Colby Duke Ellis v. The State of Texas--Appeal from 2nd District Court of Cherokee County

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2002 » Colby Duke Ellis v. The State of Texas--Appeal from 2nd District Court of Cherokee County

State: Texas

Court: Texas Northern District Court

Docket No: 12-01-00220-CR

Case Date: 09/18/2002

Plaintiff: Colby Duke Ellis

Defendant: The State of Texas--Appeal from 2nd District Court of Cherokee County

Preview:In the Interest of Halcyon Sadberry, a Child--Appeal from 310th District Court of Harris County
In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00098-CV ______________________________ IN THE INTEREST OF HALCYON SADBERRY, A CHILD On Appeal from the 310th Judicial District Court Harris County, Texas Trial Court No. 86-38359 Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Chief Justice Cornelius OPINION Rosalyn Sadberry appeals from an order modifying conservatorship of a minor child, Halcyon Sadberry. Sadberry argues that we should reverse the order and remand the case to the trial court because the court did not provide her counsel with notice of the trial setting and thus erred by proceeding with the hearing, and because the trial court erred by overruling her motion for new trial based on lack of notice. At the hearing on modification, counsel for Rosalyn Sadberry did not appear. Counsel for Earl Sadberry, the father, informed the court that he had sent opposing counsel a notice by facsimile on January 19, 2001, reminding him of the final trial date, and had previously sent him a notice by the same method. After a hearing, the trial court entered permanent orders in accordance with temporary orders that had previously been entered on October 25, 2000. The court then entered a "Final Default Modified Order." At the hearing on Rosalyn Sadberry's motion for new trial, facsimile transmissions sent to her counsel, Joseph Onwuteaka, were introduced into evidence. The court noted that the title line on the first page of the facsimile transmission referenced a different case. She then reviewed the following nine pages, which consisted of a certificate of discovery, a request for production, and a set of interrogatories, each of which correctly referred to this case by both name and number. The evidence also shows that the present case was the only case in which the two counsel in this case were opponents. Onwuteaka admitted receiving the facsimile transmission, but argued that because the first page of the document referenced a different case, the notice was inadequate. The trial court disagreed and overruled the motion for new trial. Rosalyn Sadberry first contends that the trial court erred by failing to send her counsel notice of the trial setting and that the court erred by proceeding to trial without such notice. (1) At the default hearing, the trial court stated affirmatively that Onwuteaka had been served notice of the hearing and had failed to appear. Opposing counsel confirmed this and also stated that she had sent Onwuteaka a notice on January 19, 2001, by facsimile reminding him of the trial date and that she had previously sent him a notice by the same method. (2) No evidence was introduced to show that notice was not given to Onwuteaka. Accordingly, we cannot conclude that the trial court erred by granting the default judgment. In her next issue, Rosalyn Sadberry argues that the trial court abused its discretion by overruling her motion for new trial based on lack of notice. In this argument, she relies on the requirement that once a defendant has made an appearance in a cause, she is entitled to notice of the trial setting as a matter of due process under the Fourteenth Amendment to the United States Constitution, as set forth in Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989).

