Leisha Rojas v. Robert Scharnberg

Opinion issued March 17, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-01039-CV

———————————

LEISHA ROJAS , Appellant

V.

ROBERT

SCHARNBERG ,

Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Case No. 6824

MEMORANDUM

OPINION

Leisha Rojas appeals a

default judgment against her in a child custody dispute between the parents for

possession and access to their son. In

early June 2009, the father, Robert Scharnberg, filed a Petition to Modify

Parent-Child Relationship. When Rojas

did not appear for trial, the court granted Scharnberg a default judgment. Rojas raises four issues on appeal, primarily

based on her contention that the trial court erred in denying her motion for

new trial. Because Rojas’s due process

rights were violated by a trial on the merits without proper notice to her, and

because she satisfied the requirements for a new trial set forth in Craddock v.

Sunshine Bus Lines, Inc. , 133 S.W.2d

124, 126 (Tex. 1939), we reverse the judgment of the trial

court and remand for further proceedings on the merits.

Background

This suit affecting a parent-child relationship (SAPCR)

arose when Scharnberg filed a Petition to Modify Parent-Child Relationship seeking

to modify Rojas’s possession and access to their son. Scharnberg requested the issuance of

temporary orders, a temporary restraining order, and a temporary injunction, as

well as reasonable attorney’s fees. On

the day the suit was filed, the trial judge granted a mutual temporary

restraining order and set a hearing for June 11 on the remaining issues.

Rojas was served and appeared in court for the June 11

hearing. The trial court placed her

under oath and advised her that the temporary injunction hearing was reset for

June 25. On June 22, Rojas mistakenly filed her answer with the Brazoria

County clerk, instead of filing it with the county district clerk or with the

court. Rojas’s answer was not forwarded

to the district clerk and was not in the court’s file until she attached it to

her Motion for New Trial. She appeared

again at the June 25 hearing, but Scharnberg “passed” on this hearing.

Ten days after the second hearing, Scharnberg’s attorney

sent a letter to Rojas advising her that “a hearing” was scheduled for July

29. The letter does not indicate the

type of hearing, reference any particular motion or request for relief that was

to be heard by the trial court on that date, or state that the hearing was for

a dispositive decision on the merits. The

day before the scheduled hearing, Rojas faxed a letter to Scharnberg’s attorney

stating that she would be unable to attend the July 29 hearing and requesting

that the hearing be rescheduled. There

is no evidence that Scharnberg responded to Rojas’s request.

Scharnberg appeared at the hearing on

July 29, but Rojas did not. Scharnberg

initially represented to the court that the hearing concerned his request for

temporary orders. After an

off-the-record discussion, Scharnberg stated that “[a]fter looking at our notice

letter to Ms. Rojas, it does indicate that we would be setting today for the

modification on final.” The trial

court’s docket sheet does not contain any entry between June 25 and July 29

showing that the case had been set for trial on July 29. The docket sheet contains a handwritten entry

dated July 29 that noted the case was “[s]et on the merits,” but does not state

when the trial setting was first announced. [1]

After hearing testimony from Scharnberg and his attorney, the

trial court rendered a default judgment in favor of Scharnberg. The “Default Order in Suit to Modify

Parent-Child Relationship” stated that Scharnberg appeared and announced ready

for trial on July 29, but Rojas “did not appear and wholly made default.”

Rojas timely filed her Motion for New

Trial along with a supporting

affidavit. Scharnberg did not

file a response to Rojas’ Motion for New Trial.

After an oral hearing, which consisted solely of attorney argument, the

trial court denied the motion for new trial.

Motion for New Trial After Default

Judgment

Rojas argues

the trial court erred in denying her motion for new trial on the default

judgment because she did not receive notice of the dispositive hearing on the

merits and she satisfies all the Craddock

factors for setting aside a default judgment.

I. Standard of

Review

We review the trial

court’s denial of a motion for new trial for an abuse of discretion. See In

re R.R. , 209 S.W.3d 112, 114 (Tex. 2006).

A trial court abuses

its discretion if its decision is arbitrary, unreasonable, and without

reference to guiding rules and principles.

See Goode v. Shoukfeh ,

943 S.W.2d 441, 446 (Tex. 1997); Imkie v. Methodist Hosp. , 326

S.W.3d 339, 344 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

II. Rojas’s Appearance

Rojas in her first issue contends that

she made an appearance in the trial court, and therefore was entitled under the

due process clause of the Fourteenth Amendment to the United States

Constitution to notice of all dispositive hearings and trial settings.

