default judgment hearing in Texas

2024See Highsmith v. Highsmith, 587 S.W.3d 771 , 778 (Tex. 2019) (per curiam) (“Most critically, a lack of notice violates basic principles of due process.”); LBL Oil Co. v. Int’l Power Servs, Inc., 777 S.W.2d 390, 390 (Tex. 1989) (per curiam) (reversing judgment in a post-appearance default judgment case where no actual or constructive notice of the dispositive hearing, a default judgment hearing, was shown in the record); see also Carillo, 2024 WL 2873635 , at *4 (same).

2023A default judgment hearing is equivalent to a trial setting because it is “[a] hearing that effectively disposes of the case.” Four-Thousand-Five-Hundred Twenty-Eight Dollars v. State, No. 08-03- 00239-CV, 2004 WL 1576779 , at *1 (Tex. App.—El Paso July 15, 2004, no pet.) (mem. op.) (citing LBL Oil Co. v. Int’l Power Servs., 777 S.W.2d 390, 391 (Tex. 1989)).

2014See id. (upholding damages award on affidavit testimony where no oral testimony was taken at the default judgment hearing).

2013See id. (upholding damages award on affidavit testimony where no oral testimony was taken at the default judgment hearing).

2024See Mathis v. Lockwood, 166 S.W.3d 743, 744, 746 (Tex. 2005) (per curiam) (holding defendant satisfied first element of Craddock test where “[h]er sworn motion for new trial asserted that she failed to appear at the December 13th trial because she never received notice of the setting”); see also Carillo v. Zaragoza, No. 05-23-00282-CV, 2024 WL 2873635 , at *4 (Tex. App.—Dallas June 7, 2024, no pet. h.) (mem. op.) (concluding same where client submitted an affidavit stating he received no notice of the default judgment hearing and attorney also testified unequivocally he never received notice o

2012Almendarez v. Valentin, 14-10-00085-CV, 2011 WL 2120115 , at *4 (Tex.App.-Houston [14th Dist.] May 24, 2011, no pet.) (mem. op.) (per curiam) (citing Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex.2005) (per curiam)).

2021See Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam) (citing Peralta, 485 U.S. at 80 ); see also Ayele v. Jani-King of Hous., Inc., 516 S.W.3d 630, 632 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“If the defaulting party establishes that it did not receive notice of the default judgment hearing, then it need not establish proof of a meritorious defense.”); Felt v. Comerica Bank, 401 S.W.3d 802, 806 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (concluding that when a default judgment is rendered against “a defendant who had no notice of the trial setting, the defendant is not r

2015The notice served on TMC was defective and thus, the default judgment hearing was void. ......................................................................7 CONCLUSION AND PRAYER ........................................................................................8 CERTIFICATE OF SERVICE .........................................................................................10 CERTIFICATE OF COMPLIANCE .................................................................................11 APPENDICES ............................................................................................

2021See Alexander, 134 S.W.3d at 850 (finding that the fact that the record is silent about the sending of notices under Texas Rule of Civil Procedure 165a does not establish error); Ginn, 282 S.W.3d at 433 (explaining in the context of a dismissal for want of prosecution that “[a]bsence of proof in the record that notice was provided does not establish error on the face of the record.”).

2016Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.2004).

2021P. 245 (providing that “[t]he court may set contested cases on written request of any party, or on the court’s own motion with reasonable notice of not less than forty- five days to the parties of a first setting for trial. . . .”); LBL Oil Co., 777 S.W.2d at 390–91 (recognizing a default judgment hearing as effectively a trial setting); Coastal Banc SSB v. Helle, 48 S.W.3d 796, 801 (Tex. App.—Corpus Christi–Edinburg, 2001, pet. denied) 10 (“A default judgment hearing is a trial setting as it is dispositive of the case.”).

2015The notice served on TMC was defective and thus, the default judgment hearing was void. ......................................................................7 CONCLUSION AND PRAYER ........................................................................................8 CERTIFICATE OF SERVICE .........................................................................................10 CERTIFICATE OF COMPLIANCE .................................................................................11 APPENDICES ............................................................................................