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The trial court's decision on a motion for new trial after a post-answer default judgment is subject to review for abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987). Generally, that discretion must be guided by a three-part test. To grant the motion for new trial, the court must determine that: (1) the defendant's failure to appear before judgment was not intentional or the result of conscious indifference on the defendant's part, but was due to a mistake or accident; (2) the motion for new trial sets up a meritorious defense; and (3) the motion is filed at a time when its granting would not result in a delay or otherwise injure the plaintiff. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). A defendant who has made an appearance in a cause is entitled to notice of the trial setting as a matter of due process under the Fourteenth Amendment to the United States Constitution. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d at 390-91. A defendant who does not receive notice of a post-answer default judgment proceeding is deprived of due process. Id. A party who has been denied due process through lack of notice of a trial setting satisfies the first Craddock factor and is not required to meet the remaining requirements to be entitled to a new trial. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (holding that Peralta eliminated the second requirement as a matter of constitutional law in notice cases); Mahand v. Delaney, 60 S.W.3d 371 (Tex. App.-Houston [1st Dist.] 2001, no pet. h.); Smith v. Holmes, 53 S.W.3d 815, 817-18 (Tex. App.-Austin 2001, no pet. h.); see also Mosser v. Plano Three Venture, 893 S.W.2d 8, 12-13 (Tex. App.-Dallas 1994, no writ) (all holding that the third requirement is necessarily also eliminated in notice cases). If the party has no notice of the trial or hearing, then the party is entitled to have the default judgment set aside without consideration of the second and third requirements of Craddock. See LBL Oil Co. v. Int'l Power Servs. Inc., 777 S.W.2d at 390-91 (reviewing a notice defect in the context of a post-answer default judgment and reviewing the due process claim pursuant to Peralta and without reference to any other Craddock requirement). A form of notice was given in this case; Rosalyn Sadberry argues that it was inadequate. Thus, this situation differs from LBL, because the record in LBL established that the party had neither actual nor constructive notice of the hearing. Due process only requires reasonable notice under the circumstances. Peralta v. Heights Med. Ctr., Inc., 480 U.S. 80; Withrow v. Schou, 13 S.W.3d 37, 42 (Tex. App.-Houston [14th Dist.] 1999, pet. denied); Walker v. Brodhead, 828 S.W.2d 278, 280 (Tex. App.-Austin 1992, writ denied). We have previously held that when a copy of a letter requesting a specific date for trial or hearing is sent to the opposing party, the letter sufficiently informs the opposing party, putting them on notice. Withrow v. State Farm Lloyds, 990 S.W.2d 432, 435-36 (Tex. App.-Texarkana 1999, pet. denied). In this case, the trial court was presented with evidence of the facsimile transmission and with testimony by counsel that she had discussed the case with someone in opposing counsel's office in connection with a possible settlement during mid-February, shortly before the hearing. The trial court serves as fact-finder at a hearing on a motion for a new trial and, accordingly, is the sole judge of the witnesses' credibility. See Harmon Truck Lines, Inc. v. Steele, 836 S.W.2d 262, 265 (Tex. App.-Texarkana 1992, writ dism'd); Jackson v. Mares, 802 S.W.2d 48, 51 (Tex. App.-Corpus Christi 1990, writ denied). Although Onwuteaka attempted to show that he had not received notice of the setting, it is clear that the trial court did not accept his position. See Hanners v. State Bar of Texas, 860 S.W.2d 903, 908 (Tex. App.-Dallas 1993, no writ). Although a slight excuse for failure to appear is sufficient, the first Craddock requirements are not satisfied if the evidence shows that the appellant ignored notice of the trial date or avoided notice and failed to make inquiries. See Sharpe v. Kilcoyne, 962 S.W.2d 697, 701 (Tex. App.-Fort Worth 1998, no pet.); O'Connell v. O'Connell, 843 S.W.2d 212, 217-18 (Tex. App.Texarkana 1992, no writ). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules or principles. The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985). As set out in more detail above, the evidence on the motion for new trial indicates that counsel did receive notice, although he believed the notice was legally inadequate because it was contained in "discovery papers." The evidence also shows that counsel was aware that this was the only case pending between him and counsel for Earl Sadberry. Rosalyn Sadberry did not satisfy the first Craddock factor because, with evidence that she had received notice of the

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impending trial, and in the absence of other intervening facts, the trial court could conclude that she intentionally or with conscious indifference failed to appear or otherwise participate in the trial. Thus, there is evidence from which the court could reasonably conclude that the notice given by opposing counsel was adequate to put counsel on notice of the impending hearing and that his failure to appear was conscious and deliberate. We conclude that the trial court did not abuse its discretion by failing to grant Rosalyn Sadberry's motion for new trial. The judgment is affirmed.

William J. Cornelius Chief Justice

Date Submitted: March 28, 2002 Date Decided: April 30, 2002

Do Not Publish

1. The Rules of Civil Procedure do not require the trial court to send the notice. Rule 246 of the Texas Rules of Civil Procedure requires the clerk to give notice of settings to any "non-resident attorney upon request by mail from such attorney, accompanied by a return envelope properly addressed and stamped." Tex. R. Civ. P. 246. There is nothing in the record to show that this rule applies or that its requirements were met, and the record affirmatively shows that Onwuteaka maintains his office in Harris County. Rule 246 requires that notice be given, but does not require a specific method that must be used by all courts to provide that notice. 2. Tex. R. Civ. P. 21a provides that all notices, other than citation, may be served by delivering a copy of the notice or document to the party, his duly authorized agent, or his attorney of record, and that electronic transmission is an acceptable means of service.

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