Sunday, December 10, 2017

Attack on default judgment after trial no-show successful on appeal - Midland Funding v. Rosa Gonzales (Tex.App. - Eastland Sep. 21, 2017)

When the plaintiff does not show up for trial, the case gets dismissed for want of prosecution or as it’s called in Texas – DWOPPED [pronounced “dee-whopped”]; when the Defendant does not appear, a default judgment will typically be entered, assuming the Plaintiff supports its claim with evidence, normally in the form of a business records affidavit in debt collection cases, rather than a live witness. When the no-show is by mistake, a post-judgment motion may be filed within thirty days to get the case re-opened. What does it take? A recent case opinion (see below) addresses the scenario where the reason for the no-show is lack of notice of the trial setting, and how that fact is established to revive the case. What's unusual here is that the challenged default judgment was entered against Midland Funding, a debt buyer, rather than in its favor, which is much more common. The default judgment was on a counterclaim asserted by the defendant in the collection action, and Midland claimed that it had not received proper notice. The trial court denied Midland's motion for new trial, but the court of appeals reversed and remanded the case to the trial court.  


No. 11-16-00044-CV.
Opinion filed September 21, 2017.
Michael James Young, Kristy Gabrielova, Brian Edward Staley, Sandy Huynh, Katharine Allen, Timothy Lee Elder, for Midland Funding LLC, Appellant.
Michael Hall, for Rosa Gonzales, Appellee.

On Appeal from the 32nd District Court, Nolan County, Texas, Trial Court Cause No. 19,523.



Midland Funding LLC appeals the trial court's denial of a motion for new trial, which Midland Funding filed after the trial court entered a post-answer, default judgment against it because it failed to appear at trial. Attached to Midland Funding's motion for new trial was the affidavit of Brian Staley, one of five attorneys listed as counsel for Midland Funding on its petition. In his affidavit, Staley stated that Midland Funding did not appear at trial because neither he nor his office received the trial court's change of venue notice or a trial notice. Gonzales submitted two affidavits in response to Midland Funding's motion for new trial and Staley's original affidavit.

During the hearing on the motion for new trial, the trial court found that Staley's affidavit was conclusory and struck it from the record. The trial court then found insufficient evidence to support Midland Funding's motion and denied it because Staley's affidavit was the only evidence that Midland Funding had attached to its motion; Midland Funding then appealed. We reverse and remand.

I. Background Facts and Procedural History

On September 8, 2014, Midland Funding sued Rosa Gonzales in the Nolan County Court at Law and alleged that she had an unpaid credit card account. After Gonzales received service of process, she timely filed an answer and a counterclaim that included discovery requests. Midland Funding never responded to the discovery, which included requests for admissions. In accordance with a standing order, on October 2, 2014, Pat McGowan, the Nolan County Clerk, transferred the case to the 32nd District Court and provided written notice to Staley.

Almost a year later, on September 14, 2015, Becky Stewart, the court administrator for the 32nd District Court, sent Staley a written notice by mail and sent an e-mail notice to Gonzales's attorney, Lance Hall, that a nonjury trial was set for November 6, 2015. On November 6, 2015, Gonzales and her counsel personally appeared and announced ready for trial, but neither Midland Funding nor its counsel were present. The trial court held that Midland Funding did not present any evidence in support of its claim against Gonzales and ordered that Midland Funding take nothing from her.

The trial court also found that Midland Funding had deemed admissions, heard evidence from Gonzales on liability and damages, and heard from Hall on attorney's fees. The trial court then awarded Gonzales damages, as well as reasonable and necessary attorney's fees.

Midland Funding became aware of the judgment on December 1, 2015, and in response, on December 4, 2015, it served a motion for new trial and motion for reinstatement on all parties. The motion was file-stamped by the district clerk on December 30, 2015. Gonzales filed a response to the motion on February 2, 2016, and provided affidavits from Stewart and Hall. Stewart stated that, on September 14, 2015, she mailed notice of the nonjury trial setting for November 6, 2015, to Staley at the mailing address that he provided when he filed the suit and that he did not e-mail the notice because Staley did not provide an e-mail address to her. Hall stated that he received the trial notice on September 14, 2015, from Stewart via e-mail.[1]

On February 2, 2016, the trial court heard the motion for new trial; Hall appeared for Gonzales, and a lawyer from Lubbock, Joseph Aguilar, also appeared.[2] At the hearing, Hall objected to the affidavit of Staley, Midland Funding's lead counsel, because it was conclusory. The affidavit, the only evidence Midland Funding presented at the hearing, indicated that neither Staley nor his office received notice of the venue change, the trial setting, or the default judgment. The trial court agreed with Gonzales, found the affidavit to be conclusory, and struck it from the record. With no other evidence presented to it by Midland Funding, and in light of Stewart's and Hall's affidavits, the trial court denied the motion for new trial.