2021In fact, “[a] post-answer default judgment will only be valid if the defendant received notice of the default judgment hearing.” $429.30 v. State, 896 S.W.2d 363, 366 (Tex. App.—Houston [1st Dist.] 1995, no writ).

2021In fact, “[a] post-answer default judgment will only be valid if the defendant received notice of the default judgment hearing.” $429.30 v. State, 896 S.W.2d 363, 366 (Tex. App.—Houston [1st Dist.] 1995, no writ).

2013See 159 S.W.3d at 198-99 .

2011See Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (per curiam) (citing Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988); In re Marriage of Runberg, 159 S.W.3d 194, 200 (Tex. App.—Amarillo 2005, no pet.); In re Marriage of Parker, 20 S.W.3d 812 , 817–18 (Tex. App.—Texarkana 2000, no pet.)) (other citations omitted); see also Norimex, 2010 Tex. App. LEXIS 3396 , at *6–7.

2011See Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (per curiam) (citing Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988); In re Marriage of Runberg, 159 S.W.3d 194, 200 (Tex. App.—Amarillo 2005, no pet.); In re Marriage of Parker, 20 S.W.3d 812 , 817–18 (Tex. App.—Texarkana 2000, no pet.)) (other citations omitted); see also Norimex, 2010 Tex. App. LEXIS 3396 , at *6–7.

2005He cites Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) and In re Marriage of Parker, 20 S.W.3d 812 (Tex.App.–Texarkana 2000, no pet.) as support for his alternative position. 2 See Platt v. Platt, 991 S.W.2d 481, 483-84 (Tex.App.–Tyler 1999, no pet.), for discussion of a similar procedural situation. 3 Doak’s issue contains a statement to the effect that because he did not receive notice of the default judgment hearing, the trial court did not have jurisdiction over him.

2024See Murphree, 937 S.W.2d at 495 ; see also Barbosa v. Hollis Rutledge & Assocs., Inc., No. 13-05-485-CV, 2007 WL 1845583 , at *2 (Tex. App.—Corpus Christi–Edinburg June 28, 2007, no pet.) (mem. op.) (“[I]t is a denial of due process and an abuse of discretion to convert a pretrial conference into a default judgment hearing without notice to the defendant of that possibility.”); see generally In re Curnutt, No. SCR 23-0002, 2024 WL 1224229 , at *11 (Tex. Spec.

2019Murphree, 937 S.W.2d at 495 ; Masterson v. Cox, 886 S.W.2d 436, 439 (Tex. App.— Houston [1st Dist.] 1994, no writ) (“We know of no authority by which the trial 6 court may turn a pretrial conference into a disposition hearing in the absence of a defendant who has answered, without having provided the absent defendant with notice of that possibility.”); see also Barbosa v. Hollis Rutledge & Assocs.

2024See Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam); see also In re C.A.C., No. 13-10-00332-CV, 2011 WL 3631958 , at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 18, 2011, no pet.) (mem. op.) (“In a post-answer default judgment, where the defaulting party has established the first element—i.e., absence of intent or conscious indifference in failing to appear at trial—by proof that it was not given notice of the default judgment hearing, it need not prove the second and third Craddock elements—i.e., a meritorious defense and absence of delay or undue prejudice

2023Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam); Rodriguez, 564 S.W.3d at 221 ; see In re $475,001.16, 96 S.W.3d at 627 (“A post-answer default judgment is valid only if the defendant has received notice of the default judgment hearing.”).

2023Cont’l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 188 (Tex. App.—Dallas 2000, pet. denied) (“after a defendant is served with the citation and petition, the plaintiff has no legal duty to notify the defendant before taking a default judgment on the causes of action asserted in the served petition.”); Long v. McDermott, 813 S.W.2d 622, 624 (Tex. App.—Houston [1st Dist.] 1991, no writ) (holding that if a defendant does not make an appearance or file an answer, the plaintiff is not required to give the defendant notice of the hearing before the court renders the default judgment).

