Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 2, Dallas County,
Texas Trial Court Cause No. CC-17-06460-B
Justices Bridges, Brown, and Nowell.
Jessica Hewitt raises three issues in this direct appeal from
a no-answer default judgment. For reasons that follow, we
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
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
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.
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
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
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)).
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 ...