in the Interest of L.H., a Child ( 2021 )

Reversed and Remanded and Memorandum Opinion filed August 3, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00960-CV
IN THE INTEREST OF L.H., A CHILD
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2014-60409
MEMORANDUM OPINION
Charles M. Hessel (Father) appeals the trial court’s final order in a suit
affecting the parent-child relationship, which was effectively a post-appearance
default judgment against Father because he claims did not receive notice of the
trial setting. See Tex. Fam. Code Ann. § 109.002(a) (appeals from final orders).
Because we conclude that the trial court abused its discretion when it denied
Father’s motion for new trial, we reverse the final order and remand the case to the
trial court for further proceedings.
I. BACKGROUND
Father and Vanessa Marie Hessel (Mother) divorced in 2016. The couple has
one minor child and, as part of the divorce decree, the trial court ordered Father to
pay child support. The final divorce decree addressed all other issues involving the
parent-child relationship. In September 2018, Mother filed a suit to modify the
parent-child relationship seeking to increase Father’s child support due to changed
economic circumstances. See Tex. Fam. Code Ann. § 156.001 (orders subject to
modification). Father, an attorney, filed an answer pro se and denied Mother’s
allegations. Father was then served, via e-file, with discovery requests to which
Father responded. However, after submitting the discovery, Father heard nothing
further from Mother or Mother’s counsel. Though Father’s answer contained his
mailing address and email address, Father contends that he did not receive any
notice of trial from the trial court or Mother’s counsel. Father claims he believed
that Mother had abandoned her claim once she received discovery from Father
disclosing a reduced income.
The trial court orally rendered a post-answer default judgment on July 22,
2019 increasing Father’s child support.1 Father filed a motion for new trial, verified
by affidavit, arguing that the final order should be set aside because he had no
notice of the July 2019 trial date. He stated in his affidavit that he first learned
about the oral rendition of judgment on August 1, 2019, when staff for Mother’s
attorney contacted Father about resetting a hearing (for entry of the final order).
Mother filed a response, though it was not verified or supported by any evidence.
The trial court denied Father’s motion for new trial following a hearing.
1
The trial court signed a written final order memorializing the judgment on September 3,
2019.
2
II. ANALYSIS
Father presents three issues on appeal. In issue 1, Father contends that the
trial court abused its discretion in denying his motion for new trial. He argues that
he was never notified of the July 2019 trial and that because he did not receive
notice, he did not have to meet all of the Craddock factors in order to receive a
new trial. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.
[Comm’n Op.] 1939). Mother has not appeared or filed any briefing in this appeal.
A. Standard of review
“A motion for new trial is addressed to the trial court’s discretion and the
court’s ruling will not be disturbed on appeal in the absence of a showing of an
abuse of discretion.” Cliff v. Huggins, 724 S.W.2d 778, 778–79 (Tex. 1987). A trial
court does not abuse its discretion when it denies a motion for new trial after
rendition of a default judgment unless the defaulting party proves the elements
identified in Craddock. See 133 S.W.2d at 126; Dolgencorp of Tex., Inc. v. Lerma,
288 S.W.3d 922, 926 (Tex. 2009) (per curiam). Under Craddock, the party against
whom default was rendered must show that (1) his failure to appear was not
intentional or the result of conscious indifference, (2) he has a meritorious defense,
and (3) the granting of a new trial will not operate to cause delay or injury to the
opposing party. See Cliff, 724 S.W.2d at 779. And when the factual allegations in a
movant’s affidavit are not controverted, it is sufficient if the motion and affidavit
provide factual information that, if taken as true, would negate intentional or
consciously indifferent conduct. See In the Matter of Marriage of Sandoval, 619
S.W.3d 716, 721 (Tex. 2021). Generally, some excuse, although not necessarily a
good one, will suffice to show that a defendant’s failure appear to was not
intentional or the result of conscious indifference. See Sutherland v. Spencer, 376
S.W.3d 752, 755 (Tex. 2012).