On February 3, 2016, Midland Funding appealed the trial court's denial of its motion for new trial. This court abated the appeal to permit Midland Funding to obtain a finding from the trial court that it acquired actual notice of the judgment on December 1, 2015. See TEX. R. CIV. P. 306a; TEX. R. APP. P. 4.2(a). As part of Midland Funding's Rule 306a motion, it filed additional affidavits from Midland Funding's staff counsel, including Staley and another lawyer, Tim Elder. In addition to addressing the date that they acquired actual notice of the judgment, Staley averred that he had checked the files at their office and did not find any misfiled notices or mail, and both Staley and Elder averred that they had never received notice from the court clerk of the venue change, the trial setting, or the default judgment.

II. Standard of Review

An appellate court reviews a motion for new trial for abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The requirements set forth in Craddock v. Sunshine Bus Lines,[3] governing the setting aside of no-answer default judgments, also apply to post-answer, default judgments. Lopez v. Lopez,757 S.W.2d 721, 722 (Tex. 1988) (citing Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987)Grissom v. Watson, 704 S.W.2d 325, 326 (Tex. 1986)).

"Due process requires `notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.'" Ibrahim v. Young, 253 S.W.3d 790, 805 (Tex. App.-Eastland 2008, pet. denied) (quoting Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)). Failure to give notice to a party of a trial setting violates the due process requirements of the United States Constitution. Mabon Ltd. v. Afri-Carib Ents., Inc., 369 S.W.3d 809, 813 (Tex. 2012)LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989)Lopez, 757 S.W.2d at 723 (citing Peralta, 485 U.S. at 84). It is also grounds for reversal of a default judgment. See Trevino v. Gonzalez, 749 S.W.2d 221, 223 (Tex. App.-San Antonio 1988, writ denied).

III. Analysis

In a single issue on appeal, Midland Funding asserts that it is entitled to a new trial because the trial court deprived it of due process when it failed to send Midland Funding notice of the trial setting. See Mabon Ltd., 369 S.W.3d at 812-13LBL Oil Co., 777 S.W.2d at 390-91Lopez, 757 S.W.2d at 723. As a preliminary matter, we need to review what evidence was before the trial court at the motion for new trial hearing to determine if the trial court abused its discretion when it struck Staley's original affidavit from the record and denied the motion for new trial.

A. Staley's subsequent affidavit and Elder's affidavit were not before the trial court, but Staley's original affidavit should have been because it was not conclusory.

