Mario G. Zuniga v. Elsa Zuniga--Appeal from 57th Judicial District Court of Bexar County

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Laws-info.com » Cases » Texas » 4th District Court of Appeals » 1999 » Mario G. Zuniga v. Elsa Zuniga--Appeal from 57th Judicial District Court of Bexar County

State: Texas

Court: Texas Northern District Court

Docket No: 04-98-00474-CV

Case Date: 12/15/1999

Plaintiff: CLIFTON JONES

Defendant: TEXAS DEPARTMENT OF CRIMINAL JUSTICE-CORRECTIONAL INSTITUTIONS DIVISION--Appeal from 343rd District

Preview:Mario G. Zuniga v. Elsa Zuniga--Appeal from 57th
Judicial District Court of Bexar County
MAJORITY | MAJORITY
No. 04-98-00474-CV
Mario G. ZUNIGA,
Appellant
v.
Elsa ZUNIGA,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 96-CI-10507
Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Phil Hardberger, Chief Justice
Dissenting opinion by: Karen Angelini, Justice
Sitting: Phil Hardberger, Chief Justice
Alma L. L pez, Justice
Karen Angelini, Justice
Delivered and Filed: December 15, 1999
REVERSED AND REMANDED
Mario G. Zuniga ("Mario"),(1) an incarcerated individual, appeals the entry of a final decree of divorce. In his sole
point of error, Mr. Zuniga asserts that the trial court committed error by entering a post-answer default judgment in
favor of his wife, Elsa Zuniga ("Elsa"), as to the decree of divorce. We reverse the decree of divorce and remand the
case to the trial court.
Background
The following events are relevant to the case:
1) July 19, 1996: Elsa files Original Petition for Divorce.
2) January 9, 1998: Mario files "Dispute Petition for Divorce."
3) January 9, 1998: Mario files Original Answer.
4) February 23, 1998: Mario files Motion for Issuance of Bench Warrant and Motion for Appointment of Counsel.
5) March 20, 1998: Mario files Respondent's Original Answer.
6) March 23, 1998: Trial Court holds hearing on Elsa's Original Petition for Divorce. Following testimony by Elsa, the
court stated, in part:
Court has reviewed the file. Mr. Zuniga was served, did file some type of answer. He has not appeared today and has
defaulted on this matter. Based on the testimony by Mrs. Zuniga, I will go ahead and grant the divorce today and grant
the relief that's been requested, including the visitation of over at [sic] KidShare.
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7) April 1, 1998: Mario files Motion for Issuance of Bench Warrant and Motion for Appointment of Counsel.
8) April 6, 1998: Mario files Notice of Appeal.
In his sole point of error, Mario claims that the trial court erred in granting a post-answer default judgment. He asserts
that he was unable to be present at the divorce hearing due to the trial court's failure to grant a bench warrant that
would have allowed him to attend the trial. This would be difficult to argue against as he was in jail at the time. Elsa
responds that the trial court did not err in entering judgment when Mario did not appear at trial because: 1) the record
on appeal supports the judgment, 2) there is no reason to conclude that the outcome of the trial would have been
different if Mario had appeared, and 3) Mario "did not offer to do equity by offering to reimburse [Elsa] for her
expenses to take the default judgment."
Discussion
1. Standard of Review
We review the trial court's entry of judgment under the abuse of discretion standard. "An abuse of discretion will be
found only when the trial court's action is arbitrary, unreasonable, or without reference to guiding rules and principles."
Washington v. McMillan, 898 S.W.2d 392, 394 (Tex. App.-San Antonio 1995, no writ); see Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
2. Access to Courts
Individuals who are incarcerated do not automatically lose their access to the courts as a result of their incarcerated
status. See Hudson v. Palmer, 468 U.S. 517, 523 (1984). Incarcerated individuals, whether they are defendants or
plaintiffs in civil actions, do not have an absolute right to appear in person. See Pruske v. Dempsey, 821 S.W.2d 687,
689 (Tex. App.-San Antonio 1991, no writ); Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App.-Fort Worth 1989,
writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.-Dallas 1987, no writ). This court has already
reconciled the tension between the inmate having an absolute right to access the courts and the inmate not having a
right to appear in person. In addressing these competing demands, we have addressed the importance of a trial court
