Opinion
No. 05-07-01605-CV
Opinion issued March 18, 2009.
On Appeal from the 134th District Court, Dallas County, Texas, Trial Court Cause No. 97-07915-G.
Before Justices BRIDGES, RICHTER, and MAZZANT.
MEMORANDUM OPINION
Memphis, Inc. appeals the trial court's post-answer default judgment. In a single issue, appellant argues the trial court erred in entering a default judgment because it did not receive notice of the trial setting at which it failed to appear. We reverse the trial court's judgment and remand for further proceedings.
The underlying litigation began in 1997 and went to trial in 2002. In 2005, this Court entered judgment reversing the trial court's judgment and remanding for a new trial. On February 15, 2007, the trial court set the matter for trial on August 13, 2007. The matter was called to trial on August 15, 2007, and appellant failed to appear. On August 17, 2007, the trial court entered judgment in favor of Coggswell. Appellant filed a motion to set aside judgment asserting its counsel did not receive notice of the trial setting. On October 25 and 26, 2007, the trial court conducted a hearing on appellant's motion to set aside. Coggswell's counsel, Marilyn Lahr, testified she faxed the notice she received in February to Collin Porterfield, counsel for Memphis. Lahr testified she was unable to produce telephone records to prove she faxed and called Porterfield because the fax machine she used did not belong to her, and her telephone service provider could not produce the necessary records.
Porterfield testified he did not get a letter from the trial court concerning the trial setting. Porterfield was using Vonage for his office telephone service on August 10, 2007. When a voicemail was left at the Vonage telephone number, Vonage forwarded the message to Porterfield via email. However, when Porterfield set the Vonage account to forward calls to another number, he did not receive notification via email. Porterfield testified he did not check his Vonage email message box until August 30, 2007, when he discovered an August 10, 2007 message from the trial court coordinator.
Attorney Patrick Guillot submitted an affidavit stating he entered an appearance in this case in June 2002 and did not withdraw his appearance. On February 15, 2007, Guillot received a copy of the trial court's notice that trial was set in August. Guillot contacted Porterfield, and Porterfield stated he was continuing to represent appellant and would "handle the defense at trial." Guillot's affidavit does not state he told Porterfield that trial was set for August 13, 2007. Guillot sent a letter to Lahr and the trial court stating that he would not be handling the defense of this case and would not be appearing "at the trial setting on the 13th of August, 2007." Guillot's affidavit states he sent a copy of this letter to Porterfield and appellant's representative Marc Cline by regular mail. At the conclusion of the hearing, the trial court denied appellant's motion to set aside the post-answer default judgment. This appeal followed.
In a single issue, appellant argues the trial court erred in denying its motion to set aside the post-answer default judgment because it never received notice of the August 2007 hearing. For many years, a post-answer default judgment could be set aside only if a defendant proved three elements: (1) nonappearance was not intentional or the result of conscious indifference; (2) a meritorious defense; and (3) a new trial would cause neither delay nor undue prejudice. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005); see Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). When a party seeking to set aside a post-answer default judgment establishes his nonappearance was not intentional or the result of conscious indifference by proof the defaulted party was not given notice of a trial setting, we dispense with the second and third Craddock elements. Mathis, 166 S.W.3d at 745; see Craddock, 133 S.W.2d at 126.
On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney in charge. Tex. R. Civ. P. 8. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party. Id. All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge. Id.
Under rule of civil procedure 21a, all notices other than citation, including notification of trial settings, may be served by delivering a copy to the party (1) in person, (2) by agent, (3) by courier receipted delivery, (4) by certified or registered mail, properly addressed with prepaid postage, to the party's last known address, (5) by telephonic document transfer to the recipient's current telecopier number, or (6) by such other manner as the court in its discretion may direct. See Tex. R. Civ. P. 21a; Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). Notice properly sent pursuant to Rule 21a raises a presumption that notice was received. Tex. R. Civ. P. 21a; Mathis, 166 S.W.3d at 745. But we cannot presume notice was properly sent; when that is challenged, it must be proved according to the rule. Mathis, 166 S.W.3d at 745. Without this presumption, there was no evidence that Porterfield received notice of the trial setting. See id. Porterfield denied receiving any notice of the August 2007 trial setting from the trial court, Guillot, Lahr, or the trial court coordinator. Even if the trial court disbelieved Porterfield's testimony, that would not provide affirmative evidence that service occurred. See id.
Appellee argues Guillot was appellant's agent because his notice of appearance requests that the trial court "mail all Notices of Announcements and all other correspondence from this Court to Patrick C. Guillot." However, appellee omits the rest of the sentence in Guillot's notice of appearance requesting notice "as well as to Collin D. Porterfield" and the statement that "This Notice of Appearance is in addition to the appearance and representation of Collin D. Porterfield." The record shows Porterfield was the "attorney whose signature first appears on the initial pleadings for" appellant beginning in 1997. See Tex. R. Civ. P. 8. Thus, Porterfield was the attorney in charge, and all communications from the court or other counsel with respect to this suit had to be sent to him. See id. Nothing in Guillot's notice of appearance changes Porterfield's designation as attorney in charge. Thus, Guillot's receipt of the February 15, 2007, letter setting a date for trial was not notice to Porterfield or appellant. See Tex. R. Civ. P. 8, 21a; Osborn, 961 S.W.2d at 411.
Because the Craddock test was satisfied in this case, the trial court abused its discretion in refusing to set aside the default judgment against appellant. See Mathis, 166 S.W.3d at 746. We sustain appellant's sole issue.
We reverse the trial court's judgment and remand for further proceedings.