Gonzales asserted that Staley's and Elder's affidavits filed as part of Midland Funding's Rule 306a motion were not before the trial court when it heard the motion for new trial and also asserts that Staley's original affidavit was conclusory. We note that Staley's subsequent affidavit and the affidavit of Elder were filed nearly three weeks after the motion for new trial hearing and the trial court's denial of the motion. This court cannot consider evidence filed after the trial court's consideration and denial of a motion for new trial. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992)Hernandez v. Saldivar, No. 04-15-00691-CV, 2016 WL 2584657, at *3 n.3 (Tex. App.-San Antonio May 4, 2016, no pet.) (mem. op.) (holding that the trial court could not consider affidavits establishing the appellant's lack of conscious indifference because the evidence was not before the trial court during the time the motion for new trial was pending); see also L.B. Foster Co. v. Glacier Energy, Inc., 714 S.W.2d 48, 49 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.) (holding untimely filed amended motion and evidence could not be considered). As a result, we only need to decide whether Staley's original affidavit was conclusory.
As to Staley's original affidavit, Gonzales claims that Staley only stated conclusions without supporting facts. A conclusory statement is objectionable because it lacks supporting, underlying facts. Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex. App.-Houston [1st Dist.] 2009, pet. denied)see Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). Staley's affidavit provided the following:
My name is Brian Staley. I am of sound mind, over eighteen years of age, and competent to make this affidavit.
I am staff counsel for MIDLAND FUNDING LLC, Plaintiff in this case. Our office did not receive notice of trial for November 6, 2015.
I first became aware that the case had gone to trial on December 1st, 2015.
Our office did not receive notice of the judgment from the clerk, nor any notice regarding the transfer of the case from County Court to District Court.
At the hearing on the motion for new trial, the following exchange occurred about Staley's affidavit:
THE COURT: I mean it seems to jump to a conclusion, does it not?
[PLAINTIFF'S COUNSEL]: Absolutely I would agree with that. I mean, like I said, I was just put on this case here last minute.
THE COURT: I realize you're kind of behind the eight ball but —
[PLAINTIFF'S COUNSEL]: I didn't draft the affidavit. Of course, I would have put more details in it. But, he said that his office didn't receive notice of the judgment.
We disagree that Staley's original affidavit is conclusory because Staley stated that neither he nor his office received the notice, which rebutted the presumption of service under Rule 21a. See TEX. R. CIV. P. 21a; see also Cliff, 724 S.W.2d at 780.

A presumption arises under Rule 21a "when notice of trial setting properly addressed and postage prepaid is mailed, that the notice was duly received by the addressee." Cliff, 724 S.W.2d at 780. However, that presumption may be rebutted with proof. Id. As Midland Funding's counsel at the motion for new trial hearing noted, Staley's original affidavit could have contained more facts, but nonetheless, Staley stated a factual matter in his affidavit — that he did not receive something. He did not merely state a legal conclusion about the effect of that nonreceipt. Accordingly, we hold that the trial court should have considered Staley's original affidavit.

B. The trial court abused its discretion when it denied the motion for new trial because Stewart's and Hall's affidavits failed to adduce evidence that Midland Funding actually received the venue change and trial notices.

Midland Funding asserts that the trial court abused its discretion because Midland Funding established that it never received the trial notice. A person who is not notified of a trial setting and consequently suffers a default judgment need not establish a meritorious defense or lack of prejudice to the opposing party to be entitled to a new trial. Lopez, 757 S.W.2d at 723 (citing Peralta, 485 U.S. at 85); Leon's Fine Foods of Tex., Inc. v. Merit Inv. Partners, L.P., 160 S.W.3d 148, 155 (Tex. App.-Eastland 2005, no pet.). To satisfy the first prong of Craddock, the defaulting party must establish that his failure to appear was due to a mistake or accident rather than the result of conscious indifference, which is defined as the failure to take some action that would seem obvious to a reasonable person under similar circumstances. Tex. Sting, Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 650 (Tex. App.-San Antonio 2002, pet. denied). The historical trend in default judgment cases is toward the liberal granting of new trials. Id. Thus, where the elements of the Craddock test are satisfied, it is an abuse of discretion for the trial court to deny a motion for new trial. Id. (citing Dir., State Emps. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)).

We note that a trial notice properly sent in accordance with Rule 21a raises a presumption that notice was received. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005)Cliff, 724 S.W.2d at 780see TEX. R. CIV. P. 21a. Staley's original affidavit rebutted the Rule 21a presumption because he stated that neither he nor his office received the notice of the venue change or trial date. In response, Stewart's and Hall's affidavits explained that notice of the trial setting was sent to the parties and received by Gonzales's counsel, Hall, via e-mail. The trial court may decide the motion for new trial even though the affidavits are not introduced into evidence. See Evans, 889 S.W.2d at 268 (citing Strackbein, 671 S.W.2d at 38-39). In addition, where no findings of fact or conclusions of law were requested or filed, as in this case, the judgment must be upheld on any legal theory that finds support in the evidence. See Strackbein, 671 S.W.2d at 38.

Stewart attested that she normally sends notices by e-mail but that she will use the United States postal service if no e-mail is provided. She also testified that she routinely used this method for service of notices and presumed that she did so in this case. Neither she nor Hall adduced evidence that Midland Funding had actually received the notices.

