Cory Lee Hale v. Attorney General of Texas, Tiffany Amanda Randall ( 2023 )

Opinion issued February 28, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00111-CV
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CORY LEE HALE, Appellant
V.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS AND TIFFANY
AMANDA RANDALL, Appellees
On Appeal from the 387th District Court
Fort Bend County, Texas
Trial Court Case No. 18-DCV-255136
MEMORANDUM OPINION
In this case, the Office of the Attorney General of Texas (“OAG”) filed suit
to modify appellant Cory Lee Hale’s child support obligation. After being served
with citation, Hale, acting pro se, filed a letter with the district clerk. Hale did not
receive notice of the hearing on the modification petition. After the hearing, which
Hale did not attend, the trial court rendered a default order increasing Hale’s support
obligation.
In his sole issue on appeal, Hale argues that the letter he filed with the district
clerk constituted an answer to the modification proceeding and, therefore, he was
entitled to notice of the trial setting. The OAG agrees that Hale’s letter constitutes
an answer and that he was entitled to notice of the hearing. The OAG concedes that
rendition of the default order under these circumstances constitutes reversible error.
We reverse and remand.
Background
In 2011, the 156th District Court of Aransas County signed an order
establishing the parent-child relationship between Hale and his minor son, J.K.R.
(“John”). This order appointed Hale and Tiffany Randall, John’s mother, as joint
managing conservators, and designated Randall as the conservator with the
exclusive right to determine John’s primary residence. The court ordered Hale to pay
$216 per month in child support.
Hale, Randall, and the OAG returned to court several times over the years to
modify Hale’s child support obligation. In 2015, the trial court increased Hale’s child
support obligation to $285 per month. In 2018, the 156th District Court transferred
the proceeding to the 387th District Court of Fort Bend County.
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In 2019, the 387th District Court signed an agreed order reducing Hale’s child
support obligation to $0. The order made specific findings concerning Hale’s and
Randall’s monthly net resources and stated that the “percentage applied to CORY
LEE HALE’s net resources for child support is 0%.” A handwritten finding stated
that John was currently residing with Hale, and the parties had agreed “to deviate
from the child support guidelines amount of $694.00 monthly to $0.00 monthly.”
Hale did not request that Randall pay child support to him.
The OAG filed the underlying proceeding to modify the child support order
on July 8, 2021. The petition alleged that circumstances had materially and
substantially changed since rendition of the agreed child support order in 2019. The
OAG did not argue that Hale’s support obligation should be increased to a specific
amount; instead, it argued that “appropriate current child support should be ordered
pursuant to Texas Family Code Chapter 154.” Hale was served with citation on July
21, 2021.
On July 30, 2021, the Fort Bend County District Clerk filed a handwritten
letter from Hale, acting pro se. Hale addressed the letter to “the District Clerk of Fort
Bend County TX.” In the letter, Hale stated:
My name is Corey Hale, Father of [John]. I received a modification of
child support order on July 21, 2021. We agreed at the last court hearing
on July of 2019 that [John] would live with me here at [Hale’s address
in Ingleside, Texas]. My son [John] is now 17 years old and has been
with me the last 3 years. I don’t want to keep going back and forth to
court especially since [John] will be 18 years old next year. I want to
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be as involved in [John’s] life as his mom Tiffany Randall so I’m asking
that we split 50/50 custody of [John]. None of us live in Fort Bend
County and would like to transfer our case to San Patricio County
where I live or Nueces County where Tiffany Randall lives.
Hale signed the letter and provided his phone number and email address. He labeled
the letter with both the trial court cause number and the “OAG number,” a number
that had been present on every filing by the OAG and on orders signed by both the
156th and 387th District Courts.
The trial court held a hearing on the modification petition on November 3,
2021. Randall, her counsel, and an attorney from the OAG appeared at the hearing,
but Hale did not. In an order signed on November 5, 2021, the trial court ordered
Hale to pay $740 per month in child support. This order was entitled “Default Order
in Suit for Modification of Support Order,” and it recited that Hale, “although duly
notified, did not appear.”1
Hale, represented by an attorney, moved for a new trial. He argued that his
July 30, 2021 letter to the clerk constituted an answer. He further argued that he was
not given notice of the November 3, 2021 hearing on the OAG’s petition to modify.
He stated: “Respondent’s attorney contacted the Attorney General’s office and was
told no notice was given because no answer was filed. Respondent’s attorney has
verified with the District Clerk’s office that Respondent did indeed file the Answer
1
The trial court’s docket sheet entry for November 3, 2021, states: “Cory Hale served
but failed to appear.”
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on July 30, 2021.” Hale requested that the trial court grant a new trial, place the case
back on its docket, and then transfer the case to San Patricio County. As evidence,
Hale attached a photograph of his handwritten letter addressed to the clerk’s office.
