Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Case No. 1113112
consists of Justices Lloyd, Goodman, and Landau.
an appeal from a post-answer default judgment against Janet
Snow. Snow argues that the trial court abused its discretion
in refusing to set aside the default judgment and grant her a
new trial because she presented uncontroverted evidence that
she never received notice of the trial setting. We agree and
therefore reverse and remand.
facts are simple and undisputed. John Como sued Janet Snow
for breach of contract. Snow answered. The case proceeded to
trial, but Snow did not appear, and the trial court signed a
post-answer default judgment in Como's favor. Snow then
filed a verified motion for new trial, asserting that she
never received notice of the trial setting. Como did not file
a response, and Snow's motion was overruled by operation
of law. See Tex. R. Civ. P. 329b(c). Snow appeals.
first issue, Snow argues that the trial court abused its
discretion in refusing to set aside the default judgment and
grant her a new trial because she presented uncontroverted
evidence that she never received notice of the trial setting.
Applicable law and standard of review
Texas law, a post-answer default judgment is permissible when
the defendant files an answer but fails to appear for trial.
Mahand v. Delaney, 60 S.W.3d 371, 373 (Tex.
App.-Houston [1st Dist.] 2001, no pet.). However, a
post-answer default judgment is only valid if the defendant
received notice of the trial setting. $429.30 In U.S.
Currency v. State, 896 S.W.2d 363, 366 (Tex. App.-
Houston [1st Dist.] 1995, no writ).
if the trial court enters a post-answer default judgment, and
the defendant later proves she never received notice of the
trial setting, the trial court must set the judgment aside
and grant a new trial. See Mahand, 60 S.W.3d at 375.
A trial court's refusal to do so is an abuse of
discretion subject to reversal on appeal. See id. at
the trial court signed the default judgment, Snow filed a
motion for new trial, which was verified by the affidavit of
Snow's counsel, Terry Vanderpool. The motion asserted
that, after the trial court signed the default judgment,
Vanderpool received a notice of final judgment, prompting him
to contact the trial court clerk, who informed Vanderpool
that the trial court had previously signed an order that (1)
set the case for trial and (2) ordered Como to notify
Vanderpool of the trial setting by certified mail, return
receipt requested. However, the motion further asserted, Como
never notified Vanderpool of the trial setting, and
Vanderpool was not otherwise made aware of the trial setting,
as the order setting the case for trial was never provided to
Vanderpool or made part of the county clerk's online
motion for new trial was supported by several exhibits,
including: (1) the trial court's order setting the case
for trial, which the trial court clerk faxed to Vanderpool
after he received the notice of final judgment, and (2) a
page from the county ...