law-post-answer-default-judgment

law-default-judgment-post-answer | motion for default judgment when defendant has answered, an answer is
on file | d efault-judgment-no-answer-filed | notice of trial | notice of summary judgment hearing | service of
citation | due process | default judgment cases | bill of review | restricte d appeal | dismissal for want of
prosecution

WHAT IS A POST-ANSWER DEFAULT JUDGMENT?
A post-answer default judgment occurs when a timely answer that puts the merits of plaintiff's claims at issue is
on file, but the defendant fails to appear at trial. Sharif v. Par Tech, Inc., 135 S.W.3d 869, 872 (Tex. App.-
Houston [1st Dist.] 2004, no pet.) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). If a
defendant has filed such an answer, the defendant's failure to appear at trial is neither an abandonment of the
defendant's answer nor is it an implied confession of any issues thus joined by the defendant's answer. Id.
Post-answer default judgments cannot be entered on the pleadings, but, rather, a plaintiff must offer evidence
and prove his case as in a judgment at trial. Id. at 873. This Court must have a record of the evidence in order
to determine if sufficient evidence was submitted to support the judgment. Id. When a default judgment is
attacked by motion for new trial in the trial court, the parties may introduce affidavits, depositions, testimony,
and exhibits to explain what happened. Fidelity and Guaranty Ins. Co. v. Drewery Constr. Co., 186 S.W.3d
571, 574 (Tex. 2006) (citing Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004)).
STANDARD FOR SETTING ASIDE A POST-ANSWER DEFAULT JUDGMENT
A post-answer default judgment should be set aside when the defendant establishes that (1) nonappearance
at trial was not intentional or the result of conscious indifference, but the result of an accident or mistake, (2)
the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no undue
delay or otherwise injure the plaintiff. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002); Craddock, 133 S.W.2d at 126. In determining
whether a claimant acted intentionally or with conscious indifference in not appearing at trial, but rather failed
to appear due to accident or mistake, we look to the claimant's knowledge or acts. Hunsucker v. Fustok, 238 S.
W.3d 421, 430-31 (Tex. App.-Houston [1st Dist.] 2007, no pet.). In this context, an accident or mistake is
characterized by inadequate knowledge of the facts or an unexpected happening that precludes compliance.
Id. Conscious indifference is the failure to take action that would seem indicated to a person of reasonable
sensibilities under similar circumstances. Id. When a defendant has no actual or constructive notice of a trial
setting and a default judgment is entered against him, he is not required to show that he had a meritorious
defense because such a requirement violates his due process rights under the Fourteenth Amendment to the
United States Constitution. Peralta v. Heights Medical Center, 485 U.S. 80, 96, 108 S. Ct. 896, 900 (1988);
Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988); Lorentzen v. Kliesing, 810 S.W.2d 16, 19 (Tex. App.-
Houston [14th Dist.] 1991, no writ).
Cantu v. Salameh, Tex: Court of Appeals, No. 01-08-00017-CV. 1st Dist., Houston June 18, 2009.

DEFAULT JUDGMENT AFTER ANSWER REQUIRES EVIDENCE
post-answer default judgments cannot be entered on the pleadings; rather, the plaintiff must offer evidence
and prove his case as in a judgment on trial. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Sharif v.
Par Tech, Inc., 135 S.W.3d 869, 873 (Tex. App.-Houston [1st Dist.] 2004, no pet. ). “If the judgment is
rendered after presentation of evidence to the court in the absence of the appellant and his attorney, the
failure to have the court reporter present to make a record constitutes reversible error.” Sharif, 135 S.W.3d at
873 (quoting Chase Bank v. Harris County Water Control & Improvement Dist., 36 S.W.3d 654, 655 (Tex. App.-
Houston [1st Dist.] 2000, no pet.). Such error is not harmless because, without a reporter's record, the
reviewing court is unable to determine if sufficient evidence was presented to support the judgment. Sharif,
135 S.W.3d at 873; Chase Bank, 36 S.W.3d at 655-56.
Similarly, in the case of a no-answer default judgment, if the claim is unliquidated, the court must hear
evidence on damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Argyle Mechanical,
Inc. v. Unigus Steel, 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet); Morgan Express, Inc. v. Elizabeth-
Perkins, Inc., 525 S.W.2d 312, 315 (Tex. Civ. App.-Dallas 1975, writ ref'd ).

POST-ANSWER DEFAULT JUDGMENT CASELAW
FROM HOUSTON COURTS OF APPEALS

A post-answer default judgment rendered without proper notice is an abuse of discretion. See
Masterson v. Cox, 886 S.W.2d 436, 439 (Tex. App.-Houston [1st Dist.] 1994, no writ)

Mallory v. Mallory and OAG, No. 14-06-01009-CV (Tex.App. - Houston [14th Dist.] May 7, 2009)(Brown) (post-
answer default judgment reversed, insufficient notice)(default judgment in child support arrearage confirmation
action was error)

Sanchez v. Davenport (Tex.App.- Houston [1st Dist.] Oct. 11, 2007)(Alcala)
(post-answer default, appearance, notice of trial setting, civil assault claim)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00160-CV Narcisco Sanchez v. Lisa Davenport
Appeal from 149th District Court of Brazoria County (Hon. Robert E. May)

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