in the Interest of G. M., Jr., a Child ( 2022 )

NO. 12-22-00137-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 321ST
IN THE INTEREST OF
§ JUDICIAL DISTRICT COURT
G.M., JR., A CHILD
§ SMITH COUNTY, TEXAS
MEMORANDUM OPINION
M.S. appeals the trial court’s default judgment, in which it modified its previous order in
a suit affecting the parent-child relationship in favor of Appellee and Counter Petitioner G.M.,
Sr. In one issue, M.S. argues that the trial court abused its discretion by granting a default
judgment against her and, thereafter, refusing to grant her motion for new trial. We reverse and
remand.
BACKGROUND
M.S. and G.M., Sr. are the parents of the child, G.M., Jr. On June 15, 2020, the trial
court rendered an order adjudicating parentage, by which it named M.S. and G.M., Sr. as joint
managing conservators of G.M., Jr. and named M.S. as having the right to establish G.M., Jr.’s
residence. On June 16, 2021, M.S. filed a petition to modify this order. G.M., Sr. filed an
answer and counter petition to modify. M.S.’s attorney withdrew on October 5.
A final hearing on the matter was held on February 15, 2022. M.S. did not appear at the
hearing, and the trial court granted a default judgment against her, in which it, among other
things, named G.M., Sr. as the person with the right to designate G.M., Jr.’s residence and
modified M.S.’s possession of and access schedule to G.M., Jr.
M.S. filed a motion for new trial on March 15, 2022. The trial court held a hearing on the
motion, at which M.S. testified that she never received a copy of her attorney’s motion to
withdraw and did not become aware that her attorney had withdrawn until February 18, 2022, the
day she learned that the default judgment was rendered against her. She further testified that
while she was living at 1135 Commerce Street in Tyler, Texas, which is the address listed on her
former attorney’s motion to withdraw, she did not receive the letter notice for the February 15
hearing sent by G.M., Sr.’s attorney, but that she would have been present in court had she
received such notice.
G.M., Sr. offered as exhibits, copies of the notice letters for the February 15 hearing,
which his attorney sent to M.S. by certified mail and regular mail respectively, as well as
unsigned return receipts and tracking information for the certified mailing. The tracking
information indicated that the certified letter mailing was unclaimed. 1 G.M., Sr. also presented
testimony from M.S.’s former roommate, Patricia Gibson, who testified that she saw M.S. open a
letter from an attorney’s office and that the letter contained a court date.
At the conclusion of the hearing, the trial court took the matter under advisement.
Ultimately, M.S.’s motion for new trial was overruled by operation of law, and this appeal
followed.
POST-ANSWER DEFAULT JUDGMENT
In her sole issue, M.S. argues that the trial court abused its discretion by granting a
default judgment against her and, thereafter, by refusing to grant her motion for new trial.
We review the trial court’s denial of a motion for new trial under an abuse of discretion
standard. Ashworth v. Brzoska, 274 S.W.3d 324, 328 (Tex. App.–Houston [14th Dist.] 2008, no
pet.); see Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). An abuse of discretion occurs if
the trial court acts without reference to any guiding rules or principles. Ashworth, 274 S.W.3d at
328.
A trial court must set aside a post-answer default judgment when the defendant satisfies
the test articulated by Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Cliff
v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). Under Craddock, the defendant must
demonstrate that (1) her 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
1
This hearing was recessed to allow Appellant the opportunity to obtain the reporter’s record from the
February 15 hearing. The hearing was reconvened on April 26, 2022.
2
operate to cause delay or injury to the opposing party. See Cliff, 724 S.W.2d at 779; Ashworth,
274 S.W.3d at 329.
The law presumes that a trial court will hear a case only after giving proper notice to the
parties. Tex. Dep’t of Pub. Safety v. Mendoza, 956 S.W.2d 808, 812–13 (Tex. App.–Houston
[14th Dist.] 1997, no pet.). Importantly, then, if the defendant did not receive notice of a trial
setting, she satisfies the first prong of Craddock and need not prove the existence of a
meritorious defense to be entitled to a new trial. 2 See Lopez v. Lopez, 757 S.W.2d 721, 723
(Tex. 1988). The law prefers for cases to be resolved on their merits wherever possible, rather
than by default. See Ashworth, 274 S.W.3d at 329. Accordingly, a trial court abuses its
discretion in denying a new trial to a defendant who satisfies the Craddock test. See Evans, 889
S.W.2d at 268; Cliff, 724 S.W.2d at 779; Ashworth, 274 S.W.3d at 329.
