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Opinion issued June 21, 2007

























In The

Court of Appeals

For The

First District of Texas




NO. 01-06-00128-CV




WILLIAM FRANCIS HARRIS, SR., Appellant



V.



THYRA BURKS, Appellee




On Appeal from the 247th District Court

Harris County, Texas

Trial Court Cause No. 2005-75900




MEMORANDUM OPINION

This is an appeal from a default judgment granted in a suit affecting the parent-child relationship (SAPCR). On appeal, appellant, William Francis Harris, Sr., contends that the trial court erred in granting a default judgment based on (1) Harris's failure to answer or (2) failure to appear for trial. Harris also contends that the trial court erred (3) by granting the default judgment after an improper citation; (4) granting the default judgment without first ruling on his motion requesting a bench warrant, and (5) failing to provide him with an appointed attorney. We affirm.

BACKGROUND

After W.H.'s mother died, his grandmother, Thyra Burks, filed a SAPCR seeking to be named sole managing conservator of the minor child. On December 16, 2005, Harris, the child's father, was served with both the Original Petition and an Order Setting Hearing at the Darrington Unit in Rosharon, Texas, where he is currently serving a 60-year-sentence for murder.

On December 29, 2006, Harris filed an "Original Answer, Plea to the Jurisdiction, and General Denial."

On January 10, 2006, the trial court held the previously noticed hearing. Neither Harris nor a legal representative for him appeared at the hearing. On that same day, the trial court signed "Default Final Orders in Suit to Modify Parent-Child Relationship," which named Burks as the child's sole managing conservator.

Thereafter, Harris requested findings of facts and conclusions of law, which the trial court signed on February 21, 2006. Harris did not file a motion for new trial, but, on February 10, 2006, he filed a Notice of Appeal, and his appeal was assigned to this Court.

DEFAULT JUDGMENT

Before we address Harris's points of error, we must first determine what type of default judgment was entered by the trial court. Under rule 239 of the Texas Rules of Civil Procedure, "the plaintiff may . . . take judgment by default against [the] defendant if he has not previously filed an answer." Tex. R. Civ. P. 239. A trial court may not enter a "no answer" default judgment against a party that has an answer on file. Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989).

A trial court may also grant a "post-answer" default judgment if a party has filed an answer, but fails to appear for trial. Sharif v. Par. Tech, Inc., 135 S.W.3d 869, 872 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (explaining difference between "no answer" and "post-answer" default judgments).

The record in this case shows that Harris filed an answer with the trial court on December 29, 2005--almost two weeks before the default judgment was signed. As such, the default judgment was not a "no answer" default, but was a "post-answer default." Accordingly, we overrule Harris's first point of error, in which he complains that the trial court erred in entering a default judgment when he, in fact, had an answer on file.

We turn then to Harris's second issue, in which he contends that the trial court erred by entering a default judgment based on his failure to appear at the January 10, 2006 hearing. We begin by noting that the same prerequisites for setting aside a "no-answer" default also apply to "post-answer" defaults. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). They also apply to SAPCRs. See In re R.H., 75 S.W.3d 126, 130 (Tex. App.--San Antonio 2002, no pet.), overruled on other grounds by, In Re K. C., 88 S.W.3d 277 (Tex. App.--San Antonio 2002, pet. denied) (holding Craddock test not applicable after trial on merits). A default judgment should be set aside and a new trial order in any case in which: (1) the failure of the defendant to answer or appear was not intentional or the result of conscious indifference on his part, but was due to mistake or an accident, (2) provided the motion for new trial sets up a meritorious defense and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).

However, complaints regarding a trial court's failure to set aside a default judgment must be raised in a motion for new trial because the trial court must hear evidence to determine whether the Craddock factors have been met. See Massey v. Columbia State Bank, 35 S.W.3d 697, 699 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). "A point in a motion for new trial is a prerequisite to . . . a complaint on which evidence must be heard such as . . . [a] failure to set aside a judgment by default[.]" Tex. R. Civ. P. 324(b)(1).

Harris did not file a motion for new trial, and the record is otherwise devoid of evidence to determine whether the Craddock factors have been met.

