law-motion-for-new-trial-after-default-judgment | motion for new trial |
MOTION FOR NEW TRIAL AFTER RENDITION OF DEFAULT JUDGMENT
We review a trial court’s denial of a motion for new trial for an abuse of discretion. See Cliff v. Huggins, 724 S.
W.2d 778, 778–79 (Tex. 1987). To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or principles, or acted in an arbitrary or
unreasonable manner. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An abuse of discretion does
not occur with regard to factual matters as long as some evidence reasonably supports the trial court’s
decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). Nor does it occur when the trial court’s
decision is based on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).
Niessen Velasco v. Ayala (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley) (void judgment)
(motion for new trial, service by publication, service of process on defendant in foreign country)
We conclude that, because Betsabe is a citizen of a Mexico and the record shows that her address in Mexico
was known to Alfonso at the time he sought to effect service on her (which was the same day he filed his
petition containing her address in Mexico), and because Betsabe was not duly served with citation under the
law, the trial court did not acquire personal jurisdiction over her and the trial court’s judgment is void. We hold
that the trial court abused its discretion by failing or refusing to grant Betsabe’s motion for new trial.
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-07-01053-CV Betsabe Ivonne Niessen Velasco v. Alfonso Ignacio Ayala
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster
INSUFFICIENT NOTICE OF TRIAL OR HEARING RESULTING IN DEFAULT JUDGMENT
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)
A trial court’s order denying a motion to set aside a default judgment or for new trial is reviewed under
an abuse-of-discretion standard. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Martinez v.
Martinez, 157 S.W.3d 467, 469 (Tex. App.-Houston [14th Dist.] 2004, no pet). The trial court abuses
its discretion if it acts without reference to any guiding rules or principles. Goode v. Shoukfeh, 943 S.
W.2d 441, 446 (Tex. 1997).
The trial court abuses its discretion in denying a motion for new trial if all of the Craddock elements
are met. Bank One, Tex., N.A., v. Moody, 830 S.W.2d 81, 85 (Tex. 1992). Under Craddock, the
defendant must demonstrate that (1) his failure to appear was not intentional or the result of conscious
indifference; (2) there is a meritorious defense; and (3) the granting of a new trial will not operate to
cause delay or injury to the opposing party. Craddock, 133 S.W.2d at 126; Ashworth v. Brzoska, 274
S.W.3d 324, 328-29 (Tex. App.-Houston [14th Dist.] 2008, no pet.). The Craddock requirements
apply to post-answer default judgments. Ivy v. Carrell, 407 S.W.2d 212, 214-15 (Tex. 1966).
The law presumes that a trial court will hear a case only after giving proper notice to the parties.
Ashworth, 274 S.W.3d at 329; Jones v. Tex. Dep’t of Public Safety, 803 S.W.2d 760, 761 (Tex. App.-
Houston [14th Dist.] 1991, no writ). Specifically, to satisfy due- process requirements, a defendant in
a post-answer default case must have been given notice that the case could be decided on the merits
in the event the defendant failed to appear. See Masterson v. Cox, 886 S.W.2d 436, 439 (Tex. App.-
Houston [1st Dist.] 1994, no writ). If a defendant establishes that he did not receive proper notice, he
satisfies the first Craddock element and need not prove a meritorious defense. See Lopez v.
Lopez, 757 S.W.2d 721, 723 (Tex. 1988). In that case, a new trial is warranted. See Ashworth, 274 S.
W.3d at 329.
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) The trial court
did not give Mallory notice that his failure to appear at the hearing could result in dispositive action
being taken in the form of a default order on child-support arrearage. As a result, the trial court
abused its discretion in denying Mallory’s motion for new trial or to set aside the default judgment. Id
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)
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