giving consideration to an incarcerated individual's desire to appear in person. See Pruske, 821 S.W.2d at 689; see also
Byrd v. Attorney General, 877 S.W.2d 566, 569 (Tex. App.-Beaumont 1994, no writ). In so doing, this court has
articulated several factors that the trial court should consider in attempting to "strike a balance that is fundamentally
fair:"
a) the cost and inconvenience of transporting the prisoner between his place of incarceration and the courtroom;
b) the security risk and potential danger to the court and public of allowing the prisoner to attend court;
c) whether the prisoner's claims are substantial;
d) whether a determination of the matter can reasonably be delayed until the prisoner is released;
e) whether the prisoner can and will offer admissible, noncumulative testimony which cannot be offered effectively by
deposition, telephone, or otherwise;
f) whether the prisoner's presence is important in judging his demeanor and credibility compared with that of other
witnesses;
g) whether the trial is to the court or to a jury; and
h) the prisoner's probability of success on the merits.
Pruske, 821 S.W.2d at 689 (citing Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976)); see Nance v. Nance, 904
S.W.2d 890, 892 (Tex. App.-Corpus Christi 1995, no writ); see also Ballard v. Spradley, 557 F.2d 476, 481 (5th Cir.
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1977).
3. Actions by the Trial Court and Options Available
The record reflects that the trial court did not respond to, or consider, Mario's requests for a bench warrant and
appointment of counsel. The record does not indicate that the trial court gave consideration to the factors weighing in
favor of Mario's request to appear at the hearing. The record is replete with Mario's attempts to mount a defense from
his place of confinement. Absent from the Reporter's Record is Mario's evidence in opposition to Elsa's petition for
divorce.(2) He was not permitted to be present at what actually amounted to an ex parte hearing. The trial court did not
seem concerned at his absence: "[He] did file some type of answer. He has not appeared today and has defaulted on
this matter." In the absence of the trial court's consideration of Mario's request to appear in person, there is nothing in
the record to show that the trial court attempted to strike a fair balance between the integrity of the correctional system
and his right of access to the courts. See Pruske, 821 S.W.2d at 689; Brewer v. Taylor, 737 S.W.2d 421, 423-34 (Tex.
App.-Dallas 1987, no writ).
Methods exist that a trial court may use to allow an inmate to participate in a hearing or trial. If the trial court had
concluded that Mario's presence was unnecessary in order to enter the decree of divorce, the trial court could have
afforded Mario the chance to "proceed by affidavit, deposition, telephone or other effective means." In re Ramirez, 994
S.W.2d 682, 684 (Tex. App.-San Antonio 1998, no pet.) (quoting Byrd, 877 S.W.2d at 569); see Holt v. Pitts, 619 F.2d
558, 562 (6th Cir.1980). This did not happen.
Mario's case is unlike that of an incarcerated plaintiff who chooses to file suit while in prison and whom the trial court
does not permit to attend court in person. See, e.g., Nichols v. Martin, 776 S.W.2d 621 (Tex. App.-Tyler 1989, no
writ); Birdo v. Holbrook, 775 S.W.2d 411 (Tex. App.-Fort Worth 1989, writ denied). In the present case, Elsa made
Mario a respondent in a suit that sought to dissolve their marriage and alter the parent-child relationship with their
daughter, Theresa. He did not initiate the suit. He had a right to be heard, especially considering that the suit affected
his parental rights. Trial courts need to articulate the factors that weigh both in favor and against issuing a bench
warrant and, if necessary, make alternative arrangements for inmates to present their side of disputes to the court. We
conclude that the trial court abused its discretion in entering judgment against Mario.
4. Mario is Entitled to a New Trial
Elsa argues that under the three-part test announced in Craddock, Mario is not entitled to a new trial. See Craddock v.
Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939) (requiring 1) that the defendant's failure to
appear not be intentional, 2) the defendant to establish a meritorious defense, and 3) the filing of the motion for new