Hale’s motion for new trial was overruled by operation of law. This appeal
followed.
Entitlement to Notice of Trial Setting
In his sole issue, Hale argues that the pro se letter that he filed with the Fort
Bend County District Clerk on July 30, 2021, constitutes an answer, and he was
therefore entitled to notice of the trial setting on the OAG’s modification petition.
He argues that because he did not receive notice of the trial setting, the trial court
erred by rendering a default modification order against him.
A. Governing Law
At any time after a defendant is required to answer, the plaintiff may take a
default judgment if the defendant has not previously filed an answer and if the return
of service has been on file with the clerk for ten days. TEX. R. CIV. P. 107(h), 239.
The trial court may not render a default judgment after the defendant has filed an
answer. In re $475,001.16, 96 S.W.3d 625, 627 (Tex. App.—Houston [1st Dist.]
2002, no pet.).
A party that files an answer is entitled to notice of a trial setting as a matter of
due process. Rodriguez v. Marcus, 564 S.W.3d 216, 221 (Tex. App.—El Paso 2018,
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no pet.); see Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988) (“Failure to
give notice violates ‘the most rudimentary demands of due process of law.’”)
(quoting Armstrong v. Manzo, 380 U.S. 545, 550 (1965)). Entry of a post-answer
default judgment against a defendant who did not receive notice of a trial setting or
a dispositive hearing constitutes a denial of due process. Mabon Ltd. v. Afri-Carib
Enters., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam); Rodriguez, 564 S.W.3d
at 221; see In re $475,001.16, 96 S.W.3d at 627 (“A post-answer default judgment
is valid only if the defendant has received notice of the default judgment hearing.”).
By filing an answer, the defendant places “in issue” the matters raised in the
petition, and the case becomes “contested.” Highsmith v. Highsmith, 587 S.W.3d
771, 777 (Tex. 2019) (per curiam). The trial court may set contested cases “with
reasonable notice of not less than forty-five days to the parties of a first setting for
trial.” TEX. R. CIV. P. 245. “The forty-five days’ notice provision is mandatory.”
Rodriguez, 564 S.W.3d at 221. If the defendant does not have notice of the trial
setting as required by Rule 245, “the post-answer default judgment should be set
aside because it is ineffectual.” Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.—
El Paso 2000, no pet.).
A responsive pleading may constitute an answer even if it does not comply
with the Texas Rules of Civil Procedure. See Smith v. Lippmann, 826 S.W.2d 137,
138 (Tex. 1992) (per curiam); see, e.g., TEX. R. CIV. P. 45, 83, 84, 85, 92. “Texas
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courts have always been reluctant to uphold a default judgment without notice where
some response from the defendant is found in the record.” Santex Roofing & Sheet
Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex. App.—San Antonio 1987,
no writ); see Sells v. Drott, 259 S.W.3d 156, 159 (Tex. 2008) (per curiam). For a
filing to constitute an answer, it “must contain sufficient information to place in issue
the claims made in the suit.” Guadalupe Econ. Servs. Corp. v. DeHoyos, 183 S.W.3d
712, 716 (Tex. App.—Austin 2005, no pet.)
In Smith v. Lippmann, the pro se defendant mailed a letter to the district clerk
stating that he had received and signed for the citation. See 826 S.W.2d at 137. The
defendant identified the case number, the parties, and the trial court, and he signed
the letter and provided his current address. Id. The Texas Supreme Court held that a
pro se defendant who timely files a signed letter that identifies the parties, the case,
and the defendant’s current address “has sufficiently appeared by answer and
deserves notice of any subsequent proceedings in the case.” Id. at 138.
The intermediate appellate courts, including this Court, have followed the
Texas Supreme Court’s holding in Smith and liberally construed responsive filings
by pro se defendants. In Beard v. Uriostegui, a panel of this Court concluded that a
pro se letter sent by the defendant to the trial court constituted a sufficient answer
that entitled the defendant to notice of the trial setting. See 426 S.W.3d 178, 182
(Tex. App.—Houston [1st Dist.] 2012, no pet.). Beard’s letter to the court identified
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the cause number, the style of the case, and the parties. Id. at 180. Although Beard
stated that she did not wish “to contest this suit against [her]” due to the cost of
attorney’s fees and court costs, she provided some information about the case and
stated that she intended to “bring all the according records to support all the above
facts with [her] to court when this case is settled in court.” Id. We concluded that
this was a “sufficient pro se answer pursuant to prevailing case law and common
sense.” Id. at 182 (quoting Harris v. Harris, 850 S.W.2d 241, 243 (Tex. App.—
Houston [1st Dist.] 1993, no writ)).
