Ashworth v. Brzoska

Decision Date04 November 2008
Docket NumberNo. 14-07-00239-CV.,14-07-00239-CV.
Citation274 S.W.3d 324
PartiesDouglas ASHWORTH, Appellant v. Richard BRZOSKA, Appellee.
CourtTexas Court of Appeals

Douglas Ashworth, Humble, TX, pro se.

Douglas Ogle, Houston, R. Gary Stephens, Richmond, Skyler Wynne Stephens, Austin, TX, for appellees.

Panel consists of Justices YATES, GUZMAN, and BROWN.

OPINION

JEFF BROWN, Justice.

A post-answer default judgment was entered against appellant, Douglas Ashworth, who failed to appear for trial because he did not receive notice of the trial setting. The trial court declined to grant a new trial, ruling that Ashworth's nonappearance resulted from his failure to provide a correct, updated mailing address. We hold that the trial court abused its discretion by refusing to grant a new trial. Therefore, we reverse the trial court's judgment and remand this cause for a new trial.

BACKGROUND

In May 2003, appellee, Richard Brzoska, sued Ashworth, along with Sterling Redfern Corporation and Loch Energy, Inc., alleging, inter alia, breach of an employment contract, fraud, and deceptive trade practices. The defendants, who were represented by the same attorney, filed a general denial. In November 2003, the defense attorney moved to withdraw, listing Ashworth's last known address as 7544 F.M.1960 East, #16, Houston, Texas 77346. After the trial court granted his attorney's withdrawal motion, Ashworth opted to proceed pro se.

Ashworth's listed address consisted of a mailbox located inside a retail postal center called "Speedy Mail & Parcel." In December 2003, Ashworth failed to pay rent for mailbox # 16. Speedy closed the mailbox, which caused all mail addressed to appellant at that mailbox to be returned to the post office. Ashworth then arranged to rent mailbox # 17 from Speedy. However, he did not formally notify the trial court, district clerk, or opposing counsel1 that his address had changed to 7544 F.M.1960 East, #17, Houston, Texas 77346.

The court issued several trial settings, but the case was not reached for trial until November 28, 2006. The defendants failed to appear for trial, prompting the following exchange:

THE COURT: All right. And do we have either Mr. Ashworth, Sterling Redfern, or Loch — "Loch"/"Loch" Energy Corporation?

MR. STEPHENS: Do not, Your Honor. We've been attempting to try to locate them. They've moved from their last address, and we know of no new address that we can reach them at.

Following a brief bench trial, the court entered a post-answer default judgment against the defendants. The final judgment was signed on January 5, 2007. Ashworth, who received the proposed judgment via certified mail addressed to mailbox # 16,2 moved to vacate the judgment because he did not receive notice of the trial setting.

The trial court's file contains a notice of trial setting, dated April 27, 2006, which lists appellant's address as "7544 F M 1960 EAST 16." Ashworth denied receiving this notice, but the trial court declined to grant a new trial, concluding that appellant had voluntarily changed his address without informing the court clerk. Ashworth, but not Sterling Redfern or Loch Energy, has perfected an appeal from the trial court's ruling.3 He contends that because he did not receive notice of the trial setting, the trial court abused its discretion by refusing to grant a new trial.

STANDARD OF REVIEW

Because we construe appellant's "Emergency Motion to Vacate Final Judgment" as a motion for new trial, we will apply the standard of review corresponding to the review of a motion for new trial. See In re Estate of Head, 165 S.W.3d 897, 902 (Tex.App.-Texarkana 2005, no pet.); IPM Prods. Corp. v. Motor Parkway Realty Corp., 960 S.W.2d 879, 882 (Tex.App.-El Paso 1997, no pet.). We review the denial of a motion for new trial under an abuse-of-discretion standard. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). An abuse of discretion occurs if the trial court acts without reference to any guiding rules or principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).

A trial court must set aside a post-answer default judgment when the defendant satisfies the test articulated by Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994); Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987). Under Craddock, the defendant must demonstrate that (1) his 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. Cliff, 724 S.W.2d at 779.