trial be "at a time when the granting thereof" will not be injurious to the plaintiff). We disagree. Not only has Mario
satisfied the requirement of filing a Motion for New Trial, but he has also met his burden under Craddock in light of
the circumstances.
a. Prerequisite
A motion for new trial is a prerequisite to complaining on appeal that a default judgment should be set aside. See Tex.
R. Civ. P. 324(b)(1); cf. Craddock, 134 Tex. at 393, 133 S.W.2d at 126 (outlining the factors used to determine
whether a defendant's motion for new trial will be successful in setting aside a default judgment). Although we are not
aware of a Texas court that has reversed a default judgment on appeal when a defendant failed to file a motion for new
trial as required by Rule 324(b)(1), at least one New Jersey court has reversed a default judgment when an
incarcerated defendant was unable to attend the trial. See Beneficial of New Jersey v. Bullock, 679 A.2d 723, 724 (N.J.
Super. Ct. App. Div. 1996) (declaring that in light of the circumstances of the case, "it would be inappropriate to
permit the entry of default judgment against a non-appearing defendant who could not appear" and stating that "before
a default judgment can be entered against an inmate for 'nonappearance,' the trial court must treat with liberality an
inmate's endeavor to defend") (emphasis added).
b. Mario's Filing Construed As a Motion for New Trial
In the present case, Mario, a pro-se inmate, filed a Notice of Appeal on April 6, 1998 (which was within the trial
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court's plenary jurisdiction) that contains language not normally found in a traditional Notice of Appeal. See Brewer v.
Collins, 857 S.W.2d 819, 821 (Tex. App.-Houston [1st Dist] 1993, no writ); see also Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (per curiam) (holding the pro se complaint "to less stringent standards than formal pleadings drafted by
lawyers"). Specifically, the letter accompanying the Notice of Appeal requested the Bexar County District Clerk to
bring the Notice "to the attention of the 57th Judicial District Court." Such a request is customarily not found in a
traditional Notice of Appeal. The implication here is that Mario was affording the trial court the opportunity to correct
the default judgment that resulted when the trial court did not bench warrant Mario or obtain testimony from him. The
April 6, 1998 filing stated that the judgment could prejudice Mario "because the Court did not bench warrant
Respondent to attend the trial...."(3) We conclude that the substance of Mario's April 6, 1998 filing can be construed in
part as a motion for new trial necessary to satisfy Rule 324(b)(1). We turn next to the three-prong Craddock test.(4)
(1) Failure to Appear Was Not Intentional
Mario's failure to appear or be heard was not intentional or the result of conscious indifference, but occurred because
the court failed to issue a bench warrant or request his testimony. Although Mario requested the trial court to issue a
bench warrant, the trial court did not do so. The trial court did not seek any form of testimony from Mario that could
have reasonably substituted for an appearance under Pruske. We believe that Mario's incarcerated status and the trial
court's failure to issue a bench warrant for his attendance or allow an alternative means of participation, as he
explained in his April 6, 1998 filing, satisfies the first prong of Craddock.
(2) Mario Need Not Establish a Meritorious Defense
Because we have already concluded that the trial court did not afford Mario due process in adjudicating the dissolution
of his marriage, we need not examine whether Mario has established a meritorious defense in his pleadings. See
Peralta v. Heights Med. Ctr., 485 U.S. 80, 86-87 (1988) (stating that when a person has suffered a deprivation of
property in a manner contrary to due process, "it is no answer to say that in his particular case due process of law
would have led to the same result because he had no adequate defense upon the merits"); Morris v. Morris, 759 S.W.2d
707, 710-11 (Tex. App.-San Antonio 1988, writ denied). In the present case, the trial court ordered Mario to pay $3000
in attorney fees, divided the marital estate, ordered Mario to pay $264.52 per month in child support, and granted
judgment against Mario in the amount of $39,942.52 for retroactive child support. In light of the process Mario should
have received under Pruske, and his deprivation of property adjudged by the trial court (as well as the dissolution of