1997See Long v. McDermott, 813 S.W.2d 622, 624 (Tex.App.—Houston [1st Dist] 1991, no writ) (after citation and petition are served on a defendant who does not answer, there is no duty to give notice of the default judgment hearing).

2024Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (citing Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984)).

2008We further note authorities allowing a case to be reversed and remanded for legally insufficient evidence when "the facts have not been fully developed," such as in a post-answer default judgment, and remand would be appropriate "in the interests of justice."8 the evidence was sufficient to meet the requirements of Section 85. 8 See, e.g., Heine, 835 S.W.2d at 86 (remand for new trial on issue of unliquidated damages); Carter, 473 S.W.2d at 3 (holding court of appeals was authorized to remand in the interest of justice and refusing writ of error); Davis v. McCully, No. 02-05-00072-CV, 2006 Tex

2005FOOTNOTES 1: Further reference to a rule of civil procedure will be by reference to “TRCP_.” 2: 2 See Platt v. Platt , 991 S.W.2d 481, 483-84 (Tex.App.–Tyler 1999, no pet.), for discussion of a similar procedural situation. 3: 3 Doak’s issue contains a statement to the effect that because he did not receive notice of the default judgment hearing, the trial court did not have jurisdiction over him.

2005NOTES [1] Further reference to a rule of civil procedure will be by reference to "TRCP — ." [2] See Platt v. Platt, 991 S.W.2d 481, 483-84 (Tex.App.-Tyler 1999, no pet.), for discussion of a similar procedural situation. [3] Doak's issue contains a statement to the effect that because he did not receive notice of the default judgment hearing, the trial court did not have jurisdiction over him.

2004“Equity aids the diligent and not those who slumber on their rights.” Callahan v. Giles, 137 Tex. 571 , 155 S.W.2d 793, 795 (1941).

2004“Equity aids the diligent and not those who slumber on their rights.” Callahan v. Giles, 137 Tex. 571 , 155 S.W.2d 793, 795 (1941).

2025See Schoendienst v. Haug, 399 S.W.3d 313, 316 (Tex. App.—Austin 2013, no pet.) (“[A] plaintiff may take the default judgment without further notice if the defendant has not filed a written answer or otherwise ‘appeared’ in the action.” (quoting Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied))).

2014Id.

2024“The fact that the testimony was adduced in a default judgment hearing does not relieve appellee of her burden to prove the reasonableness and necessity of her medical expenses.” Jackson, 77 S.W.3d at 903 .

2016Proof of amounts charged or paid for past medical expenses is not proof of the reasonableness of those expenses.”); Jackson v. Gutierrez, 77 S.W.3d 898, 903 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“The fact that the testimony was adduced in a default judgment hearing does not relieve appellee of her burden to prove the reasonableness and necessity of her medical expenses.”); see also TEX.

2024Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (citing Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984)).

2015The judgment does not indicate whether that testimony came in the form of live testimony at the default judgment hearing or from Vance’s 10 Fitch v. Wilkins Props., 635 S.W.2d 661, 664 (Tex. App.—Fort Worth 1982, no writ); see also Morgan, 675 S.W.2d at 732 (“[A] defaulting defendant does not admit that the event sued upon caused any of plaintiff’s alleged injuries.”). 11 Tex. R.

2015Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex. The causal nexus between the App.--Fort Worth 2003, no pet.).

2008Dawson, 107 S.W.3d at 749 .

2021See Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam) (citing Peralta, 485 U.S. at 80 ); see also Ayele v. Jani-King of Hous., Inc., 516 S.W.3d 630, 632 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“If the defaulting party establishes that it did not receive notice of the default judgment hearing, then it need not establish proof of a meritorious defense.”); Felt v. Comerica Bank, 401 S.W.3d 802, 806 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (concluding that when a default judgment is rendered against “a defendant who had no notice of the trial setting, the defendant is not r

2009Id. (citing $429.30 In U.S. Currency v. State , 896 S.W.2d 363, 366 (Tex. App.--Houston [1st Dist.] 1995, no pet.)).