The law presumes that a trial court will hear a case only after giving proper notice to the parties. Tex. Dep't of Pub. Safety v. Mendoza, 956 S.W.2d 808, 812-13 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Importantly, then, if the defendant did not receive notice of a trial setting, he satisfies the first prong of Craddock and need not prove the existence of a meritorious defense to be entitled to a new trial.4 Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988). The law prefers that cases be resolved on their merits wherever possible, rather than by default. See Reed v. City of Dallas, 774 S.W.2d 384, 386 (Tex.App.-Dallas 1989, writ denied) (Howell, J., dissenting). Accordingly, a trial court abuses its discretion in denying a new trial to a defendant who satisfies the Craddock test. See Evans, 889 S.W.2d at 268; Cliff, 724 S.W.2d at 779.

ANALYSIS
A. Notice of Trial Setting

At the new-trial hearing, Ashworth denied receiving notice of the November 2006 trial setting.5 Unless Brzoska presented evidence to controvert appellant's no-notice claim, a new trial was required. See Cliff, 724 S.W.2d at 779; Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex.1994). He attempts to meet this burden by arguing that (1) Ashworth admitted receiving notice of the trial setting, and (2) under Rule 21a, appellant is presumed to have received notice. We disagree with these contentions.

1. Admission of Receipt:

At the conclusion of the new-trial hearing, after the court had already ruled, Ashworth stated, "You don't mail out a three-by-five card a year ago, and then the clerk says he tried to call me, but he talks to Mr. Stephens, and Mr. Stephens knows how to get ahold of me[.]" Brzoska urges us to construe this statement "as a direct admission that [Ashworth] did, in fact, receive at least one of the Notices of Trial from the court." We decline to do so.

We interpret Brzoska's argument as an allegation that Ashworth stipulated to receiving notice of the trial setting. A stipulation includes an admission or concession made in a judicial proceeding by a party or its attorney. Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 821 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). However, courts should disregard "stipulations" that are unclear or ambiguous. See Goebel v. Brandley, 174 S.W.3d 359, 364 n. 7 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).

Ashworth's statement, which was addressed to the trial court, reasonably may be interpreted as a complaint that the court's trial-setting notice was not mailed: "You don't mail out a three-by-five card a year ago[.]" Moreover, were we somehow to construe this statement as an admission that appellant received a trial-setting notice mailed "a year ago," it still does not demonstrate his awareness of the November 2006 trial setting. The record reflects that the court issued at least five trial settings, several of which could be said to have issued "a year ago." For example, in December 2005, slightly more than one year before appellant's February 2007 statement, the court issued a trial setting for March 2006. Receipt of this December 2005 notice, which was issued approximately "a year ago," would not have notified Ashworth that trial was later re-scheduled to November 27, 2006. Because Ashworth's statement does not unambiguously demonstrate his awareness of the November 2006 trial setting, we disregard the purported stipulation. See id.

2. Presumption of Notice under Rule 21a:

Under Texas Rule of Civil Procedure 21a, all notices other than citation— including notification of trial settings— may be served by delivering a copy to the party (1) in person, (2) by agent, (3) by courier receipted delivery, or (4) by certified or registered mail, properly addressed with prepaid postage, to the party's last known address. See Tex.R. Civ. P. 21a; Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). If notice of a trial setting is delivered by one of these four authorized methods, Rule 21a creates a presumption that the notice was received by the addressee. See Tex.R. Civ. P. 21a; Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005).

However, because the record contains no evidence that notice was mailed to Ashworth, the presumption did not arise. See id. ("[W]e cannot presume that notice was properly sent; when that is challenged, it must be proved according to [Rule 21a]."). That a notice was mailed may be demonstrated, for example, by producing a signed certified-mail receipt6 or a mailed-but-returned-unclaimed parcel. See, e.g., Withrow v. Schou, 13 S.W.3d 37, 39 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). The facts of a particular case may not provide for proof by one of those methods. In this case, however, Brzoska could have—but did not—obtained testimony from the trial court clerk or district clerk, or some other witness with knowledge, to prove that the notice was mailed or to speak to the procedures for mailing trial notices. See, e.g., Sellers v. Foster, 199 S.W.3d 385, 395 (Tex.App.-Fort Worth 2006, no pet.); Cont'l Cas. Co. v. Davilla, 139 S.W.3d 374, 380 (Tex.App.-Fort Worth 2004, pet. denied).

Having failed to present evidence that the trial-setting notice was mailed, Brzoska now observes that (1) copies of...

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