Generally, a plaintiff may take a

default judgment against a defendant who fails to file an answer. See Tex. R. Civ. P . 239. A defendant who fails to answer or appear is

not entitled to notice of a hearing on the default judgment. Wilson

v. Wilson , 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet.

denied). A defendant who makes an

appearance in the case, however, is entitled under the due process clause to

notice of a trial on the merits or a hearing on a motion for default

judgment. LBL Oil Co. v. Int’l Power Servs.,

Inc. , 777 S.W.2d 390 , 390–91 (Tex. 1989) ; In

re Marriage of Runberg , 159 S.W.3d 194, 197 (Tex.

App.—Amarillo 2005, no pet.) (holding that husband’s appearance in divorce suit

entitled him to notice of final hearing under due process).

In LBL , the defendant had filed a prior

pleading, but here Rojas did not file any pleadings with the court. Instead, she mistakenly filed her answer with

the county clerk’s office. Because she did

not file a written

answer, whether she made an “appearance” under Texas Rule of Civil Procedure

120 depends “on the nature and quality of the party’s activities in the

case.” See In re Marriage of Runberg , 159 S.W.3d at 198 (quoting Bradford

v. Bradford , 971 S.W.2d 595, 597

(Tex. App.—Dallas 1998, no pet.) ) .

A key issue in examining these activities is whether the

defendant takes any “affirmative action which impliedly recognizes the court’s

jurisdiction over the parties.” Serna

v. Webster ,

908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ).

Rojas

appeared twice in the courtroom according to her uncontroverted affidavit. Rojas did not testify on either occasion, but

she did inform the court of her intent to defend the lawsuit and her opposition

to the TRO. She further stated in her

affidavit that she “was sworn to appear on June 25, 2009.” We must accept these uncontroverted

statements as true. See Dir., State Emp. Workers’ Comp. Div. v. Evans , 889 S.W.2d

266 , 268–69 (Tex. 1994) (holding that trial court must accept as true

uncontroverted affidavits of moving party when determining whether party has

satisfied the elements to set aside default judgment).

Rojas

was not merely a “silent figurehead in the courtroom, observing the proceedings

without participating.” Bradford v. Bradford , 971 S.W.2d 595, 598 (Tex. App.—Dallas

1998, no pet.) . Merely observing

proceedings in the courtroom does not constitute an appearance. Id. In Bradford , the defendant appeared at two hearings, announced “ready,”

and testified at one of the hearings.

The defendant’s actions in Bradford constituted an appearance such that the

trial court’s failure to set aside the default judgment taken without notice to

the defendant was an abuse of discretion.

Id. at 598 .

This case is similar. Rojas

appeared twice, recognized the court’s jurisdiction over her, and made

affirmative statements to the court during the June 11 hearing that she intended

to defend the lawsuit. She therefore

made an appearance in the case no later than the second hearing on June 25.

III. Lack of Notice and Default Judgments

Rojas contends that because she made an appearance before

the July 29 hearing, she was entitled to notice of the trial setting as a

matter of due process.

A defendant who makes an appearance in the case is entitled

under the due process clause to notice of a trial on the merits or a hearing on

a motion for default judgment. LBL , 777 S.W.2d at 390–91. In LBL , the sole owner of the defendant

company filed a motion to dismiss alleging the Texas court did not have

personal jurisdiction. Id. at 390 . After the trial court

denied the motion to dismiss, the plaintiff moved for a default judgment

because the defendant had not filed an answer.

He did not, however, serve the defendant with the motion for default

judgment or notice of the default judgment hearing. The Texas Supreme Court reversed the default judgment

and held, “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 to the federal constitution.” Id. at 390–91.

Because the defendant

had no actual or constructive notice of the hearing on the motion for default

judgment, which effectively was his trial setting since it was dispositive of

the case, his due process rights were violated.

Id. at 391.

The

requirement that a defendant receive notice of a trial setting applies to a

hearing on a default judgment because it constitutes a “trial setting” dispositive

of the case. Bradford , 971 S.W.2d at 597 ; Murphree v. Ziegelmair ,

937 S.W.2d 493, 495 (Tex. App.—Houston [1st Dist.] 1995, no writ). The failure to provide the defendant with

notice of the trial setting deprives the defendant of his constitutional right

to be present and to voice his objections in an appropriate manner. Bradford ,

971 S.W.2d at 597 . “A fundamental

element of due process is adequate and reasonable notice of proceedings.” Murphree , 937 S.W.2d at 495 (quoting Green

v. McAdams ,

857 S.W.2d 816, 819 (Tex. App.—Houston [1st Dist.] 1993, no writ)).

As in LBL , the defendant here, Rojas, was

not given any notice of a hearing on a default judgment or of a trial on the

merits. There is no certificate of service on the letter notifying Rojas of the

hearing and the letter was not signed.

