimbursement theory relating to funds allegedly from her separate estate used for a down payment. Gary argued that Jenna could not ultimately overcome the community-property presumption (citing Texas Family Code § 3.003), but the Court held that argument improperly demanded a merits determination rather than a prima facie showing.

4. Third Craddock element: “injury” requires merits prejudice, not ordinary consequences of relitigation

The Court held Jenna met her initial burden by alleging no undue delay or injury, offering readiness for trial, and offering to cover reasonable default-related costs. The burden then shifted to Gary under Dolgencorp of Tex., Inc. v. Lerma. Gary’s claimed harms (fees, property-sale issues, and asserted strain on the child from undoing custody provisions) were not tied to a concrete disadvantage in presenting the merits at a new trial as required by Dir., State Emps. Workers' Comp. Div. v. Evans. The Court also found support in In re Marriage of Sandoval for the proposition that litigating a separate-property claim need not destabilize the underlying divorce structure.

C. Impact

Clarifies what defeats “conscious indifference” when alternative service is used: The opinion signals that, in alternative-service defaults, a defendant’s credible assertion of nonreceipt/unawareness—supported by contextual testimony—can satisfy Craddock even when the defendant knew the lawsuit existed. This narrows the ability of plaintiffs to defeat the first element by pointing merely to the defendant’s general awareness of the dispute or filing.
Limits “controversion” arguments based solely on proof of posting: Plaintiffs will still be able to show service was valid, but this case emphasizes that validity of service (for jurisdiction) does not automatically establish actual notice (for Craddock equitable relief). Litigants seeking to oppose Craddock relief may need evidence that the defendant actually received notice or learned of service in time to answer.
Strengthens the pro-merits policy in family-law defaults: The Court’s reliance on In re Lakeside Resort JV, LLC and its willingness to reach elements two and three underscore a preference for merits-based resolution even in divorce cases, where default decrees can have far-reaching effects (property division, custody, support).
Reinforces “injury” as merits-prejudice, not disruption: Parties opposing new trials must connect alleged harms to an impaired ability to litigate the merits, not simply to the inconvenience or instability that often follows reopening a judgment.

IV. Complex Concepts Simplified

Default judgment: A judgment entered because a defendant did not timely answer or appear, not because the court decided the dispute after hearing both sides.
Alternative service (TEX. R. CIV. P. 106(b)): A court-authorized substitute for personal delivery (e.g., posting on a door) used when traditional service attempts fail. It proves the method of service was carried out, but does not necessarily prove the defendant actually saw the papers.
Citation: The formal notice commanding a defendant to answer and warning of default consequences (TEX. R. CIV. P. 99(c)). The opinion treats citation as the legal trigger for a duty to respond.
“Conscious indifference”: More than negligence; it means the defendant knew it had been sued and effectively did not care about responding.
“Set up a meritorious defense”: Not a requirement to prove the defense will win; it is a prima facie showing that, if proven, the defense would matter legally.
“Injury” under Craddock’s third element: Not ordinary costs or inconvenience; it means prejudice that would impair the plaintiff’s ability to present the merits at the new trial (e.g., lost evidence, unavailable witnesses, or a procedural disadvantage).
Community-property presumption (TEX. FAM. CODE § 3.003): Property possessed during marriage is presumed community property unless proven otherwise by clear and convincing evidence. The Court held that this higher trial burden does not control the low “set up” threshold at the new-trial stage.

V. Conclusion

The Supreme Court of Texas held that a spouse’s failure to answer is not consciously indifferent when she credibly asserts she was unaware of service and did not receive a citation posted via alternative service—despite knowing a divorce had been filed—because knowledge of a lawsuit is not the same as notice by citation that triggers a duty to answer. The Court further reaffirmed that a meritorious defense need only be set up prima facie and that “injury” requires merits-prejudice, not generalized hardship.

Doctrinally, the decision strengthens Craddock as a robust remedial check on default judgments obtained after alternative service, and it provides concrete guidance on how courts should analyze nonreceipt claims without collapsing “valid service” into “actual notice” for equitable new-trial purposes.