In a post-answer default situation, if a party's reason for not appearing at a trial setting is lack of notice of the setting, then showing a meritorious defense under Craddocck is not required. 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 (1988)). In addition, if a party did not receive notice of the trial setting, the party is not required to show that a new trial would not cause delay or injury to the plaintiff. Mahand v. Delaney, 60 S.W.3d 371, 375 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (extending Lopez principle to third prong of Craddock).

Harris argues that the Notice of Hearing, with which he was served on December 16, 2005, did not have a date and time to appear for the hearing. However, the Notice of Hearing in the record clearly provides that the hearing was to be held on January 10, 2006. As such, the only evidence in the record on the issue supports the trial court's finding that Harris had notice of the hearing. (1)

Because the record shows that Harris had notice of the hearing and does not show the presence of the Craddock elements--because no motion for new trial was filed and evidence produced in support thereof--we hold that the trial court did not err in granting a "post-answer" default judgment based on Harris's failure to appear at the January 10, 2006 hearing. Accordingly, we overrule point of error two.

IMPROPER CITATION

Although not designated as a separate point of error, Harris also appears to complain that the citation he received was improper because it did not have an endorsement of delivery date, as required by Tex. R. Civ. P. 106. However, the citation, as it appears in the record, clearly shows that the citation and accompanying Original Petition, were delivered to Harris on December 16, 2005. Furthermore, the filing of an answer or some other appearance generally waives any defect in the service of citation. Baker v. Monsanto Co., 111 S.W.3d 158, 160-61 (Tex. 2003); CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex. App.--Austin 1995, no writ); Halligan v. First Heights, F.S.A., 850 S.W.2d 801, 803 (Tex. App.--Houston [14th Dist.] 1993, no writ).

Accordingly, we overrule Harris's issue relating to his complaint about a defective citation.

BENCH WARRANT

Although not designated as a separate point of error, Harris also complains that the trial court granted a default judgment against him without first ruling on his motion requesting a bench warrant. We begin by noting that nothing in the record shows that Harris filed a motion requesting a bench warrant. (2)

However, even if we were to consider the motion for bench warrant that Harris claims to have filed, we would conclude that the trial court did not abuse its discretion in not acting on the motion. In the case of In re Z.L.T., 124 S.W.3d 163 (Tex. 2003), Thompson, an inmate appearing pro se, filed a motion for bench warrant so that he could appear at a trial in which the Attorney General sought to establish the parent-child relationship between Thompson and three minor children. Id. at 164. The trial court did not act on the motion, but proceeded to trial, thus implicitly overruling Thompson's request. Id. The court held that "since a prisoner has no absolute right to be present in a civil action, it follows that the prisoner requesting a bench warrant must justify the need for his presence." Id. at 166. Because Thompson's motion failed to provide any factual information showing why his interest in appearing outweighed the impact on the correctional system, he had not met his burden. Id. at 166. The court further held that the trial court had no independent duty to "go beyond the bench warrant request and independently inquire into the necessity of an inmate's appearance." Id.

Like the inmate's motion in Thompson, Harris's motion for bench warrant in this case provides no facts showing why his interest in appearing outweighs the impact on the correctional system. Harris's motion states only that he wishes to appear "so that [he] may give testimony."

The trial court had no duty to look beyond the facts alleged in Harris's motion and did not abuse its discretion by implicitly denying his request for a bench warrant.

Accordingly, we overrule Harris's issue relating to his request for a bench warrant.

APPOINTED COUNSEL

In issue three, Harris contends the trial court erred by "failing to appoint [an] attorney to represent [him] in the parent-child termination case." We agree that, under section 107.013 of the Family Code, an indigent parent is entitled to the appointment of an attorney ad litem to represent the parent's interest in a suit filed by a governmental entity in which termination of the parent-child relationship is requested. Tex. Fam. Code Ann. 107.013 (Vernon Supp. 2006).

However, this is not such a case. No governmental entity has sought termination of Harris's parental rights, and, in fact, Harris's parental rights have not been terminated. Instead, this is a SAPCR brought by W.H.'s grandmother seeking to be named sole managing conservator of the minor child.

Because this case does not involve the termination of Harris's parental rights, he is not entitled to appointed counsel. Accordingly, we overrule issue three.









CONCLUSION

We affirm the judgment of the trial court.



Sherry Radack

Chief Justice



Panel consists of Chief Justice Radack and Justices Keyes and Higley.

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