It contained only a vague reference to a hearing on July 29; it did not

state that the hearing concerned a disposition on the merits. Thus, even though Rojas made an appearance, she was not

given notice of the default judgment hearing.

Scharnberg responds

that Rojas waived her right to receive 45 days notice of the trial setting as

required by Texas Rule of Civil Procedure 245. Scharnberg cites In re

Marriage of Parker , 20 S.W.3d 812, 818 (Tex. App.—Texarkana 2000, no pet.),

for the proposition that a defendant waives the right to 45 days notice by not

taking any action after receiving notice of the trial setting in less than 45

days. Scharnberg asserts that Rojas knew

of the hearing and deliberately chose not to appear. Parker is

not responsive to Rojas’s contentions.

Rojas is not contending that she did not receive any notice whatsoever;

she claims she did not receive any notice that the scheduled hearing was the

final hearing on the merits or a hearing on a default judgment.

We conclude,

therefore, that the default judgment was in violation of Rojas’s due process

rights.

IV. Craddock and the Failure to Give Notice

As part of her first issue, Rojas

contends that the trial court abused its discretion in denying her motion for

new trial because a defendant whose due process rights have been violated by a

default judgment is entitled to a new trial without the necessity of meeting

the three prong test for a new trial set forth in Craddock .

There is some debate among the

courts of appeal whether a defendant whose due process rights are violated by a

default judgment rendered without proper notice must also satisfy the Craddock factors for setting aside a

default judgment. In Craddock , the Texas Supreme Court set forth

three requirements that a defendant must satisfy to set aside a default

judgment and grant a new trial: (1) the failure to file an answer or appear at

a hearing was not intentional or the result of conscious indifference, but was

a mistake or accident; (2) a meritorious defense; and (3) a new trial will not

result in delay or prejudice to the plaintiff.

Craddock , 133 S.W.2d at 126 . The same

prerequisites for setting aside a no-answer default judgment also apply to a

post-answer default judgment. Dir., State Emp. Workers’ Comp. Div. , 889 S.W.2d at 268 .

A trial court abuses its discretion by not granting a new trial when all

three elements of the Craddock test

are satisfied. Id. ; Blake

v. Blake , 725 S.W.2d 797, 800 (Tex.

App.—Houston [1st Dist.] 1987, no writ).

A defaulted defendant who never

received notice of a trial setting does not need to meet all the Craddock requirements. The defendant in that situation satisfies the

first Craddock prong that the failure

to file an answer or appear was not intentional or the result of conscious

indifference. Mathis v. Lockwood , 166 S.W.3d 743, 744 (Tex. 2005); Texas Sting, Ltd. v. R.B. Foods, Inc. , 82 S.W.3d 644, 650 (Tex. App.—San

Antonio 2002, pet. denied). [2] The defendant also does not need to show the

second prong of a meritorious defense. Mathis , 166 S.W.3d at 744 . The Texas Supreme Court has not addressed

whether the defendant must still satisfy the third prong of lack of injury to

the plaintiff. Id. ; see Dolgencorp of Texas,

Inc. v. Lerma , 288 S.W.3d 922 , 927 n.1 (Tex. 2009) (stating Court need not

address whether court dispenses with third Craddock

prong in lack of notice default judgment because defendant demonstrated all

three prongs on appeal).

This court, however, has held that the defendant does not

need to prove either the second or third Craddock

factors when setting aside a default judgment for lack of notice of the

dispositive hearing. See Garcia v. Vera , No. 01-05-1161-CV,

2006 WL 2865033 , at *4 (Tex. App.—Houston [1st Dist.] Oct. 5, 2006, no pet.)

(holding in SAPCR proceeding that defendant who did not receive notice of trial

setting did not need to satisfy last two Craddock

factors); see also Mahand v. Delaney ,

60 S.W.3d 371, 375 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (holding in

lack-of-notice cases party does not need to satisfy second and third Craddock factors and stating that “there

is no logical or jurisprudential reason not to apply the same due process

analysis to both the second and third prongs” of Craddock ); see Green v.

