law-notice of trial setting | default-judgment-post-answer | Houston default judgment cases | presumption of
proper service of notice by mail and rebuttal
Reasonable Notice of Trial Resetting
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 under the Fourteenth Amendment. In re $475,001, 96 S.W.3d 625, 627 (Tex. App.-Houston [1st
Dist.] 2002, no pet.) (citing Peralta, 485 U.S. at 86, 108 S. Ct. at 899-900). A post-answer default judgment is
valid only if the defendant has received notice of the default judgment hearing. Id. (citing $429.30 In U.S.
Currency v. State, 896 S.W.2d 363, 366 (Tex. App.-Houston [1st Dist.] 1995, no pet.)). Notice may be either
actual or constructive. See Lopez, 757 S.W.2d at 723.
In Texas, a trial court may schedule contested cases on its own motion, provided it gives the party "reasonable
notice of not less than 45 days" before the first scheduled trial setting. Tex. R. Civ. P. 245; Raines v. Gomez,
118 S.W.3d 875, 876 (Tex. App.-Texarkana 2003, no pet.). When a case has been previously set for trial, the
trial court may reset the case to a later date on reasonable notice to the parties, which may be less than 45
days. Tex. R. Civ. P. 245; O'Connell v. O'Connell, 843 S.W.2d 212, 215 (Tex. App.-Texarkana 1992, no writ). To
determine what constitutes reasonable notice for resetting a case to a later date, we must look to the facts of the
individual case rather than be guided by an arbitrary time period. O'Connell, 843 S.W.2d at 215. The Texas
Rules of Civil Procedure also require notice of the trial setting to be sent by personal service, courier-receipted
delivery, certified or registered mail, fax, or by any other manner as the trial court in its discretion may direct.
Tex. R. Civ. P. 21a; Raines, 118 S.W.3d at 876. A party is generally charged with notice of all orders that are
rendered affecting the case. See Continental Casing Corp. v. Siderica Corp., 38 S.W.3d 782, 791 (Tex. App.-
Houston [14th Dist.] 2001, no pet.) (counsel chargeable with notice of court order where copy of court order in
court files had particular date stamped on it, court's docket sheet indicated that order was signed on that date,
and notice of order and date it was entered was mailed to all counsel of record).Cantu v. Salameh, Tex: Court of
Appeals, No. 01-08-00017-CV. 1st Dist., Houston June 18, 2009.
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 law presumes a trial court hears a case only after proper notice to the parties. Osborn v. Osborn, 961 S.W.
2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). “A recitation of due notice of the trial setting in
the judgment constitutes some, but not conclusive evidence that proper notice was given.” Id. This presumption
can be rebutted by evidence in the record. Id.
Matt concedes that this was not an initial trial setting, as he notes in his brief that he had previously appeared in
court and that the trial had been reset. Rule of Civil Procedure 245 requires that a trial court must give 45 days
notice of a first trial setting, but may reset the trial to a later date on any reasonable notice. See id. The
judgment recites that Matt was served with notice of the January 24, 2006 trial, and the notice of trial setting with
a certificate of service including Matt appears in the record.
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.
The notice Mallory received did not give him notice that dispositive action would be taken in his case in the
event he failed to appear. The notice did not even state what motion or issue would be heard on August 28,
2006, much less that a default could occur if Mallory failed to appear. In Masterson, the court addressed
whether notice of a pretrial conference could support a default judgment rendered after the defendant failed to
appear. 886 S.W.2d at 437. The court held that notice of a pretrial conference did not provide sufficient notice
that, if the defendant failed to appear, the conference would become a disposition on the merits resulting in a
default judgment. Id. at 439. The Masterson court reversed the default judgment because it did not comply with
the requirements of due process. Id.; see also Murphree v. Ziegelmair, 937 S.W.2d 493, 496 (Tex. App.-
Houston [1st Dist.] 1995, no writ) (holding that defendant who has appeared must be given notice that a failure
to appear at pretrial conference may result in dismissal or default to satisfy due process).
As in Masterson, Mallory had notice that a hearing would occur, but he did not have notice that the hearing
would be dispositive and a default judgment rendered in the event he failed to appear. A post-answer default
judgment rendered without proper notice is an abuse of discretion. See Masterson, 886 S.W.2d at 439. 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 (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Substituted Opinion by Brown)
(post-judgment default judgment in child support case without proper notice to defendant was reversible error)
(objection to affidavit based on best knowledge and belief not preserved for appellate review)
REVERSED AND REMANDED: Opinion by Justice Jeff Brown
Before Chief Justice Hedges, Justices Guzman and Brown
14-06-01009-CV Joel Mallory v. Sharon W. Mallory and The Office of the Attorney General of Texas Appeal
from 310th District Court of Harris County
Trial Court Judge: LISA A. MILLARD
Accordingly, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.
ORIGINAL SUPERSEDED OPINION: Mallory v. Mallory and OAG, No. 14-06-01009-CV (Tex.App. - Houston [14th
Dist.] May 7, 2009)(First superseded opinion by Brown) (post-answer default judgment reversed, insufficient
notice)(default judgment in child support arrearage confirmation action was error)
Afri-Carib Enterprised, Inc. v. Mabon Limited. (Tex.App.- Houston [14th Dist.] Mar. 31, 2009)(Yates)
(default judgment, bill of review, no proper notice of trial setting, suspended attorney)
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Seymore and Boyce
14-07-00650-CV Afri-Carib Enterprises, Inc. v. Mabon Limited
Appeal from 165th District Court of Harris County
Trial Court Judge: John Thomas Wooldridge
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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