3
If a party proves the first element under Craddock by establishing that he
was not given notice of a trial setting, a court may dispense with the second and
third elements. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (noting that
(a) the second Craddock element is obviated and (b) several courts of appeals
dispense with proof of the third Craddock factor in post-answer default judgments
when no notice was given to the nonappearing defendant); Ashworth v. Brzoska,
274 S.W.3d 324, 329 (Tex. App.—Houston [14th Dist.] 2008, no pet.).2 The law
prefers for cases to be resolved on their merits whenever possible, rather than by
default. Ashworth, 274 S.W.3d at 329. We presume a trial court will only hear a
case after proper notice has been given to the parties. Id. Failing to give notice to a
party of a trial setting violates the due process requirements of the United States
Constitution. LBL Oil Co. v. International 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, 84 (1988); see U.S. Const. amend. XIV, § 1. In fact, “[a] post-answer
default judgment will only be valid if the defendant received notice of the default
judgment hearing.” $429.30 v. State, 896 S.W.2d 363, 366 (Tex. App.—Houston
[1st Dist.] 1995, no writ). Father therefore is entitled to reversal and remand if he
appeared in the case but had no notice of the trial setting on Mother’s suit to
modify the parent-child relationship.
2
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-CV, 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. But see Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988); In re
Marriage of Parker, 20 S.W.3d 812, 818 (Tex. App.—Texarkana 2000, no pet.) (“Because
equitable principles and due process considerations are involved, it cannot be said that any injury
the plaintiff suffers from a new trial is greater than the injury the defendant suffers from not
having actual or constructive notice of the first trial. This is especially true in view of the fact
that a conscientious plaintiff can undertake to notify the defendant of an initial trial setting.”).
4
B. No evidence that Father received notice
The question before this court is whether Father proved that he did not
receive notice of the trial setting. Father filed an affidavit attesting that he did not
receive notice of the trial setting and he reiterated this lack of notice at the hearing
on the motion for new trial. In her response to Father’s motion for new trial,
Mother argued that Father received notice of the July 2019 trial setting. Mother’s
response made the following arguments:
[Father] admits in his affidavit that he is a lawyer and is fully aware of
how to use the Harris County District Clerk’s website. He had notice
of the trial date sent to him by opposing counsel on July 11, 2019 by
certified and regular mail 11 days before a default judgment was taken
and his failure to appear was wholly intentional and not due to a
mistake or an accident [Father] deliberately did not file a response so
as to injure [Mother].3
3
Counsel for Mother also made the following similar arguments at the hearing on
Father’s motion for new trial, but clarified no notice was sent via regular mail:
THE COURT: Okay. So for some reason this case was reset to July 22nd. And
didn’t I have you --
[COUNSEL FOR MOTHER]: You did. You heard this case and asked me -- and I
had sent him certified mail and a copy of the scheduling order and have received
it back. And you asked me to when I filed the default to go ahead and file my
notice, and so the notice was filed the day afterwards, but it reflected that I had
sent it to him previously.
THE COURT: And what was the return on it?
[COUNSEL FOR MOTHER]: I got this letter back. I sent it --
THE COURT: But you sent it regular mail as well?
[COUNSEL FOR MOTHER]: No, Your Honor, I did not. I sent an e-mail. Part of
the problem is Mr. Hessel is also an attorney.
THE COURT: Okay.
[COUNSEL FOR MOTHER]: So his e-mail address was being used as well as his
mailing address. So this case was originally set on July 8th, and there was a
scheduling order sent out and he wasn’t here and it wasn’t clear how it was sent to
him.
So we reset it again, and the court sent him notice and I sent him notice. I sent
5
However, Mother did not attach any evidence to her motion supporting these
assertions, including the certificate of service for the notice of trial reset sent to
Father.4
Under Rule 21a, all notices other than the citation—including notice of trial
setting—may be served in person, by mail, by commercial delivery service, by fax,
by email, or by another manner approved by the trial court. Tex. R. Civ. P.