We disagree with Gonzales's assertion that Stewart's and Hall's affidavits rebutted Staley's original affidavit because neither Stewart nor Hall provided evidence that Midland Funding had actually received the notice. Those affidavits simply established that Stewart sent the notices and that Hall received them. Staley averred that he and his office never received the notices.

Due process concerns require reversal when a party never receives notice of the trial setting. See Mathis, 166 S.W.3d at 746Cliff, 724 S.W.2d at 780.

We sustain Midland Funding's sole issue on appeal.

IV. This Court's Ruling

We reverse the judgment of the trial court and remand the cause to the trial court for further proceedings consistent with this opinion.
[1] Hall stated in his affidavit that Midland Funding had failed to appear for trial in another Nolan County justice court suit, Cause No. 5706, Midland Funding, LLC v. Patricia Martin, where Staley was its counsel and Hall represented Martin. Hall also explained that Midland Funding is a defendant in a suit filed by the Texas Attorney General that alleges unlawful practices, including filing thousands of false affidavits, Cause No. 2011-40626 in the 165th District Court of Harris County.
[2] Aguilar was retained by Midland Funding approximately three hours before the hearing and was not affiliated with Midland Funding's counsel from Houston, including Staley.
[3] 133 S.W.2d 124 (Tex. 1939).


Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) ("Testimony by Lockwood's counsel that notice was sent did not contradict Mathis's testimony that notice was never received.").

166 S.W.3d 743 (2005)

Mary MATHIS, Petitioner,
Joseph F. LOCKWOOD, Respondent.

No. 04-0516.
Supreme Court of Texas.
June 17, 2005.

Mary Mathis, pro se.

Rhonda F. Hunter, for Joseph F. Lockwood.


Mary Mathis, appearing pro se, appeals the trial court's refusal to set aside a post-answer default judgment against her. The court of appeals affirmed, holding Mathis failed to overcome a presumption that she received notice of the trial setting. 132 S.W.3d 629, 632. Finding neither presumption nor evidence to support this conclusion, 744*744 we reverse and remand to the trial court for a new trial.
Mathis and her two children lived with respondent Joseph Lockwood for some period of time before suit. When the relationship soured, Lockwood filed suit seeking a declaration that he and Mathis were not common-law spouses, and the return of property he claimed Mathis had stolen. Mathis apparently filed an answer, though it is not in the record.

The case was set for trial December 13, 2002, before a visiting judge. Mathis did not appear. After brief testimony from Lockwood, a post-answer default judgment was rendered in his favor.
On January 9, 2003, Mathis filed a "Motion for a Request Rehearing" asserting she never received notice of the December 13th trial. She testified to the same effect at a hearing on the motion before the court's presiding judge on February 4th. Conversely, Lockwood's counsel testified that notice was sent to Mathis's last known address and her former attorney. None of the witnesses were sworn, and while the reporter's record indicates Lockwood's counsel tendered a document to the judge at this hearing, none appears in the reporter's record.[1] The trial court refused to set aside the default judgment.
For many years, a post-answer default could be set aside only if a defendant proved three elements: (1) nonappearance was not intentional or the result of conscious indifference; (2) a meritorious defense; and (3) a new trial would cause neither delay nor undue prejudice. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987) (citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).
When the first element is established by proof that the defaulted party was not given notice of a trial setting, we have dispensed with the second element for constitutional reasons. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)).

For the same reasons, the court of appeals also dispensed with the third element. 132 S.W.3d at 631; accord In the Matter of the Marriage of Lisa Ann Runberg, 159 S.W.3d 194, 200 (Tex.App.Amarillo 2005, no pet.)In the Matter of the Marriage of Brenda May Parker, 20 S.W.3d 812, 817-18 (Tex.App.Texarkana 2000, no pet.). We need not reach that issue here, however, because in any event Mathis's sworn motion asserted that a new trial would not injure Lockwood, and nothing in the record establishes the contrary. Cliff, 724 S.W.2d at 779-80 (requiring new trial as "there is nothing in the record to show that a new trial will work an injury to [the plaintiff]"); see also Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994) (holding Craddock elements may be established by affidavit, even if not tendered as evidence at new trial hearing).[2]

Thus, the only question before us is whether Mathis established the first element. Her sworn motion for new trial asserted that she failed to appear at the December 13th trial because she never received notice of the setting. At the post-judgment hearing, Lockwood's counsel testified that notice was sent to Mathis, and 745*745 Mathis denied receiving it. While statements by neither were under oath, the oath requirement was waived when neither raised any objection in circumstances that clearly indicated each was tendering evidence on the record based on personal knowledge on the sole contested issue. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (holding attorney's unsworn statements tendered as evidence were sufficient absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.2005) (holding pro se litigants are governed by the same rules as attorneys).