McAdams , 857 S.W.2d 816, 819 (Tex. App.—Houston [1st Dist.] 1993, no writ)

(holding that imposing burden to show any of Craddock factors on defendant who did not receive notice of trial

setting “would violate due process.”). [3] Rojas, therefore, did not need to establish

the third Craddock prong.

Finally, Rojas contends in her second issue that she satisfies

the first and third prongs of Craddock regardless. We agree.

Rojas demonstrated through her uncontested affidavit that her failure to

appear at trial was not the result of conscious indifference. While she was aware of a scheduled hearing,

she was not given notice that the case was set for final disposition that

day. Her failure to file an answer was

also not the result of conscious indifference but resulted from her misfiling

the answer to the county clerk rather than the district clerk. In re Marriage of

Parker , 20 S.W.3d 812, 817 (Tex. App—Texarkana 2000, no pet.)

(stating that “if the defendant did not receive notice of trial, it cannot be

said that he acted intentionally or out of conscious indifference”). Even a slight excuse is sufficient to satisfy the first prong

of Craddock . P &

H Transp., Inc. v. Robinson , 930 S.W.2d 857, 861 (Tex. App.—Houston [1st

Dist.] 1996, writ denied); see also

Garcia , 2006 WL 2865033 , at *4 (noting that under liberal construction of Craddock in a SAPCR proceeding an

uncontroverted “slight excuse” for failing to appear at trial satisfies first

prong).

Rojas also satisfied the third prong of Craddock that a new trial will not result in delay or

prejudice to Scharnberg. She asserted in

her motion for new trial that granting a new trial would not cause delay and

her affidavit stated that she would be ready for trial at the court’s earliest

convenience. Scharnberg did not contest

her affidavit and offered no evidence to demonstrate injury. In fact, he did not reply to her motion for

new trial at all. See

Old Republic Ins. Co. v. Scott , 873 S.W.2d 381, 382 (Tex. 1994) (explaining that it is

well-settled that defendant satisfies burden if plaintiff fails to controvert

defendant’s factual assertions in motion for new trial affidavits); s ee

also Parker , 20 S.W.3d at 816 n.2 (stating that trial court is bound

to accept as true movant’s affidavits in support of motion for new trial after

default judgment, unless opponent requests evidentiary hearing). Rojas did not offer to pay

Scharnberg’s attorney fees at the motion for new trial, but such an offer is

not a precondition for granting a motion for new trial to set aside a default

judgment. Cliff v. Huggins , 724 S.W.2d 778, 779 (Tex. 1987) (citing Angelo v. Champion Rest. Equip. Co. , 713

S.W.2d 96, 97 (Tex. 1986)).

V. Craddock

and SAPCR Proceedings

Scharnberg

contends that we should not apply the Craddock test in a suit affecting

the parent-child relationship (SAPCR) but rather allow the trial court to make

its ruling based on the best interests of the child. Scharnberg suggests

that we follow the reasoning of Lowe v. Lowe , 971 S.W.2d 720, 725 (Tex.

App.—Houston [14th Dist.] 1998, pet. denied).

In that case, the court stated its “reluctance to apply” Craddock to a SAPCR proceeding and that

it did not believe Craddock “is an appropriate test for suits involving

the parent-child relationship.” See

also Little v. Little , 705 S.W.2d 153, 154 (Tex. App.—Dallas 1985,

writ dism’d) (holding “that the best interests of the child override strict

application of the Craddock test”).

We note as an

initial matter that the court in Lowe applied Craddock despite its reluctance, noting that “absent

contrary guidance from the supreme court, we remain bound to apply Craddock .” Lowe , 971 S.W.2d at 725 . We agree that Craddock applies. Moreover,

our court has previously held that this line of cases does not warrant

jettisoning the Craddock factors. Garcia , 2006 WL 2865033 , at *4. Instead, we apply those factors “very

liberally to the facts of each case.” Id.

We do agree with

Scharnberg that the child’s best interest is the paramount concern in a SAPCR.

But the trial court may well be aided in determining the best interests of the

child by a proceeding in which both parents participate. To increase the likelihood of such

participation, a parent in a SAPCR needs to provide the other parent with adequate

and reasonable notice of the time and nature of any hearing.

We decline

Scharnberg’s invitation to modify the Craddock

test for a SAPCR and sustain Rojas’s first issue.

