Opinion
02-23-00018-CV
09-07-2023
Christopher Rozanc, Appellant v. Robin Nance, Appellee
On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352-329512-21
Before Sudderth, C.J.; Womack and Walker, JJ.
MEMORANDUM OPINION
Dana Womack Justice
I. Introduction
Appellant Christopher Rozanc's retained attorney attempted-twice-to file an answer and general denial to Appellee Robin Nance's lawsuit. After the answer was twice rejected and never filed by the trial court clerk, Rozanc's attorney did nothing else-including informing Rozanc that no answer had been filed. Following a default judgment against Rozanc, and after the deadline to file a motion for new trial had passed, Rozanc attempted to show that he, personally, had never received notice of the judgment and that he should be allowed to file a new trial motion outside of the standard deadlines. The trial court heard testimony and granted the motion. On reconsideration, however, the trial court denied Rozanc's new trial motion, apparently because Rozanc failed to show when or if his retained attorney had received notice of the default judgment. Because Rozanc's attorney was not an "attorney of record," we hold that Rozanc merely had to show that Rozanc himself did not receive notice. We further hold that Rozanc established that he was entitled to a new trial. Therefore, we will reverse and remand for a new trial.
II. Background
Nance filed a personal injury lawsuit on October 5, 2021, against Kimberly Tanner and Rozanc, alleging that Tanner's dog had escaped from Rozanc's residence and attacked Nance and that Rozanc was negligent in allowing the dog at his residence. On December 16, 2021, attorney Stacey Mooring attempted to file an answer on Rozanc's behalf. This answer was rejected and returned unfiled by the trial court clerk because it allegedly contained a style with a different defendant's name than that in the original petition.
Tanner is not a party to this appeal.
Both the fact that Mooring attempted to file an answer and the fact that the trial court rejected the answer are known only because the unfiled answer is attached as an exhibit to Nance's motion to reinstate, and the clerk's rejection notice is attached as an exhibit to Nance's response to Rozanc's new trial motion. Because the clerk rejected the attempted filing, Rozanc's answer never independently appeared in the appellate record.
According to Nance's verified motion to reinstate, Nance's attorney tried to get the court to enter a scheduling order in January 2022. At that time, he was told that Rozanc did not have an attorney of record and that his attempted answer to the lawsuit had been rejected. Nance's attorney then contacted Mooring's office, discussed what had happened, and sent the office the correct style for the case. Mooring submitted another answer, but that was also rejected by the clerk, this time for being "Illegible/Unreadable." Nance's attorney again called Mooring's office and again sent Mooring's office the correct case style. Mooring apparently did not attempt to file anything else in this case.
Again, the communications between the attorneys are referenced in Nance's response to Rozanc's motion for new trial.
Meanwhile, the trial court issued an "Order To Show Why Case Should Not Be Dismissed" on February 9, 2022. The order stated that the case would be dismissed for want of prosecution unless (1) Nance showed that Rozanc had been served and either he had filed an answer or there had been a default judgment against him or (2) Nance filed a verified motion to retain the case on the docket. Nance filed a motion for default judgment on March 9, 2022. The motion for default judgment stated, "Rozanc has failed to make an appearance before the court." Nance's attorney also filed a "Certificate of Last-Known Address," which contained Rozanc's address but made no reference to Mooring. See Tex.R.Civ.P. 239a. The trial court signed a dismissal order on March 18. Nance responded with a verified motion to reinstate the case on March 22. The trial court reinstated the case on April 29 and signed a default judgment against both defendants on May 11, 2022. The trial court's judgment states that Rozanc "failed to appear after being duly served."
Over three months later, on August 22, 2022, Rozanc filed a motion for new trial. Supporting this motion was an affidavit by Rozanc in which he stated that he had retained Mooring to represent him in this case; that despite his staying in contact with Mooring's office, Rozanc was not told of events in the case (including the dismissal, reinstatement, and default judgment); and that he only learned of the default judgment when law enforcement officers seized his boat to satisfy the judgment.
A hearing was held on Rozanc's motion in front of a visiting judge. Rozanc (now represented by new counsel) testified that, on July 24, 2022, he received a certified letter from Nance's attorney containing a copy of the default judgment. He testified that this was his first notice that a final default judgment had been entered against him. He was not notified of any court date before then, and he further testified that he was represented by counsel (Mooring) when the default judgment was taken. Rozanc texted photographs of the judgment to Mooring's office along with a message asking, "Is this for real?" Rozanc later went to Mooring's office and was told that they would "go ahead and take care of whatever they needed to take care of legally." On August 16, officers from the constable's office seized Rozanc's boat from his driveway. Rozanc testified that he uses that boat for his work and that, therefore, it is exempt property. See Tex. Prop. Code Ann. § 42.002 (a)(4) (exempting "boats and motor vehicles used in a trade or profession" from execution).