Discussion
At the hearing on her motion for new trial, M.S. testified that she did not receive notice of
the February 15 final hearing. She specified that she neither saw any notice letters, nor did she
sign for or refuse any such letters from the postal service. She also testified that she lived with
other people, who often would check the mail, and she denied that any of them gave her any
notices they retrieved from the mailbox. Lastly, she stated that had she known about the
February 15 hearing date, she would have been present at the hearing. Thus, unless G.M., Sr.
presented evidence to controvert M.S.’s lack-of-notice claim, a new trial was required. See
Ashworth, 274 S.W.3d at 329.
In an attempt to controvert M.S.’s testimony, G.M., Sr. presented evidence that two
notice letters were sent by his attorney by certified mail and regular mail respectively on or about
December 7, 2021, to the Commerce Street address listed as M.S.’s address by her former
attorney in her motion to withdraw as counsel. But the return receipt depicted in this exhibit is
unsigned, and the tracking information for the certified letter indicates that that letter ultimately
was “unclaimed.” G.M., Sr. also presented testimony from a legal assistant at his attorney’s
office, who spoke to M.S. prior to a mediation set for early February 2022. However, the
witness stated that she did not discuss the February 15 hearing with M.S. Lastly, G.M., Sr.
2
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 Ashworth v. Brzoska, 274 S.W.3d
324, 329 at n.4 (Tex. App.–Houston [14th Dist.] 2008, no pet.). However, we need not decide that issue here since
G.M., Sr. does not contend, nor does the record indicate, that a new trial will cause injury to him.
3
presented testimony from M.S.’s former roommate, Gibson. Gibson testified that she saw M.S.
open a letter from an attorney’s office and that the letter contained a court date.
Thus, the only testimony presented at the hearing which tends directly to contradict
M.S.’s testimony that she did not receive notice of the February 15 hearing is Gibson’s.
However, Gibson’s testimony is vague in most respects. For instance, she failed to note, even
generally, the time frame during which she observed M.S. with this letter. Instead, the only time
frame that can be established from the record is that this observation took place sometime
between April 2021 and the end of December 2021, the period Gibson, M.S., and others were
living together at the Commerce Street address. In light of this broad time frame, Gibson’s
description of the letter simply as being from “an attorney’s office” and setting forth a “court
date” is too indefinite to allow this court to conclude that such a letter was, in fact, the same
notice of the February 15 hearing admitted as an exhibit at the hearing on M.S.’s motion for new
trial. 3 Therefore, because G.M., Sr. failed to controvert M.S.’s testimony that she did not receive
notice of the February 15 final hearing, we hold that the trial court abused its discretion in not
granting M.S.’s motion for new trial. See id. M.S.’s sole issue is sustained.
DISPOSITION
Having sustained M.S.’s sole issue, we reverse the trial court’s default judgment
modifying its previous order in a suit affecting the parent-child relationship and remand the
cause for a new trial.
JAMES T. WORTHEN
Chief Justice
Opinion delivered December 21, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
The record also includes another letter sent by both certified and regular mail from G.M., Sr.’s attorney to
3
M.S. on December 7, 2021, in which he provides notice to her of a mediation scheduled for February 2, 2022.
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 21, 2022
NO. 12-22-00137-CV
IN THE INTEREST OF G.M., JR., A CHILD
Appeal from the 321st District Court
of Smith County, Texas (Tr.Ct.No. 19-2293-D)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that
the judgment be reversed and the cause remanded to the trial court for a new trial in
accordance with the opinion of this Court; and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.