Johnny O. Mamou v. Betty Sias ( 2011 )

Affirmed and Memorandum Opinion filed July 19, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-01154-CV

Johnny O. Mamou, Appellant

v.

Betty Sias, Appellee

On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 02-DCV-125268

MEMORANDUM OPINION

Appellant Johnny O. Mamou appeals the trial court’s default judgment in a suit to modify the parent–child relationship.  In his sole issue on appeal, appellant challenges the default judgment on the basis that he did not receive notice of the trial.  We affirm.

Background

On June 14, 2007, Betty Sias filed a petition to modify the parent-child relationship, seeking an increase in Mamou’s monthly child support obligation.  On January 25, 2010, Mamou, acting pro se, filed a counter-petition to modify the parent–child relationship, requesting that he have the right to establish the primary residence of the child.  The trial court held the trial on the matter on October 19, 2010.  Mamou, however, did not appear.  On October 25, 2010, the trial court signed a default judgment, increasing Mamou’s child support from $740.00 per month to $1,233.48 per month and ordering Mamou to pay retroactive child support in the amount of $19,245.72.  The trial court sent Mamou notice of the court’s judgment on October 27, 2010.  Mamou did not file a motion for new trial or otherwise seek to set aside the judgment in the trial court.  Instead, on November 12, 2010, Mamou filed a notice of appeal. 

Analysis

In his sole issue in this appeal, Mamou contends that there is no evidence that he received proper notice of the trial date. Specifically, Mamou asserts that he was not “duly notified” of the trial date because he had received conflicting notices regarding the trial date. 

In order for a defendant to have a default judgment set aside, he must demonstrate that (1) his failure to appear was not intentional or the result of conscious indifference; (2) there is a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury to the opposing party.  Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939).  The Craddock requirements apply to post-answer default judgments.  Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam); Dir., State Emp. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).  Once a defendant has made an appearance in a cause, he is entitled to notice of the trial setting as a matter of due process under the Fourteenth Amendment to the United States Constitution.  LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988)).  If the defendant did not receive notice of a trial setting, he satisfies the first prong of Craddock.  Ashworth v. Brzoska, 274 S.W.3d 324, 329 (Tex. App.—Houston [14th Dist.] 2008, no pet.).[1] 

It is undisputed that Mamou received the court’s notice of the October 19, 2010 trial setting from Sias’s attorney—the certified letter which contained the notice of the October 19, 2010 trial setting is part of the record.  However, Mamou contends that he was misled into believing that the case had been reset.  Specifically, Mamou argues on appeal that Sias’s attorney sent him a document apparently provided by the 328th District Court entitled, “Are You Ready For Final Trial?”  The document, according to Mamou, is a checklist suggesting that “[i]f you can’t check off each of these items, then you are not ready for trial and your case will be reset.”[2]  However, because the document upon which Mamou relies is attached to his brief and is not part of the appellate record, we may not consider it.  See Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 286 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 n. 2 (Tex. App.—Houston [14th Dist. 2008, no pet.). 

Moreover, after Mamou received notice of the judgment, he did not file a motion for new trial, but, instead, filed his notice of appeal on November 12, 2010, eighteen days after the October 25, 2010 judgment.  Therefore, Mamou knew about the judgment within the thirty-day period in which to file a motion for new trial.  See Tex. R. Civ. P. 329b. 

A motion for new trial to set aside a default judgment is a complaint on which evidence must be heard.  Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (citing Tex. R. Civ. P. 324(b)(1)).  When extrinsic evidence is necessary to challenge a default judgment, a motion for new trial filed in the trial court is a prerequisite to complaining on appeal that it should be set aside.  Llorance v. Sohi, No. 01-07-00840-CV, 2008 WL 1747921, at *3 (Tex. App.—Houston [1st Dist.] Apr. 17, 2008, no pet.) (mem. op.); In re J.D.K., No. 2-06-280-CV, 2007 WL 2792487, at *1 (Tex. App.—Fort Worth Sept. 27, 2007, no pet.) (mem. op.); see also In re Marriage of Collins & Tipton, No. 07-06-0314-CV, 2008 WL 3930559, at *2 (Tex. App.—Amarillo Aug. 27, 2008, no pet.) (mem. op.) (holding that, because the appellant failed to file a motion for new trial, he failed to preserve complaint on appeal that the trial court erred by entering a default judgment).  This is so the trial court has the opportunity to consider and weigh evidence.  Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per curiam); see also Harris v. Burks, No. 01-06-00128-CV, 2007 WL 1776048, at *2 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.) (mem. op.) (explaining that complaints regarding a trial court’s failure to set aside a default judgment must be raised in a motion for new trial because the trial court must hear evidence to determine whether the Craddock factors have been met). 

Mamou frames his complaint of lack of notice as a no-evidence issue.  An appellant may raise complaints concerning the legal sufficiency of the evidence in a nonjury trial for the first time on appeal.  Tex. R. App. P. 33.1(d); In re J.P., 296 S.W.3d 830, 835 n.7 (Tex App.—Fort Worth 2009, no pet.).  However, Mamou seeks the reversal of a default judgment—a complaint requiring a motion for new trial to preserve error for appellate review.  By failing to file a motion for new trial or otherwise seeking to set aside the default judgment in the trial court, Mamou has waived for appellate review his complaint that the trial court entered a default judgment without proper notice of the trial.  See Washington v. Taylor, No. 01-08-00255-CV, 2010 WL 1571201, at *2 (Tex. App.—Houston [1st Dist.] Apr. 8, 2010, no pet.) (mem. op.) (holding that that the appellant waived his complaint that he did not receive notice of hearing where he did not file a motion for new trial); see also In re Marriage of Collins & Tipton, 2008 WL 3930559, at *2; Llorance, 2008 WL 1747921, at *3; In re J.D.K., 2007 WL 2792487, at *1.  We overrule appellant’s sole issue. 

Having overruled appellant’s sole issue in this appeal, we affirm the judgment.

                                                                        /s/        Sharon McCally

                                                                                    Justice

Panel consists of Justices Frost, Jamison, and McCally.

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[1] If the defendant did not receive notice, it is also not necessary for him to prove the existence of a meritorious defense.  Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam).  This court has recognized that whether a defendant who receives no notice of a trial setting must satisfy the third Craddock prong appears to be the subject of disagreement among Texas appellate courts.  See Mallory v. Mallory, No. 14-06-01009, 2009 WL 1886110, at *2 n.3 (Tex. App.—Houston [14th Dist.] July 2, 2009, no pet.) (mem. op. on reh’g); Ashworth, 274 S.W.3d at 329 n.4.  However, we need not address that issue in this appeal. 

[2] Emphasis in the original.