Rozanc also testified that he did not own the dog that bit Nance, nor did he own the residence where the dog was located. Therefore, according to Rozanc, he had a meritorious defense to the suit. Finally, Rozanc reiterated that he had never received any notice from anyone that the case was on the dismissal docket, that a default judgment hearing had been scheduled, or that a judgment had been entered against him.
The visiting judge ended the hearing without making an immediate decision. Later, the judge granted Rozanc's motion for new trial. Rozanc then filed an original answer.
Nance filed a motion for reconsideration of the new trial decision. The sitting trial judge heard the motion. This hearing consisted of argument only and ended with the trial court questioning whether Rozanc's affidavit justifying his out-of-time motion for new trial was sufficient. The trial court expressed concern that only Rozanc-not Mooring-executed an affidavit supporting the motion for new trial, asking, "What evidence is there now or was there then from the attorney that he didn't receive notice?" The trial court ended the hearing and later granted Nance's motion to reconsider, denying Rozanc's motion for new trial.
III. Discussion
Rozanc raises three issues: (1) whether the trial court abused its discretion by denying his motion for new trial, (2) whether the trial court abused its discretion by not accepting for filing the answers tendered by Mooring, and (3) whether the trial court should have granted Rozanc's motion for new trial.
We sustain Rozanc's first and third issues. Given our disposition of these issues, we do not reach Rozanc's second issue. See Tex.R.App.P. 47.1.
While we do not reach the second issue, we note that the trial court clerk should have filed the answer purportedly tendered by Mooring in December 2021. See Tex.R.Civ.P. 21(f)(11) ("The clerk may not refuse to file a document that fails to conform with this rule."); see also Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) ("In a long line of cases, this court has held that a document is 'filed' when it is tendered to the clerk, or otherwise put under the custody or control of the clerk."). Moreover, there is nothing in the answer Mooring attempted to file that could be considered "non-conforming." See Tex.R.Civ.P. 21(f)(11). Even if the clerk "identif[ies] an error to be corrected," the clerk must "state a deadline for the party to resubmit the document in a conforming format." Id. No such deadline was provided to Rozanc or Mooring in the clerk's rejection notices. See In re Barr, No. 05-19-00511-CV, 2019 WL 2082468, at *2 (Tex. App.-Dallas May 13, 2019, orig. proceeding) (mem. op.) (holding that to "allow a court clerk's decision to reject a filing, without more, to cause a party to lose its right to seek post-judgment and appellate relief. . . is not the law in Texas"); see also Tech. Standards, Jud. Comm. on Info. Tech., 4.8.4 (Nov. 2021) (listing the only reasons that a clerk may send a nonconforming document to the filer for correction-not outright rejection); Supreme Court of Tex., Order Adopting the Recommendations of the Judicial Committee on Information Technology for Access to Electronically Filed Court Documents by Judges, Clerks, and Attorneys Through re: SearchTX, Misc. Docket No. 17-9025 (Feb. 21, 2017).
A. Timeliness of motion for new trial
A motion for new trial must be filed within thirty days after the complained-of judgment is signed. Tex.R.Civ.P. 329b(a). If a motion for new trial is not timely filed, a trial court's plenary power to grant a new trial expires. Tex.R.Civ.P. 329b(d); see Tex.R.Civ.P. 306(a)(1) (providing that date judgment is signed is used to determine plenary power). Judicial action taken after the trial court's plenary jurisdiction over a cause has expired is a nullity. State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
An exception to the thirty-day filing rule applies when a party did not receive timely notice of the final judgment. Rule of Civil Procedure 306a(4) provides,
If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by [Rule 306a(3)] of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) [including the date for filing a motion for new trial] shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods
begin more than ninety days after the original judgment or other appealable order was signed.Tex. R. Civ. P. 306a(4); see Tex.R.App.P. 4.2(a)(1). To establish the date of receipt or actual knowledge of the final judgment, Rule 306a(5) first requires the filing of a sworn motion establishing the date the party or his counsel first learned of the judgment. Tex.R.Civ.P. 306a(5); In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding) ("[I]f the party . . . (1) complies with the sworn motion, notice[,] and hearing requirements mandated by Rule 306a(5), and (2) proves it received notice of the judgment more than twenty (but less than ninety-one) days after it was signed," then "[p]ost-judgment procedural timetables-including the period of the trial court's plenary power-run from the day [the] party receives notice of [the] judgment, rather than the day judgment is signed."); see In re J.S., 392 S.W.3d 334, 338 (Tex. App.-El Paso 2013, no pet.) (stating that "notice and actual knowledge must be negated by both the party and the party's counsel in order to make a prima facie showing of lack of timely notice"). A sworn Rule 306a(5) motion establishes a prima facie case that the party lacked timely notice and invokes the trial court's jurisdiction "for the limited purpose of holding an evidentiary hearing to determine the date on which the party or its counsel first received notice or acquired knowledge of the judgment." Id.