The court of appeals held that the trial court as fact finder could have concluded that Mathis failed to overcome the presumption "that a trial court hears a case only after proper notice to the parties" and "that she was notified of the trial setting." 133 S.W.3d at 631-32 (citing Hanners v. State Bar of Tex., 860 S.W.2d 903, 908 (Tex.App.Dallas 1993, no writ)). We disagree that there were any such presumptions on the facts presented here.

It is true that notice properly sent pursuant to Rule 21a raises a presumption that notice was received. Tex.R. Civ. P. 21a; Cliff, 724 S.W.2d at 780. But we cannot presume that notice was properly sent; when that is challenged, it must be proved according to the rule.

Unlike service of citation, Rule 21a allows service of notices by anyone competent to testify. Tex. R Civ. P. 21a. When a party or attorney of record serves the notice (as occurred here), "[t]he party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument.Id. (emphasis added). Like any other contemporaneous business record, this certificate bears some assurance of trustworthiness as it was prepared as a matter of office routine before any dispute about notice arose.

"A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service." Id. Here, the record contains no certificate of service, no return receipt from certified or registered mail, and no affidavit certifying service. Instead, the only evidence of service in the record was the oral assurance of counsel. As the rule's requirements are neither vague nor onerous, we decline to expand them this far. As none of the prerequisites for prima facie proof of service were met, the court of appeals was incorrect in indulging a presumption that Mathis received the notice Lockwood's counsel sent.

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. See id. ("Nothing herein shall preclude any party from offering proof that the notice or instrument was not received...."). Even if the trial judge disbelieved Mathis's testimony, that would not provide affirmative evidence that service occurred. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512, 104 S.Ct. 1949, 80 L.Ed.2d 502 (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.").

No other alternatives established service. Notice to Mathis's former attorney was no longer notice to Mathis after her attorney withdrew. Tex.R. Civ. P. 10; see, e.g., Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex.1979) (holding pro se party was charged with notice of all pleadings served on him, or on his attorney prior to withdrawal). Notice to Mathis's last known 746*746 address was sent to Lockwood's home; Lockwood could not serve Mathis by serving himself. And counsel's statement at the trial that "I had my office call her and speak to her about today's hearing" shows no personal knowledge that notice was received, certainly none 45 days before trial. Tex.R. Civ. P. 245.

Citing Rule 21a's provision that notice may be sent to a party's last known address, the court of appeals held that litigants have a duty "to keep the court and parties apprised of their correct and current address." 132 S.W.3d at 631. Not all courts of appeals appear to agree. See Ewton v. Gayken, 130 S.W.3d 382, 384-85 (Tex.App.Beaumont 2004, pet. denied) (holding court clerk erred by sending dismissal notice to attorney's address of record rather than forwarding address printed on returned envelope). But even assuming there is such a duty, unless noncompliance was intentional rather than a mistake, due process requires some lesser sanction than trial without notice or an opportunity to be heard. Peralta, 485 U.S. at 85-86, 108 S.Ct. 896Cliff, 724 S.W.2d at 779.

Because the Craddock test was satisfied in this case, the trial court abused its discretion in refusing to set aside the default judgment against Mathis. Accordingly, without hearing oral argument, we grant Mathis's petition for review, reverse the court of appeals' judgment, and remand the case to the trial court for further proceedings consistent with this opinion. Tex.R.App. P. 59.1.

[1] At Mathis's request, the court of appeals ordered both the district clerk and the court reporter to supplement the record with any exhibits. Tex.R.App.P. 34.5(c), 34.6(d). Neither found any.

[2] While Mathis's motion for new trial was filed after the trial court's initial hearing on her "rehearing" motion, it was brought to the trial court's attention at a second hearing held about a month later.

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