his marriage and alteration of the legal relationship with his daughter), we conclude that Mario need not set forth a
meritorious defense in order to be entitled to a new trial.
(3) No Delay or Injury
In construing his April 6, 1998 filing liberally, we intimate Mario's readiness for trial. He reminds the trial court that a
motion for bench warrant was filed with the trial court. As of April 6, 1998, the motion had not yet been ruled upon,
which suggests that Mario continued to desire his day in court. Mario's failure to offer reimbursement to Elsa for her
attorney's fees that she incurred at the first hearing should not necessarily preclude a new trial. See Angelo v.
Champion Restaurant Equip. Co., 713 S.W.2d 96, 98 (Tex. 1986). "Involved is an equitable principle, and the court
should deal with the facts on a case-by-case basis in order to do equity." Id. We note that in the present case, Mario is
without financial means to reimburse Elsa for the fees that she incurred in the first hearing.
(4) The Result
The April 6, 1998 pleading that we are construing in part as a motion for new trial satisfies the requirements under
Craddock in light of Peralta and its progeny. Mario pursued his defense with reasonable diligence and with the means
available to him from within the walls of the Goree Unit. Because he was effectively excluded from the proceedings
dissolving his marriage and his parental rights, the post-answer default judgment was improper. Equity and fairness
demand that he receive a new trial that comports with the requirements this court has stated in Pruske.(5)
Conclusion
We reverse and remand the case to the trial court for a new trial.
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PHIL HARDBERGER
CHIEF JUSTICE
DO NOT PUBLISH
1. For clarity, we refer to the parties by their first names.
2. The trial court made its decision "[b]ased on the testimony by Mrs. Zuniga."
3. Although Mario requested the appointment of an Attorney Ad Litem, the court took no action. Whether counsel was
appointed to assist or act on behalf of Mario is not influential upon the outcome of the case.
4. Mario is not introducing any evidence in his April 6, 1998 filing. He had previously filed sworn motions requesting
the trial court to issue a bench warrant. These pleadings, when construed liberally with the April 6, 1998 filing, fill any
evidentiary void necessary for the trial court to conclude that the trial court's failure to issue a bench warrant entitles
him (under Pruske) to a new trial.
Because he is not introducing any evidence in the April 6, 1998 filing, he need not attach any supporting affidavits in
support of his desire for a new trial. The purpose of such affidavits is to bring evidence before the court. See Justice
Michol O'Connor et al., O'Connor's Texas Rules-Civil Trials 3.2, at 548 (1999) (stating that affidavits are required
"when the motion for new trial is based on the grounds listed in TRCP 324(b)(1) or any other ground that requires the
presentation of evidence at a hearing") (emphasis added). A typical motion under Rule 324(b)(1) would have required
the presentation of evidence. Mario's case, as the facts demonstrate, is not typical.
5. Elsa argues that the judgment should be affirmed if it can be supported by any legal theory based on the evidence.
She also argues that the result would be the same even if Mario had appeared at trial. We disagree. If Mario were
present at the hearing, he may have been able to respond to Elsa's evidence, which may have undermined legal
theories in support of the current outcome. Also, Mario's testimony as to his indigent status and earning potential may
very well influence the award of attorney fees and child support. For example, Mario's hourly wage prior to his
incarceration was $6.00 per hour. Although awarding child support is within the discretion of the court, we note that
the amount in this case may have deviated from the child support guidelines; we believe that Mario testimony may be
influential in setting the amount that is in the best interest of his daughter. See Tex. Fam. Code Ann. 154.125, 154.130
(Vernon 1996). Mario's testimony may also affect the court's decisions as to other matters in the divorce decree, such
as the division of the marital estate and visitation, both of which are matters that are within the court's discretion.
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