2025See Schoendienst v. Haug, 399 S.W.3d 313, 316 (Tex. App.—Austin 2013, no pet.) (“[A] plaintiff may take the default judgment without further notice if the defendant has not filed a written answer or otherwise ‘appeared’ in the action.” (quoting Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied))).

2023In Schoendienst, the pro se appellant signed an agreed temporary injunction, and after the appellees secured a default judgment against her, she argued in a restricted appeal that signing the agreed order had constituted an appearance such that she should have been notified of the default-judgment hearing. 399 S.W.3d at 315 , 318–19.

2024See Lerma, 288 S.W.3d at 925–26; cf. Elizardi, 2022 WL 551149 , at *2 6 (concluding appellant waived a default judgment challenge on appeal where she filed a request for findings of fact and conclusions of law but did not file a motion for new trial).

2019When 10 see also Dolgencorp of Tex., Inc., 288 S.W.3d at 926 .

2023Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam); Rodriguez, 564 S.W.3d at 221 ; see In re $475,001.16, 96 S.W.3d at 627 (“A post-answer default judgment is valid only if the defendant has received notice of the default judgment hearing.”).

2015The notice served on TMC was defective and thus, the default judgment hearing was void. ......................................................................7 CONCLUSION AND PRAYER ........................................................................................8 CERTIFICATE OF SERVICE .........................................................................................10 CERTIFICATE OF COMPLIANCE .................................................................................11 APPENDICES ............................................................................................

2021See IKB Indus., 938 S.W.2d at 443 . 7 The second question is case-specific and focuses on whether evidence was presented to the trial court, not whether that evidence proved to be necessary in hindsight.

2018IKB Indus., 938 S.W.2d at 443 .

2021However, the trial court must provide 45-days notice of a default judgment hearing, see Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655 , 659–60 (Tex. App.—San Antonio 2002, no pet.), if the default judgment hearing is effectively a trial setting.

2019Compliance with the rule has been called “mandatory.” Custom-Crete, Inc. v. K- Bar Services, Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio 2002, no pet.); Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140 (Tex. App.—Texarkana 1993, writ denied); see Campos v. Nueces County, No. 13-07-488-CV, 2008 WL 331067 , at *2 (Tex. App.—Corpus Christi 2008, no pet.) (mem. op.); see also Fifteen-Thousand One- Hundred Ninety-Six Dollars v. State, No. 03-16-00015-CV, 2016 WL 6833102 , at *3 (Tex. App.—Austin Nov. 17, 2016, no pet.) (mem. op.) (holding twenty-nine days’ notice of the default judg

2021See LBL Oil Co., 777 S.W.2d at 390–91 (reversing judgment in a post-appearance default judgment case where no actual or constructive notice of the dispositive hearing, a default judgment hearing, was shown in the record); Xenos Yuen v. Fisher, 227 S.W.3d 193 , 198–99 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (explaining that appellee’s special appearance constituted an “appearance” sufficient to entitle him to notice of the default judgment 9 hearing); see also Tatum v. Landry, No. 05-92-00518-CV, 1992 WL 186267 *2 (Tex. App.—Dallas 1992, no pet.) (mem. op.).

2021See LBL Oil Co., 777 S.W.2d at 390–91 (reversing judgment in a post-appearance default judgment case where no actual or constructive notice of the dispositive hearing, a default judgment hearing, was shown in the record); Xenos Yuen v. Fisher, 227 S.W.3d 193 , 198–99 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (explaining that appellee’s special appearance constituted an “appearance” sufficient to entitle him to notice of the default judgment 9 hearing); see also Tatum v. Landry, No. 05-92-00518-CV, 1992 WL 186267 *2 (Tex. App.—Dallas 1992, no pet.) (mem. op.).