Likewise, our sister courts of appeals have repeatedly held that documents
filed by pro se defendants and addressed to the trial court or to the district clerk are
sufficient to constitute an answer.2 See, e.g., Rhojo Enters., LLC v. Stevens, 540
S.W.3d 621, 625 (Tex. App.—Beaumont 2018, no pet.) (concluding that motion to
dismiss filed by company constituted answer when filing contained proper style of
case, denied allegations asserted in petition, raised affirmative claims, and was
2
Courts have concluded that filings by pro se defendants that include “no statement
that could be construed as any type of response to the pleadings” are not sufficient
to constitute an answer. See Narvaez v. Maldonado, 127 S.W.3d 313, 318 (Tex.
App.—Austin 2004, no pet.) (noting that although defendant signed “return portion”
of citation and mailed it back to district clerk, this filing “did not even acknowledge
receipt or acceptance of the citation and petition” and “in no way responds to the
petition for divorce and cannot be construed as an appearance”); see also In re J.P.,
196 S.W.3d 434, 438 (Tex. App.—Dallas 2006, no pet.) (letter filed in response to
petition seeking to terminate parental rights did not constitute answer when letter
stated cause number and partial style but did not provide defendant’s address for
service and did not directly respond to termination allegations).
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signed and dated by company’s owner); In re R.K.P., 417 S.W.3d 544, 549, 551
(Tex. App.—El Paso 2013, no pet.) (pro se letter filed with trial court identified
cause number and parties and informed court that defendant had been admitted to
hospital, but intended to be physically present at court on day of her release);
Guadalupe Econ. Servs. Corp., 183 S.W.3d at 716–17 (letter signed by nonprofit
organization’s executive director identified plaintiffs, acknowledged receipt and
acceptance of citation, and responded to petition’s allegations); In re K.B.A., 145
S.W.3d 685, 690–91 (Tex. App.—Fort Worth 2004, no pet.) (letter filed with court
clerk was timely, signed, and notarized; it identified parties, children, cause number,
and parties’ current addresses; and it denied allegations of termination petition and
objected to court’s jurisdiction); Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d
655, 658 (Tex. App.—San Antonio 2002, no pet.) (letter to clerk of court filed by
company’s vice president identified cause number, defendant’s name and address,
and denied liability).
B. Analysis
The OAG filed a petition seeking to modify Hale’s child support obligation
and served him with a copy of this petition on July 21, 2021. On July 30, 2021, Hale,
acting pro se, filed a handwritten letter addressed to “the District Clerk of Fort Bend
County TX.” This letter stated:
My name is Corey Hale, Father of [John]. I received a modification of
child support order on July 21, 2021. We agreed at the last court hearing
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on July of 2019 that [John] would live with me here at [Hale’s address
in Ingleside, Texas]. My son [John] is now 17 years old and has been
with me the last 3 years. I don’t want to keep going back and forth to
court especially since [John] will be 18 years old next year. I want to
be as involved in [John’s] life as his mom Tiffany Randall so I’m asking
that we split 50/50 custody of [John]. None of us live in Fort Bend
County and would like to transfer our case to San Patricio County
where I live or Nueces County where Tiffany Randall lives.
Hale included the trial court cause number and the OAG “case number” that had
appeared on multiple prior filings and orders. Hale signed the letter and provided his
phone number and email address.
In addition to providing information allowing the district clerk to identify the
parties and the case, Hale acknowledged receipt of the modification petition and
responded to the allegations by stating that John had been living with him since the
last modified order was entered in July 2019. He expressed a desire to remain
involved in John’s life and share custody with Randall. Hale also requested that the
court transfer the case to either the county where he lived or the county where
Randall lived. We conclude that this filing by Hale was sufficient to constitute an
answer. See, e.g., Smith, 826 S.W.2d at 138; Guadalupe Econ. Servs. Corp., 183
S.W.3d at 716 (stating that answer “must contain sufficient information to place in
issue the claims made in the suit”).
Because Hale filed an answer to the OAG’s modification petition, he was
entitled to at least forty-five days’ notice of the trial setting on the petition. See TEX.
R. CIV. P. 245; Mabon Ltd., 369 S.W.3d at 813 (stating that entry of post-answer
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default judgment against defendant who did not receive notice of trial setting
constitutes violation of due process); Blanco, 20 S.W.3d at 811 (stating that if
defendant does not have notice of trial setting, post-answer default judgment should
be set aside as ineffectual). Hale argued in his motion for new trial and on appeal
that he did not receive notice of the trial setting. On appeal, the OAG agrees that
Hale “was entitled to a notice of the trial setting” because he filed a letter that was
sufficient to constitute an answer. The OAG therefore “concedes error in this
matter.”
We therefore conclude that the trial court erred by failing to set aside the
default modification order rendered against Hale on November 5, 2021. We sustain
Hale’s sole issue.
Conclusion
We reverse the trial court’s default modification order and remand the case to
the trial court for a new trial.
April L. Farris
Justice
Panel consists of Justices Kelly, Landau, and Farris.
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