21a(a)(2). Service by mail is complete upon deposit of the document, postpaid and
properly addressed, in the mail. Tex. R. Civ. P. 21a(b)(1). If notice is properly
served in this manner, Rule 21a creates a presumption that the notice was received
by the addressee. See Mathis, 166 S.W.3d at 745 (“[N]otice properly sent pursuant
to [r]ule 21a raises a presumption that notice was received.”); Cliff, 724 S.W.2d at
780. However, this presumption vanishes when evidence is introduced that the
notice was not actually received. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927
(Tex. 1999); Cliff, 724 S.W.2d at 780; Ashworth, 274 S.W.3d at 331 (citing
Mathis, 166 S.W.3d at 744–45). Even if we were to accept Mother’s unverified
him notice, the court sent him notice as you can see from your scheduling notice,
and I sent him notice too, and he did’t appear. So it was actually our second trial
notice.
Counsel for Mother advised the trial court the notice sent via certified mail was returned, which
corresponds with Father’s affidavit testimony stating he never received the notice sent via
certified mail. And at the hearing, Father also noted that Mother’s counsel sent email service to
an incorrect address.
4
Father also attached several documents to his appellate brief, including Mother’s
certificate of service for the notice of trial reset, dated July 10, 2019. The certificate of service
appears to be filed with the trial court; however, it does not appear in the appellate record. The
other documents attached by Father also appear to be documents generated by the trial court or
filed in the trial court. Texas Rule of Appellate Procedure 34.1 states that the appellate record
consists of the clerk’s record and, if necessary to the appeal, the reporter’s record. Tex. R. App.
P. 34.1. We cannot consider documents attached to briefs unless they were before the trial court
and are part of the record. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 n.2
(Tex. App.—Houston [14th Dist.] 2008, no pet.). Because the documents attached to Father’s
brief are not a part of the record, we cannot consider them on appeal. However, to the extent they
were before the trial court as part of its court records, they still would not provide any evidence
controverting Father’s statement that he did not receive notice.
6
statement that Father was sent notice on July 11, 2019, Mother did not submit any
evidence to the court to controvert Father’s affidavit that he did not receive the
notice. See Mathis, 166 S.W.3d at 745 (“Without this presumption, there was no
evidence that Mathis received notice of the trial setting. Testimony by Lockwood’s
counsel that notice was sent did not contradict Mathis’s testimony that notice was
never received.”). Even if the trial court disbelieved Father’s testimony, that would
not provide affirmative evidence that service occurred. Id. (citing Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984) (“When the testimony of
a witness is not believed, the trier of fact may simply disregard it. Normally the
discredited testimony is not considered a sufficient basis for drawing a contrary
conclusion.”)).
Here, there is no evidence in the record that appellant received notice of a
trial setting for July 22, 2019. See Ashworth, 274 S.W.3d at 330. Thus, unless
Mother presented evidence to controvert Father’s no-notice claim, a new trial was
required. See id. at 328–29. Father’s affidavit stating that he did not receive the
notice was uncontroverted; therefore we conclude that the trial court abused its
discretion by denying his motion for new trial.
We sustain Father’s issue 1.
C. Father’s request for dismissal of Mother’s lawsuit
In issue 2, Father argues that the trial court abused its discretion by failing to
follow or enforce the local rules regarding discovery and alternative dispute
resolution. In his motion for new trial, Father contends that Mother failed to follow
the local rules requiring the parties to mediate and disclose certain financial
information. Harris (Tex.) Family Trial Div. Loc. R. 4.4, 7.2; see Tex. R. Civ. P. 3a
(authority to make local rules for civil cases in trial courts and requirement that
those local rules be approved by Supreme Court of Texas). In addition to
7
requesting the trial court set aside the default, Father argued in his motion for new
trial that Mother’s suit should be dismissed for want of prosecution for failing to
follow the local rules.5 However, the only relief which a defaulting defendant may
secure by filing a motion for new trial is a setting aside of the default judgment. Ivy
v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). Therefore, the trial court did not
abuse its discretion in denying Father’s request that Mother’s lawsuit be dismissed
for failure to follow local rules.
