Opinion
No. 11-16-00033-CV No. 11-16-00034-CV
01-31-2018
APPROXIMATELY 26.8 GRAMS OF METHAMPHETAMINE ET AL., Appellants v. THE STATE OF TEXAS, Appellee
On Appeal from the 350th and 42nd District Courts Taylor County, Texas
Trial Court Cause Nos. 10085-D & 48667-A
MEMORANDUM OPINION
This is an appeal from two post-answer default judgments that the trial court entered in two separate, but related, civil forfeiture actions. We reverse and remand.
When these cases began, the State served Appellant with notices of seizure and intended forfeiture of certain items that law enforcement officers had found in Appellant's vehicle. The items found included methamphetamine, a money card, cash, and two cell phones, all believed to be used in the course of illegal drug trafficking.
After Appellant filed a timely answer, the State's counsel mailed a letter in each cause to Appellant's defense counsel to inform her that a final hearing had been set. The clerk's record in each cause contains a filed-stamped copy of the respective signed letter. State's counsel informed the trial court that he "sent the notice" and that "it did not come back"; he sent the letters first class, not certified. Although the State's counsel's letters providing notice of the hearing were correctly addressed to Appellant's counsel's office, Appellant's counsel represented to the trial court that she "searched everywhere" and that she "did not receive [them]."
Appellant did not appear for the trial setting, and the trial court entered default judgments. The clerk sent notice of the default judgments to Appellant at the Taylor County Jail, rather than to Appellant's counsel of record. The notices of default judgment were returned to the clerk unserved.
Appellant's counsel first learned about the default judgments while performing research in connection with a subpoena she would need for any later trial setting. When she learned of the default judgments, she filed a motion in each cause to extend the time within which she could file postjudgment motions. At the hearing on those motions, the trial court determined that Appellant's counsel did not receive postjudgment notice of the default judgments, due to the clerk's error. During this hearing, the trial court expressly reserved the "different issue" of whether Appellant received pretrial notice of the trial setting:
Now, [defense counsel] has asked to extend, on behalf of her client, the postjudgment time periods, not to challenge -- that's a different issue whether [defense counsel is] going to challenge [that] a default was properly entered or not. This is just to extend the postjudgment, and that is determined by whether or not proper notice was sent by the clerk after the [default] judgment was entered. Whether
or not I [sic] challenge the [default] judgment is kind of what we're arguing about here, but that's not even before the Court at this point.
After the trial court found that Appellant did not receive proper notice of the entry of the default judgments, Appellant filed a motion for new trial in each case. In the motions, Appellant stated, "The reason for this motion is that the undersigned and the Claimant received no actual or constructive notice of the trial setting, whereas, the post-answer default judgment was entered." Appellant stated that failure to appear at the trial was "the result of an accident or mistake due to lack of knowledge of the trial setting" (emphasis added).
At the hearing on the motions for a new trial, when counsel discussed whether pretrial notice was sent or received, the trial court interjected:
We have already had that hearing regarding whether there was notice of the hearing. And the Court made a determination and extended the time for filing of a motion for new trial. . . .(Emphasis added). When Appellant failed to provide sufficient support for a meritorious defense, the trial court denied the motions for new trial.
We are here only on the legitimacy -- or the question of whether a new trial should be granted . . . . [T]here are several issues. And one of them is, in fact, this -- this issue with regard to whether or not there was proper notice of the trial setting. But because of the prior court hearing, we have pretty much gone past that. Now, we are looking at the other factors to granting the motion for new trial [that] must be considered by the Court.
We review a trial court's decision to deny a motion for a new trial for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). Ordinarily, a post-answer default judgment should be set aside and a new trial granted if the defendant proves three elements: (1) nonappearance was not intentional or the result of conscious indifference, but the result of an accident or mistake; (2) a meritorious defense; and (3) a new trial would cause neither delay nor undue prejudice. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (citing Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (1939)).
However, when the first element is established by proof that the defaulted party was not given pretrial notice of a trial setting, it is a violation of due process to require the second and third elements. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988)); Mahand v. Delaney, 60 S.W.3d 371, 375 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Thus, the issue before this Court is whether Appellant established the first element.
When, at the hearing on the motions for new trial, the trial court addressed whether Appellant received pretrial notice, it spoke in reference to the "prior court hearing," which was the hearing on the motions for extension of the postjudgment period. See TEX. R. CIV. P. 306a. However, the issue in that earlier hearing was that Appellant's counsel did not receive postjudgment notice due to the clerk's error; at that time, the trial court expressly refused to decide whether Appellant had received pretrial notice of the trial setting. Therefore, the trial court did not, at either hearing, consider whether Appellant received pretrial notice. The trial court abused its discretion when it required proof of a meritorious defense when it had not first decided the issue of pretrial notice.
The State argues that the trial court implicitly found that Appellant received pretrial notice. However, that finding is not supported by the record.
When notice is properly sent pursuant to Rule 21a, there is a presumption that notice was received. TEX. R. CIV. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). "But we cannot presume that notice was properly sent; when that is challenged, it must be proved according to the rule." Mathis, 166 S.W.3d at 745. Evidence that notice was sent is not tantamount to evidence that notice was received. Standing alone, counsel's oral assurance that notice was properly sent is not sufficient to raise the presumption of proper notice. Id.
In Mathis, the record contained "no certificate of service, no return receipt from certified or registered mail, and no affidavit certifying service." Id. The same is true in this case; the only evidence of notice was the State's counsel's representation that he sent the letters in accordance with Rule 21a. Under the precedent in Mathis, there is no prima facie evidence that notice was properly sent. See id. Thus, there is no presumption that notice was received. Id.
The only evidence as to pretrial notice came through Appellant's counsel's representation that Appellant's counsel did not receive notice of the hearing. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (holding attorney's unsworn statements tendered as evidence were sufficient absent objection). The State did not controvert this evidence. See Fidelity and Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006).
The trial court abused its discretion when it refused to set aside the default judgments and, instead, required Appellant to prove a meritorious defense at the hearing before he would be entitled to a new trial.
We reverse the judgments of the trial court and remand both causes for further proceedings consistent with this opinion.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE January 31, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.