Jerry Hamel v. Providence Construction, Inc.--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00766-CV

Jerry HAMEL,

Appellant

v.

PROVIDENCE CONSTRUCTION, INC.,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CI-08063

Honorable Fred Shannon, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 8, 2004

REVERSED AND REMANDED

BACKGROUND

Appellant, Jerry Hamel, appeals from the trial court's entry of a post-answer default judgment against him in favor of appellee, Providence Construction, Inc. Providence brought suit against Hamel on June 1, 2001. Subsequent to filing a general denial, Hamel's trial counsel withdrew from the case leaving Hamel to act pro se. The trial court's withdrawal order stated that "all further notice in this litigation to the plaintiff shall be served upon Jerry Hamel at his last known address, 16422 Nacogdoches, San Antonio, Texas 78247." Subsequent to Hamel's counsel's withdrawal, Providence mailed Hamel a motion to enter docket control orders, a motion to set a new trial date in a separate suit brought by Hamel against Providence, and a motion to set a trial date in this case. Providence served these motions on Hamel by way of certified mail, return receipt requested, and by regular mail. The certified mail was returned "unclaimed," but the regular mail was not returned. On April 10, 2003, after Hamel failed to appear at the hearing on these motions, the trial court granted Providence's motions and set the case for a non-jury trial on June 2, 2003. Providence mailed the trial court's order setting the case for trial by certified mail, return receipt requested, and by regular mail. Although the regular mail was not returned, the certified mail was again returned as unclaimed on May 3, 2003, this time bearing a post office label stating "NOTIFY SENDER OF NEW ADDRESS: Hamel, 2689 Junction Hwy, Kerrville, TX, 78028-9359." On June 2, 2003, Hamel failed to appear for trial, and accordingly, after hearing evidence from Providence, the trial court entered a default judgment awarding Providence damages. On September 17, 2003, after receiving notice of the judgment against him, Hamel filed a motion for a new trial and a motion to extend post-judgment deadlines arguing he did not receive notice of the June trial setting. The trial court granted Hamel's motion to extend post-judgment deadlines, but denied his motion for a new trial. Hamel's appeal ensued.

POST-ANSWER DEFAULT JUDGMENT

In his first issue on appeal, Hamel contends the trial court erred in denying his motion for new trial because he established he did not have notice of the trial setting. In addition, Hamel argues that he satisfied the requirements for a new trial as set forth by Craddock v. Sunshine Bus Lines, 133 S.W.2d 123 (Tex. 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. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). This notice can be accomplished by delivering a copy to the party to be served either in person or by agent or by courier receipted delivery or by certified or registered mail, to the party's last known address, or by telephonic document transfer to the recipient's current telecopier number, or by such other manner as the court in its discretion may direct. Tex. R. Civ. P. 21a. A defendant who does not receive notice of a post-answer default judgment proceeding is deprived of due process. LBL Oil Co., 777 S.W.2d at 390-91.

A trial court must set aside a post-answer default judgment when the defendant satisfies the test articulated in Craddock. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987). According to Craddock, the trial court must set aside a default judgment when the defendant demonstrates that: (1) his failure to appear was not intentional or the result of conscious indifference; (2) he has a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury to the opposing party. Id. at 779. Importantly, when a party receives no notice of a trial setting, he satisfies the first prong of Craddock and does not have to meet the remaining prongs of the test to be entitled to a new trial. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam). When the defendant satisfies the requirements of the Craddock test, the trial court abuses its discretion when it denies a motion for new trial. Cliff, 724 S.W.2d at 779.

In order to demonstrate that he did not have notice of the June trial setting, Hamel offered his affidavit stating that: (1) he was pro se at the time the trial court rendered judgment; (2) he did not have notice of any pleadings filed by Providence; (3) he never received the April 10, 2003 scheduling order; (4) he never received notice of the trial date; (5) had he received notice of the trial date, he would have personally appeared and defended himself; and (6) he had no notice of any proceedings until he was served with a copy of the judgment, which did not occur until August 27, 2003. In response, Providence offered the affidavits of its attorney and legal assistant to establish that it attempted to serve Hamel with notice of the trial setting by certified mail. However, Providence did not controvert the assertions in Hamel's affidavit stating that he did not receive notice. (1) If the plaintiff does not controvert the factual assertions in the defendant's affidavit, the defendant satisfies his or her burden if the affidavit sets forth facts that, if true, negate intent or conscious indifference. Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994). Here, Hamel's uncontroverted affidavit set forth facts demonstrating that his failure to appear was not intentional or the result of conscious indifference.

Providence also argued Hamel had constructive notice of the trial setting because he engaged in the practice of selective acceptance/refusal of certified mail. We disagree. Plaintiffs attempted to serve Hamel with notice of the June 2nd trial setting once, on April 10th. The April 10th certified mail was returned "unclaimed" and, according to the affidavits of plaintiffs' counsel and legal assistant, the regular mail was not returned. However, the "fact the notice sent by regular mail was not returned [is] not evidence of 'selective acceptance/refusal of certified mail.'" See Pessel v. Jenkins, 125 S.W.3d 807, 810 (Tex. App.--Texarkana 2004, no pet.).

Because no evidence controverts Hamel's unequivocal statement that he did not receive notice of the trial setting, Hamel satisfied the first requirement under Craddock and he is not required to satisfy the remaining requirements. Therefore, we conclude the trial court erred in denying Hamel's motion for a new trial.

CONCLUSION

We reverse the trial court's judgment and remand the cause for further proceedings.

Sandee Bryan Marion, Justice

1. Providence offered two other affidavits in addition to those of their attorney and legal assistant, but the trial court did not consider them; therefore, we do not consider them in our review.