Janet Snow v. John Como

• Court: Court of Appeals of Texas
• Decided: December 19, 2019
• Docket: 01-19-00262-CV
• Status: Published

Opinion

Opinion issued December 19, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00262-CV ——————————— JANET SNOW, Appellant V. JOHN COMO, Appellee

On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1113112

MEMORANDUM OPINION

This is an appeal from a post-answer default judgment against Janet Snow.

Snow argues that the trial court abused its discretion in refusing to set aside the

default judgment and grant her a new trial because she presented uncontroverted evidence that she never received notice of the trial setting. We agree and therefore

reverse and remand.

Background

The facts are simple and undisputed. John Como sued Janet Snow for breach

of contract. Snow answered. The case proceeded to trial, but Snow did not appear,

and the trial court signed a post-answer default judgment in Como’s favor. Snow

then filed a verified motion for new trial, asserting that she never received notice of

the trial setting. Como did not file a response, and Snow’s motion was overruled

by operation of law. See TEX. R. CIV. P. 329b(c). Snow appeals.

Default Judgment

In her first issue, Snow argues that the trial court abused its discretion in

refusing to set aside the default judgment and grant her a new trial because she

presented uncontroverted evidence that she never received notice of the trial

setting.

A. Applicable law and standard of review

Under Texas law, a post-answer default judgment is permissible when the

defendant files an answer but fails to appear for trial. Mahand v. Delaney, 60

S.W.3d 371, 373 (Tex. App.—Houston [1st Dist.] 2001, no pet.). However, a post-

answer default judgment is only valid if the defendant received notice of the trial

2 setting. $429.30 In U.S. Currency v. State, 896 S.W.2d 363, 366 (Tex. App.—

Houston [1st Dist.] 1995, no writ).

Thus, if the trial court enters a post-answer default judgment, and the

defendant later proves she never received notice of the trial setting, the trial court

must set the judgment aside and grant a new trial. See Mahand, 60 S.W.3d at 375.

A trial court’s refusal to do so is an abuse of discretion subject to reversal on

appeal. See id. at 374.

B. Analysis

After the trial court signed the default judgment, Snow filed a motion for

new trial, which was verified by the affidavit of Snow’s counsel, Terry

Vanderpool. The motion asserted that, after the trial court signed the default

judgment, Vanderpool received a notice of final judgment, prompting him to

contact the trial court clerk, who informed Vanderpool that the trial court had

previously signed an order that (1) set the case for trial and (2) ordered Como to

notify Vanderpool of the trial setting by certified mail, return receipt requested.

However, the motion further asserted, Como never notified Vanderpool of the trial

setting, and Vanderpool was not otherwise made aware of the trial setting, as the

order setting the case for trial was never provided to Vanderpool or made part of

the county clerk’s online records.

3 Snow’s motion for new trial was supported by several exhibits, including:

(1) the trial court’s order setting the case for trial, which the trial court clerk faxed

to Vanderpool after he received the notice of final judgment, and (2) a page from

the county clerk’s website reflecting that the trial setting order had not been posted

online.

Como did not file a response to Snow’s motion for new trial.1 Thus, the

allegations in Snow’s motion are uncontroverted.

When, as here, a defendant presents verified affidavit testimony establishing

that she never received notice of the trial setting, and the testimony is

uncontroverted, the trial court must accept the testimony as true, set the default

judgment aside, and grant the defendant a new trial. See Sutherland v. Spencer, 376

S.W.3d 752, 755 (Tex. 2012) (defendant satisfies her burden by presenting

uncontroverted factual assertions that, if true, entitle her to new trial); Cliff v.

Huggins, 724 S.W.2d 778, 779 (Tex. 1987) (holding that defendant established he

was entitled to new trial when he provided uncontroverted testimony that he never

received notice of trial setting); Ashiru v. City of Rosenberg, No. 01-12-00681-CV,

2013 WL 5302701, at *2 (Tex. App.—Houston [1st Dist.] Sept. 19, 2013, no pet.)

(mem. op.) (reversing trial court’s denial of new-trial motion because movant

provided uncontradicted evidence that she had not received notice of trial setting);

1 We further note that Como has waived his right to file an appellate brief. 4 Mahand, 60 S.W.3d at 374–75 (holding that defendant proved he did not receive

reasonable notice of trial date when defendant filed uncontroverted verified motion

for new trial asserting that he did not receive notice until day of trial). We hold that

the trial court’s failure to do so here was an abuse of discretion. Accordingly, we

sustain Snow’s first issue.2

Conclusion

We reverse the trial court’s judgment and remand the case for further

proceedings.

Gordon Goodman Justice

Panel consists of Justices Lloyd, Goodman, and Landau.

2 Because our resolution of Snow’s first issue is dispositive, we do not reach her second issue, in which she argues that the trial court’s refusal to set aside the default judgment and grant a new trail was an abuse of discretion because a record of the trial was never made. 5