IN THE SUPREME COURT OF TEXAS
════════════
No. 04-0516
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Mary Mathis,
Petitioner,
v.
Joseph F. Lockwood,
Respondent
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On Petition for Review from
the
Court of Appeals for the Fifth District of
Texas
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PER
CURIAM
Mary Mathis, appearing pro se, appeals the trial court’s refusal to set
aside a post-answer default judgment against her. The court of appeals affirmed,
holding Mathis failed to overcome a presumption that she received notice of the
trial setting. 132 S.W.3d 629, 632. Finding neither presumption nor evidence to
support this conclusion, we reverse and remand to the trial court for a new
trial.
Mathis and
her two children lived with respondent Joseph Lockwood for some period of time
before suit. When the relationship soured, Lockwood filed suit seeking a
declaration that he and Mathis were not common-law spouses, and the return of
property he claimed Mathis had stolen. Mathis apparently filed an answer, though
it is not in the record.
The case was
set for trial December 13, 2002, before a visiting judge. Mathis did not appear.
After brief testimony from Lockwood, a post-answer default judgment was rendered
in his favor.
On January 9,
2003, Mathis filed a “Motion for a Request Rehearing” asserting she never
received notice of the December 13th trial. She testified to the same effect at
a hearing on the motion before the court’s presiding judge on February 4th.
Conversely, Lockwood’s counsel testified that notice was sent to Mathis’s last
known address and her former attorney. None of the witnesses were sworn, and
while the reporter’s record indicates Lockwood’s counsel tendered a document to
the judge at this hearing, none appears in the reporter’s record.
The trial court refused to set aside the default judgment.
For many
years, a post-answer default 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. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.
1987) (citing Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex.
1939)).
When the
first element is established by proof that the defaulted party was not given
notice of a trial setting, we have dispensed with the second element for
constitutional reasons. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988)
(citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988)).
For the same
reasons, the court of appeals also dispensed with the third element. 132 S.W.3d
at 631; accord In the Matter of the Marriage of Lisa Ann Runberg, 159 S.W.3d 194, 200 (Tex. App.CAmarillo
2005, no pet.); In the Matter of the Marriage of Brenda May Parker, 20
S.W.3d 812, 817-18 (Tex. App.CTexarkana
2000, no pet.). We need not reach that issue here, however, because in
any event Mathis’s sworn motion asserted that a new trial would not injure
Lockwood, and nothing in the record establishes the contrary. Cliff, 724
S.W.2d at 779-80 (requiring new trial as “there is nothing in the record to show
that a new trial will work an injury to [the plaintiff]”); see also Dir.,
State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.
1994) (holding Craddock elements may be established by affidavit, even if
not tendered as evidence at new trial hearing).
Thus, the
only question before us is whether Mathis established the first element. Her
sworn motion for new trial asserted that she failed to appear at the December
13th trial because she never received notice of the setting. At the
post-judgment hearing, Lockwood’s counsel testified that notice was sent to
Mathis, and Mathis denied receiving it. While statements by neither were under
oath, the oath requirement was waived when neither raised any objection in
circumstances that clearly indicated each was tendering evidence on the record
based on personal knowledge on the sole contested issue. Banda v. Garcia,
955 S.W.2d 270, 272 (Tex. 1997) (holding attorney’s unsworn statements tendered as evidence were sufficient
absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.
2005) (holding pro se litigants are governed by the same rules as attorneys).
The court of
appeals held that the trial court as fact finder could have concluded that
Mathis failed to overcome the presumption “that a trial court hears a case only
after proper notice to the parties” and “that she was notified of the trial
setting.” 133 S.W.3d at 631-32 (citing Hanners v. State Bar of Tex., 860 S.W.2d 903,
908 (Tex. App.CDallas
1993, no writ)). We disagree that there were any such presumptions on the facts
presented here.
It is true
that notice properly sent pursuant to Rule 21a raises a presumption that notice
was received. Tex. R. Civ. P.
21a; Cliff, 724 S.W.2d at 780. But we cannot presume that notice
was properly sent; when that is challenged, it must be proved according to the
rule.
Unlike
service of citation, Rule 21a allows service of notices by anyone competent to
testify. Tex. R Civ. P. 21a. When
a party or attorney of record serves the notice (as occurred here), “[t]he party
or attorney of record shall certify to the court compliance with this rule in
writing over signature and on the filed instrument.” Id. (emphasis
added). Like any other contemporaneous business record, this certificate bears
some assurance of trustworthiness as it was prepared as a matter of office
routine before any dispute about notice arose.
“A
certificate by a party or an attorney of record, or the return of the officer,
or the affidavit of any person showing service of a notice shall be prima facie
evidence of the fact of service.” Id. Here, the record contains no
certificate of service, no return receipt from certified or registered mail, and
no affidavit certifying service. Instead, the only evidence of service in the
record was the oral assurances of counsel. As the rule’s requirements are
neither vague nor onerous, we decline to expand them this far. As none of the
prerequisites for prima facie proof of service were met, the court of appeals
was incorrect in indulging a presumption that Mathis received the notice
Lockwood’s counsel sent.
Without this
presumption, there was no evidence that Mathis received notice of the trial
setting. Testimony by Lockwood’s counsel that notice was sent did not
contradict Mathis’s testimony that notice was never received. See id.
(“Nothing herein shall preclude any party from offering proof that the
notice or instrument was not received . . . .”). Even if the trial judge
disbelieved Mathis’s testimony, that would not provide affirmative evidence that
service occurred. See Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 512 (1984) (“When the testimony of a witness is not believed, the
trier of fact may simply disregard it. Normally the
discredited testimony is not considered a sufficient basis for drawing a
contrary conclusion.”).
No other
alternatives established service. Notice to Mathis’s former attorney was no
longer notice to Mathis after her attorney withdrew. Tex. R. Civ. P. 10; see, e.g.,
Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex. 1979) (holding pro se party
was charged with notice of all pleadings served on him, or on his attorney prior
to withdrawal). Notice to Mathis’s last known address was sent to Lockwood’s
home; Lockwood could not serve Mathis by serving himself. And counsel’s
statement at the trial that “I had my office call her and speak to her about
today’s hearing” shows no personal knowledge that notice was received, certainly
none 45 days before trial. Tex. R. Civ.
P. 245.
Citing Rule
21a’s provision that notice may be sent to a party’s last known address, the
court of appeals held that litigants have a duty “to keep the court and parties
apprised of their correct and current address.” 132 S.W.3d at 631. Not all
courts of appeals appear to agree. See Ewton v.
Gayken, 130 S.W.3d 382, 384-85 (Tex.App.CBeaumont
2004, pet. denied) (holding court clerk erred by sending dismissal notice to
attorney’s address of record rather than forwarding address printed on returned
envelope). But even assuming there is such a duty, unless noncompliance was
intentional rather than a mistake, due process requires some lesser sanction
than trial without notice or an opportunity to be heard. Peralta, 485
U.S. at 85‑86; Cliff, 724 S.W.2d at 779.
Because the
Craddock test was satisfied in this case, the trial court abused its
discretion in refusing to set aside the default judgment against Mathis.
Accordingly, without hearing oral argument, we grant Mathis’s petition for
review, reverse the court of appeals’ judgment, and remand the case to the trial
court for further proceedings consistent with this opinion. Tex. R. App. P. 59.1.
OPINION DELIVERED: June 17,
2005