Opinion
No. 01-03-00845-CV
Opinion issued March 3, 2005.
On Appeal from County Civil Court at Law No. 1, Harris County, Texas, Trial Court Cause No. 784284.
Kelvin Ray Gatlin, Houston, TX, for appellant.
Loren R. Smith, Kelly Smith, P.C., Houston, TX, for appellee.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellant, Kelvin Ray Gatlin, appeals the trial court's rendering a post-answer default judgment in favor of Appellee, National Fire Insurance Company (National Fire), Subrogee of Rainbow Play System. In two issues, Gatlin contends that the trial court erred by rendering the post-answer default judgment in favor of National Fire in the amount of $42,293.63 because (1) Gatlin did not receive a jury trial despite making a proper jury demand and (2) Gatlin's failure to appear for trial should be excused because he did not receive timely "Notice of Oral Hearing."
We affirm.
Procedural History
National Fire, the insurance carrier for Rainbow Play Systems, filed a subrogation lawsuit against Gatlin to recover insurance benefits paid as a result of a motor vehicle accident. On February 13, 2003, the case was set for trial to occur on July 28, 2003. On July 28, 2003, the case was called for trial, but Gatlin did not appear. After National Fire presented evidence in support of its claims, the trial court entered final judgment for National Fire.
Timely Notice of Oral Hearing
In his second issue, Gatlin contends that "the trial court should not have rendered final judgment for failure of defendant to appear." Gatlin contends he was not given sufficient time to "file a response" and obtain a "bench warrant" for his appearance in court for trial because he was not "given a timely notice of oral hearing." Gatlin specifically complains that he received insufficient notice of a pre-trial oral hearing that was set for Tuesday, July 22, 2003. The record reflects that, on July 22, 2003, the trial court entered an order denying a motion to quash. The record does not contain the motion to quash itself or any record of the hearing that occurred on July 22, 2003. Gatlin has not shown any connection between his alleged failure to receive notice of the July 22, 2003 pre-trial hearing and his failure to appear for trial on July 28, 2003, when the trial court entered the default judgment.
A post-answer default judgment is valid only if the defendant has received notice of the default judgment hearing, or notice of the hearing that is dispositive of the case and, therefore, is effectively the trial setting. See LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989); $429.30 In U.S. Currency v. State, 896 S.W.2d 363, 366 (Tex.App.-Houston [1st Dist.] 1995, no writ).
It is clear from the record that (1) the default judgment was rendered at the July 28 hearing, and that (2) the July 22 hearing was not dispositive of the case. Gatlin does not contend that he did not have adequate notice of the July 28, 2003 trial setting for which he did not appear. Because appellant had notice of the trial setting and failed to appear, the trial court acted within its discretion by calling the case to trial and entering a default judgment following consideration of the evidence. See Tex. R. Civ. P. 245 (requiring 45 days' notice for first trial setting); see also Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex. 1994) (holding that, when court grants default judgment, plaintiff must still put on evidence and prove its case); $ 429.30 in U.S. Currency, 896 S.W.2d at 366 (holding that validity of post-answer default judgment depends on whether defendant received notice of default-judgment hearing).
We overrule Gatlin's second issue.
Jury Request
In his first issue, Gatlin contends that the trial court erred by rendering final judgment in favor of National Fire because he did not receive a jury trial despite making a proper jury demand. The record does not show that either party paid a jury fee. Because the record does not reflect that a jury was properly requested, Gatlin cannot show that he was entitled to a jury trial. See Tex. R. Civ. P. 216(b); Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). But, even if Gatlin had properly requested a jury trial, he waived his right to a jury trial by not appearing for trial. See Tex. R. Civ. P. 220; Bradley Motors, Inc., 878 S.W.2d at 141.
We overrule Gatlin's first issue.
Conclusion
We affirm the judgment of the trial court.