Kevin Lynn Martin v. Shelly Hersem--Appeal from 247th District Court of Harris County

Opinion issued April 21, 2005.

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00565-CV

IN THE INTEREST OF T.S.M., A CHILD

On Appeal from the 247th District Court

Harris County, Texas

Trial Court Cause No. 1996-43582

MEMORANDUM OPINION

Appellant, Kevin Lynn Martin ( Martin ), challenges the trial court s order rendering a post-answer default judgment against him in favor of appellee, his former wife, Shelley Hersem ( Hersem ). In two issues, Martin asserts that the trial court abused its discretion in failing to grant his motion for new trial because (1) the trial court s rendition of a default judgment was improper and (2) Martin did not receive 45 days notice of the trial setting. We reverse and remand for a new trial.

Background

On August 11, 2003, Hersem filed a motion to modify the prior orders of the trial court, seeking to increase the amount of child support paid by Martin. Martin filed a pro se answer to the requested modification on September 23, 2003. On January 9, 2004, Hersem s attorney, Roy L. Moore ( Moore ), sent Martin notice of the February 16, 2004 trial setting that was scheduled to begin at 9:30 a.m. in the 247th District Court of Harris County, Texas.

On February 10, 2004, Ronald Hunter ( Hunter ) notified Moore that he had been retained to represent Martin in the pending case. In the same letter, Hunter also explained that he had a conflicting court setting in Fort Bend County on February 16, 2004 at 8:00 a.m., and Hunter asked Moore to assist him in resolving the conflict. Moore contacted the trial court coordinator, and the trial court agreed to set the trial to begin at 10:00 a.m. on February 16th instead of 9:30 a.m. Moore notified Hunter of the new trial setting in a letter dated February 13, 2004.

On the date of trial, Moore appeared for the 10:00 a.m. docket call. Neither Hunter nor Martin was present. At approximately 10:35 a.m., Hunter called Moore and informed him that he would be available at 1:30 p.m. With the approval of the trial court, Moore reset the case for 1:30 p.m. At approximately 12:30 p.m., Hunter called Moore again and stated that he would not be able to arrive at 1:30 p.m., but would instead be at the trial court by 2:30 p.m.

At 1:30 p.m., the trial court called the case for trial the second time. Moore informed the court that Hunter called and said that he would be late. The trial court asked Moore to inform the trial court upon Hunter s arrival. The trial court called the case for trial for the third time at approximately 3:00 p.m. The trial court announced that it was ready to proceed and rendered a default judgment against Martin.

At the hearing on the motion for new trial, Hunter asked the trial court to take judicial notice of a letter from Judge Ronald R. Pope, presiding judge of the 328th District Court in Fort Bend County. The letter explained that, on February 16, 2004, Hunter was involved in a final trial on the merits in the 328th District Court which lasted from 8:30 a.m. until 3:00 p.m in Fort Bend County. The trial court admitted the letter into evidence. The motion for new trial was denied.

Failure to Comply with Local Rules

Martin argues that the trial court abused its discretion in failing to grant his motion for new trial. Specifically, Martin contends that the default judgment was improper because the trial court failed to follow the local rules regarding conflicting engagements of counsel. // We agree.

Standard of Review

A motion to set aside a default judgment and obtain a new trial is addressed to the trial court s discretion, and the trial court s ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778(Tex. 1987). Notably, while trial courts have some measure of discretion in the matter, . . . it is not an unbridled discretion to decide cases as they might deem proper, without reference to any guiding rule or principle. Id. at 779 (citing Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124, 126 (Tex. 1939)).

Under the Craddock test, a default judgment should be set aside and a new trial ordered in any case where (1) the party s failure to appear was not intentional or the result of conscious indifference, (2) there is a meritorious defense, and (3) the granting of a new trial will not operate to cause delay or injury to the opposing party. Id. The prerequisites for granting a motion to set aside a trial court s default judgment also apply to a post-answer default judgment. Id.

Analysis

Martin relies on Dancy v. Daggett, 815 S.W.2d 548 (Tex. 1991) to support his argument that the trial court abused its discretion by proceeding with trial, thereby depriving him of his fundamental rights to be heard and to have counsel present in a contested case. See id. at 548. In Dancy, the trial court set a hearing on temporary orders in Dancy s divorce action on April 16, 1991. Id. at 549. After the setting, Dancy s attorney received notice of an April 16, 1991 hearing in federal court on a separate matter in which he was counsel of record. Id. Dancy s attorney filed a motion to reset, and the trial court reset the hearing in the divorce case for the next day. Id. On April 17th, the federal court judge informed the state trial court judge that Dancy s attorney s attendance was still required in federal court. Id. The state trial court judge, however, refused to postpone the hearing and granted a default judgment in favor of Dancy s wife. Id. The Texas Supreme Court held that the trial court s actions violated local rules regarding conflicts in docket settings and deprived Dancy of representation at the hearing on his divorce case. Id.

Just like in Dancy, here, almost one week before the trial setting, Hunter sent Moore a letter explaining that he had a conflicting engagement. In his letter to Moore, Hunter stated,

First, I would like to alert you that I have a hearing set in Fort Bend County on the 16th. It is an early setting (8:00 or 8:30 a.m.) and shouldn t take a long time, but I feel that I may not be able to arrive in the 247th by 9:30 a.m. My understanding is that this matter is just set on the trial docket for that day and may not be heard at exactly 9:30. Could you please confirm this and let me know if there is some resolution to my scheduling conflict.

Additionally, at the hearing on Martin s motion for new trial, Hunter introduced a letter from Judge Ronald R. Pope, presiding judge of the 328th District Court in Fort Bend County. The letter stated that, on February 16, 2004, Hunter was involved in a final trial on the merits in the 328th District Court which lasted from 8:30 a.m. until 3:00 p.m.

Accordingly, because Hunter promptly informed the Harris County court about his conflict in Fort Bend County and because Hunter introduced a letter from the presiding judge of the Fort Bend County court, which explained his failure to appear before the Harris County trial court on the date of trial, we hold that the trial court abused its discretion in failing to grant Martin s motion for new trial.

We sustain Martin s first issue.Conclusion

Having held that the trial court abused its discretion in failing to grant Martin s motion for new trial, we need not address Martin s second issue relating to the sufficiency of notice. We reverse the judgment of the trial court and remand for a new trial.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Hanks, and Bland.