Conclusion

The

trial court abused its discretion in failing to set the default judgment aside

and grant a new trial. We do not need to

reach Rojas’s third and fourth issues because of this conclusion. The judgment is reversed and the cause is

remanded for a new trial.

Harvey Brown

Justice

Panel consists of Justices Jennings, Higley, and

Brown.

[1] Scharnberg

asserts that the docket sheet shows that the case was set for the July 29 trial

well before that date. We disagree with

his reading of the docket sheet because nothing indicates when the “Set on

Merits” notation was made other than the date itself, which was July 29. More importantly, “In general, a docket entry

forms no part of the record that may be considered on appeal; instead, it is

merely a memorandum made for the convenience of the clerk and the trial

court. One reason for not considering

docket entries on appeal is that they are inherently unreliable.” In re K.A.C.O. , No. 14-07-00311-CV,

2009 WL 508295 , at *4 (Tex. App.—Houston [14th Dist.] Mar. 3, 2009, no pet.)

(citations omitted).

[2] Scharnberg further argues

that Rojas acted with conscious indifference because she received notice of a

hearing that could result in an order affecting her rights to her child. But Rojas had no notice of a hearing that

could result in a final disposition of the case. Based on the prior

history of the case, she could have reasonably believed, as Scharnberg’s

attorney stated at the commencement of the hearing, that the hearing concerned

the same temporary matters that had previously been set for hearing. A temporary order is far different than a

final order. Scharnberg does not provide

any authority that notice that does not specify that the hearing will address a

final disposition of the case means that a defendant who disregards it is

consciously indifferent to the risk of a default judgment in the case. More importantly, the due process clause

guarantees the right to reasonable and adequate notice of a trial setting or

dispositive proceeding, neither of which were provided to Rojas. Murphree ,

937 S.W.2d at 495 .

[3]

Numerous courts have found that a trial court abuses its discretion in

denying a motion for new trial when the defendant was not provided notice of

the trial or default hearing without reviewing whether the Craddock factors have been satisfied or because the Craddock elements are inapplicable in

that situation. See, e.g. , Bradford , 971

S.W.2d at 598 (stating that it was unnecessary to reach argument that defendant

was entitled to a new trial under Craddock

because he did not receive notice of default judgment hearing as required by

due process); Murphree v. Ziegelmair ,

937 S.W.2d 493 , 495–96 (Tex. App.—Houston [1st Dist.] 1995, no writ) (stating that trial court’s failure to give notice that a party’s

post-answer failure to attend a pretrial conference could result in a default judgment

violated right to due process without any analysis under Craddock ); Moreno v. Polinard ,

No. 04-08-00493-CV, 2009 WL 475953 , at *1 (Tex. App.—San

Antonio Feb. 25, 2009, no pet.) (ignoring Craddock

requirements and holding that trial

court erred in granting default judgment against a defendant who had not filed

an answer, but had made an appearance and did not receive notice of default

judgment hearing).

Other courts have held that the Craddock

factors are modified and that it is only necessary to satisfy the first Craddock element that the failure to

attend the final hearing was not intentional or the result of conscious

indifference. Tex. Sting, Ltd. v. R.B. Foods, Inc. , 82 S.W.3d 644 , 651–52 (Tex.

App.—San Antonio 2002, pet. denied) (holding trial court rendered post-answer

default judgment without proper notice so defendant relieved from establishing

second and third prongs of Craddock

and that the first prong is satisfied by proving the due process violation); In re Marriage of Parker , 20 S.W.3d 812,

817 (Tex. App.—Texarkana 2000, no pet.) (holding that when defendant did not

receive notice, the motion for new trial should be reviewed under first Craddock prong, but not the second and

third prongs).

Still other courts have held that a party who demonstrates that it has

been denied due process through lack of notice of a trial setting has

necessarily satisfied the first element. Smith

v. Holmes , 53 S.W.3d 815, 817 (Tex. App.—Austin 2001, pet. denied); see also Coastal Banc SSB v. Helle, 48

S.W.3d 796 , 801 n.6 (Tex. App.—Corpus Christi 2001, pet. denied) (holding

that the defendant satisfied the first element by demonstrating that it did not

receive notice of the hearing and stating that the court did not have to

address the last two prongs of Craddock ) .

As explained in Smith , a party could not intentionally

or with conscious indifference fail to appear or otherwise participate in the

trial when the party does not receive notice of the trial. Smith ,

53 S.W.3d at 818 .