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Gauger v. Gauger

Court of Appeals of Texas, Eleventh District

June 15, 2017

CHARLES ROBERT GAUGER, Appellant
v.
MARGIE TIDWELL GAUGER, Appellee

         On Appeal from the 259th District Court Shackelford County, Texas Trial Court Cause No. 2012-061

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          MEMORANDUM OPINION

          MIKE WILLSON JUSTICE

         Charles Robert Gauger appeals the entry of a post-answer default judgment against him in his divorce case. The trial court entered a default judgment because Gauger failed to appear at the final hearing. Gauger then retained counsel and filed a motion for new trial in which he alleged that he had a meritorious defense, that a new trial would not prejudice his ex-wife, and that he had not acted with conscious indifference when he failed to appear. Gauger claimed that he mistakenly believed that he had retained counsel either to appear for him at the hearing or to secure a continuance of the hearing. In his motion for new trial, Gauger requested a hearing on his motion. His motion for new trial was overruled by operation of law. See Tex. R. Civ. P. 329b(c).

         On appeal, Gauger argues that the trial court erred when it refused to hear or grant his motion for new trial because he had established all the elements of the Craddock[1] test and was entitled to a new trial. We affirm.

         I. Background Information and Procedural History

         Gauger and his wife, Margie Tidwell, married in 2005; seven years later, Tidwell filed for divorce. Gauger answered her petition for divorce, but during the early course of the proceedings, Gauger became ill, was hospitalized, and lapsed into a coma. Gauger awoke from his coma ten weeks later and began rehabilitation. Gauger had difficulties with communication, severe agitation, and panic attacks. After Gauger's release from his rehabilitation program in March 2013, he went to live in Illinois. Prior to January 29, 2015, Gauger substituted his trial counsel twice. One of his lawyers explained to the trial court that he could not effectively communicate with Gauger. Likewise, Tidwell had to replace her first lawyer when her first lawyer died. These changes in counsel on both sides, as well as Gauger's health issues, Gauger's residence in Illinois, and other issues, made it necessary for the trial court to issue nine successive notices setting the case for hearing. The parties had also mediated the case without success.

         On January 29, 2015, the eighth setting for hearing, Gauger's third trial counsel moved to continue the trial setting and to withdraw. The trial court granted both motions and admonished Gauger to retain new counsel immediately. The trial court also admonished Gauger that it would not continue the trial any further. The trial court explained that the case had been on the court's docket for almost three years and that it would hold the final hearing within the next six weeks. The trial court noted that it would send out a reset notice but that, if the parties had not received the reset notice in the next seven to ten days, they should call the trial court and request it to set the final hearing. The trial court also ordered Gauger to pay the appraisal fee and other outstanding costs by March 6, 2015.

         The trial court sent notice to Gauger on March 27, 2015, which Gauger received, in which the trial court set the final hearing for June 1, 2015. On June 1, 2015, at 1:30 p.m., the trial court called the case for trial; Tidwell appeared with counsel, but neither Gauger nor any counsel for him appeared. The trial court noted that it had sent Gauger and Tidwell notice of the trial setting, a copy of which was in the clerk's file. The trial court noted that Gauger had called the court and left a voice-mail message at 11:56 a.m. that day stating that he was still in Illinois and would not be present. Gauger said that he thought he had retained attorney Landon Northcutt, but Northcutt had refused to represent him because Gauger had not paid him the required retainer fee. The trial court noted that Gauger had not spoken to any court staff about his appearance at the hearing and did not file a formal motion for continuance and that the trial court had not granted a continuance of the June 1 hearing. The trial court further noted that no one had entered an appearance on Gauger's behalf and that, although Northcutt had called the court administrator and asked about the case, Northcutt had not entered an appearance and had not indicated that he represented Gauger.

         At the final hearing, the trial court found that Gauger had failed to appear and "wholly made default, " heard evidence from Tidwell about the division of property, determined what was separate and community property, completed a just and right division of community property, and entered a judgment in Tidwell's favor. Once Gauger received notice of the judgment, he retained counsel who filed a motion for new trial in which Gauger claimed that he thought he had retained Northcutt to represent him and that he had paid him a retainer of $2, 500 to secure a continuance of the final hearing or to appear for him at the final hearing.

         The record before us reflects that no one had entered an appearance for Gauger from January 29, 2015, until his fourth counsel appeared and requested findings of fact and conclusions of law on July 24, 2015, more than seven weeks after the trial and three weeks after the court signed the final decree. In Gauger's motion for new trial, he included a request for hearing, but the record does not reflect that he or his counsel did anything else to secure a hearing on his motion for new trial. Tidwell did not file a response to Gauger's motion for new trial.

         II. Standard of Review

         We review the trial court's denial of a motion for new trial under an abuse of discretion standard. Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984). After a default judgment is entered, the trial court abuses its discretion when it denies a motion for new trial if (1) the default judgment was not a result of the defendant's conscious indifference, but was a result of mistake or accident; (2) the defendant has a meritorious defense against liability; and (3) a new trial will not prejudice the plaintiff and will avoid injustice to the defendant. Sutherland v. Spencer, 376 S.W.3d 752, 754 (Tex. 2012) (citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939)); Tanknology/NDE Corp. v. Bowyer, 80 S.W.3d 97, 100 (Tex. App.-Eastland 2002, pet. denied) (citing Craddock, 133 S.W.2d at 126). When a motion for new trial presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence if the facts alleged by the movant would entitle him to a new trial. Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979); Anderson v. Anderson, 282 S.W.3d 150, 154 (Tex. App.-El Paso 2009, no pet.) (citing Hawkins v. Howard, 97 S.W.3d 676, 678 (Tex. App.-Dallas 2003, no pet.)); Bray v. Mohair Council of Am., No. 11-05-00353-CV, 2007 WL 118927, at *2 (Tex. App.-Eastland Jan. 18, 2007, no pet.) (mem. op.).

         A trial court abuses its discretion when all of the elements of the Craddock test are fulfilled and the court fails to grant a new trial. Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992). 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 ...


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