We overrule Father’s issue 2.
D. Father’s motion to compel arbitration
In issue 3, Father contends that the trial court abused its discretion by
implicitly denying his motion to compel arbitration, which Father filed after the
trial court orally rendered judgment.
To preserve a complaint for appellate review, a party must make the
complaint to the trial court by a timely request, objection, or motion. Tex. R. App.
P. 33.1(a)(1). Preservation also requires one of three things: (1) an express ruling
by the trial court; (2) an implicit ruling by the trial court; or (3) a refusal to rule by
the trial court, coupled with an objection to that refusal by the complaining party.
5
In his motion for new trial, Father requested both the dismissal of Mother’s case, and,
alternatively, a new trial:
In this case, [Mother’s] failure to provide proper notice, failure to meet her duty to
prosecute, and her failure to comply with the Local Rules and mandates of the
Court demonstrate an apparent attempt to gain an unfair advantage by securing an
obviously erroneous and unfair default judgment by disregarding the Local Rules
and mandatory policies of the Court. If [Mother] would have complied with any
of the Local Rules or mandates from the Court’s Scheduling Order set out above,
[Father] would have had Notice that [Mother] had not abandoned her case and
that the case was proceeding to trial. However, because [Mother] did not comply
with the Court’s rules and mandates regarding mediation and disclosure of
financial information, [Father] did not have notice of trial. Accordingly,
[Mother’s] case should be dismissed for want of prosecution or, alternatively, at a
minimum, [Father] should be granted a new [trial] so that justice can be done.
8
Tex. R. App. P. 33.1(a)(2). There is no express ruling on Father’s motion to
compel arbitration in the record, nor is there an objection by Father to the refusal to
rule, if any, by the trial court. Thus, Father did not preserve error unless the trial
court implicitly denied his motion. See Bren-Tex Tractor 10 Co., Inc. v. Massey-
Ferguson, Inc., 97 S.W.3d 155, 161 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (overruling complaint because trial court made no ruling on issue).
An essential element of an implicit ruling is awareness by the trial court of
the request or motion that is supposedly being ruled on. See Strunk v. Belt Line Rd.
Realty Co., 225 S.W.3d 91, 99–100 (Tex. App.—El Paso 2005, no pet.); Jones v.
Ray Ins. Agency, 59 S.W.3d 739, 753 (Tex. App.—Corpus Christi–Edinburg 2001,
pet. denied); cf. Walker v. Gutierrez, 111 S.W.3d 56, 60 n.1 (Tex. 2003).
Ordinarily the filing of a motion, without more, does not give rise to an inference
that the trial court is aware of the motion or that it must act on the motion. In re
Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding);
Risner v. McDonald’s Corp., 18 S.W.3d 903, 909 (Tex. App.—Beaumont 2000,
pet. denied) (“A court is not required to consider a motion that is not called to its
attention.”). Here, Father does not explain why the trial court should have been
aware of Father’s motion or any need to act on a motion filed after judgment was
rendered.
On the facts of this case, we conclude that no implied ruling can be inferred.
Father did not file his motion to compel arbitration until after the trial court orally
rendered default judgment, and the record does not indicate he brought the motion
to the attention of the trial court at any time by setting it for submission. Therefore,
we conclude that Father did not preserve any error. Tex. R. App. P. 33.1(a)(2).
We overrule issue 3.
9
III. CONCLUSION
We reverse the trial court’s final order and remand the case to the trial court
for further proceedings. See Tex. R. App. P. 43.2(d).
/s/ Charles A. Spain
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
10