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Hewitt v. Gan

Court of Appeals of Texas, Fifth District, Dallas

June 7, 2019

JESSICA HEWITT, Appellant
v.
MAGNUS GAN, Appellee

          On Appeal from the County Court at Law No. 2, Dallas County, Texas Trial Court Cause No. CC-17-06460-B

          Before Justices Bridges, Brown, and Nowell.

          MEMORANDUM OPINION

          ADA BROWN JUSTICE.

         Appellant Jessica Hewitt raises three issues in this direct appeal from a no-answer default judgment. For reasons that follow, we affirm.

         On December 11, 2017, Magnus Gan, acting pro se, sued Hewitt alleging that Hewitt fraudulently conveyed title to a vehicle owned by Gan to herself by forging Gan's signature on the Texas Certificate of Title for the vehicle. He sought injunctive and other relief. The record reflects that Hewitt was personally served on January 18, 2018. She did not file an answer.

         Although she did not answer, Hewitt and her attorney were present at a hearing in the case held on March 29, 2018. It is unclear what the purpose of the hearing was. The reporter's record indicates that after the parties identified themselves, the visiting judge who presided over the hearing wanted to "cover a couple of matters" off the record. The judge said, "So let's go off the record," and that was the end of the recorded portion of the hearing.

         Four days later, on April 2, 2018, Gan, now represented by counsel, filed a motion for no-answer default judgment against Hewitt. On April 19, the trial court granted an interlocutory default judgment as to liability, and on May 2, it signed a final default judgment. On May 18, 2018, Hewitt filed her first document in this litigation. It was a request for findings of fact and conclusions of law. Thirty-three days after the trial court's judgment, on June 4, Hewitt filed a motion for new trial asking the trial court to set aside the default judgment. Hewitt asserted that she did not receive notice of the default hearing and she was entitled to notice because she appeared in court at the March hearing. After a hearing, the trial court ruled that Hewitt's motion for new trial was untimely filed. Hewitt then filed this direct appeal.

         Hewitt raises the following three issues in this appeal:

1. Whether the trial court acted in an arbitrary or unreasonable manner by granting defendant Gan's motion for default judgment when a general denial or appearance was made in open court on March 29, 2018 with all parties present and an answer was served, but not accepted by the court.
2. Whether notice of a default hearing was required to [Hewitt's] counsel or [Hewitt] herself after [Gan] was served with [Hewitt's] answer, but the filed answer was subsequently rejected for technical defects.
3. Whether an answer is timely filed if it is submitted to the court and served on all parties, but subsequently rejected for not having a cause number on each and every exhibit.

         Hewitt's primary argument is that she is entitled to a new trial because she was not given notice of any hearing on the motion for default judgment despite her prior appearance in court. Her other arguments relate to her alleged attempts to e-file an answer.

         To be entitled to a new trial after a default judgment, a party must satisfy the three-part test set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm'n Op.] 1939). The first element of Craddock is that a defendant's nonappearance was not intentional or the result of conscious indifference. Id. When this element is established by proof that the defaulted party was not given notice of a trial setting, the party need not meet the remaining two elements. C.H. v. S.L., No. 02-16-00386-CV, 2018 WL 4925318, at *8 (Tex. App.-Fort Worth Oct. 11, 2018, no pet.) (mem. op.). To require otherwise would violate a party's due process rights under the Fourteenth Amendment. See id. (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-7 (1988)).

         We agree with Hewitt that because she appeared at the March hearing, she was entitled to notice of the default hearing. See LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390- 91 (Tex. 1989) (per curiam) ("Once a defendant has made an appearance in a cause, he is entitled to notice of the trial setting as a matter of due process."); Bryant v. Gamblin, 829 S.W.2d 228, 229 (Tex. App.-Eastland 1991, writ denied). However, the law presumes that a trial court will hear a case only after giving proper notice to the parties. C.H., 2018 WL 4925318, at *8; Richardson v. Sims, No. 01-15-01115-CV, 2016 WL 5787291, at *2 (Tex. App.-Houston [1st Dist.] Oct. 4, 2016, no pet.) (mem. op.). Notice of a trial setting does not always appear in the clerk's record and need not affirmatively appear in the record. C.H., 2018 WL 4925318, at *8. The record in this case at the time of the default judgment is silent regarding Hewitt's notice ...


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