Rozanc argues that he adequately demonstrated that he did not receive notice of the default judgment and did not have actual knowledge of it within twenty days of its signing. Nance argues, conversely, that showing when Rozanc received notice is not enough-Rozanc must also show the trial court when his attorney received notice of the default judgment.
The deadlines and requirements contained in Rule 306a are predicated on the trial court clerk properly notifying the parties and counsel that a judgment has been entered: "When the final judgment or other appealable order is signed, the clerk of the court must immediately give notice to the parties or their attorneys of record electronically or by first-class mail advising that the judgment or order was signed." Tex.R.Civ.P. 306a(3); see Winkins v. Frank Winther Invs., Inc., 881 S.W.2d 557, 558 (Tex. App.-Houston [1st Dist.] 1994, no writ) (explaining that the purpose of Rule 306a(3) is to inform parties and their attorneys that a judgment has been signed and when it was signed so that they will know the starting date of the appellate timetables).
Moreover, Rule 306a(3) requires that the clerk notify parties or their attorneys of record. See In re Est. of Moore, 553 S.W.3d 533, 536 (Tex. App.-El Paso 2018, no pet.) (holding appellant was not properly served where certificate of service reflected service to attorney who did not appear as attorney of record). It follows logically that, if the court clerk is required to send notice to an attorney of record, a party's obligation to demonstrate that his attorney received late notice (or no notice) must refer to the attorney of record. Cf. In re V.A.M., No. 05-21-00866-CV, 2023 WL 3451056, at *3 n.4 (Tex. App.-Dallas May 15, 2023, no pet.) (mem. op.) (imputing attorney's knowledge of signed decree to party based on attorney's role as "attorney of record" at time decree was signed). Therefore, if the issue in this case turns on whether Rozanc must show when Mooring was notified, we must decide if Mooring was an attorney of record when the default judgment was entered.
A party may appear in a trial court action through an attorney-and may do so either in person or through a filed answer, pleading, or motion. Tex.R.Civ.P. 7, 120, 121. "An attorney becomes an 'attorney of record' of a party by filing pleadings or appearing in open court on a party's behalf." Ordonez v. Solorio, 480 S.W.3d 56, 62 (Tex. App.-El Paso 2015, no pet.). Mooring-though he attempted twice-did not file any pleadings. Merely attempting to file a pleading is not "appearing in open court." Accordingly, despite the fact that Rozanc had retained Mooring as his attorney (and did so for the purpose of defending himself in this lawsuit), Mooring was not an "attorney of record" in this case. See Smith v. Smith, 241 S.W.3d 904, 907 (Tex. App.-Beaumont 2007, no pet.) (holding that because there was "no indication in the clerk's record that the attorney filed an answer or appeared in open court on [the defendant's] behalf," service of a second amended petition on that attorney was insufficient to amount to service on the defendant).
Black's Law Dictionary defines "appearance" as "[a] coming into court as a party or interested person, or as a lawyer on behalf of a party or interested person; esp., a defendant's act of taking part in a lawsuit, whether by formally participating in it or by an answer, demurrer, or motion, or by taking postjudgment steps in the lawsuit in either the trial court or an appellate court." Appearance, Black's Law Dictionary (11th ed. 2019).
A similar fact pattern emerged in Moreno v. Moreno, No. 04-17-00586-CV, 2018 WL 3440713 (Tex. App.-San Antonio July 18, 2018, no pet.) (mem. op.). In that case, after an agreed divorce, the wife filed a motion for clarification and enforcement of the divorce decree and served that motion directly on her husband; he filed a pro se answer. Id. at *1. The wife then filed two more motions to set the case for a hearing on the non-jury docket, but these were served on the husband's "attorney of record." Id. The trial court held a default hearing, ordered that the husband pay nearly $12,000 in attorney's fees, and entered a domestic relations order regarding the husband's military retirement pay. Id. The husband, after learning of the order several months later, filed a notice of restricted appeal. Id.
The San Antonio Court held that the husband was not properly notified of the default hearing as required by the civil trial rules. Id. at *2. Specifically, service on a named "attorney of record" was useless because there was no such attorney: "[T]he clerk's record does not contain any pleadings filed by an attorney on [the husband's] behalf in response to [the wife's] 2016 motion, and the trial court's order states [the husband] did not appear and wholly made default." Id. Consequently, entry of a default judgment against the husband constituted a violation of due process. Id.
Rozanc is in a similar position-because Mooring had filed no pleadings, Rozanc was unrepresented by counsel when he should have been notified of the default judgment. And as a pro se litigant, Rozanc was not obligated to submit an affidavit from Mooring explaining when he received notice of the judgment or acquired actual knowledge of that judgment under Rule 306a(5). See In re Gravitt, 371 S.W.3d 465, 473 (Tex. App.-Houston [14th Dist.] 2012, orig. proceeding [mand. denied]) (holding that, after attorneys were removed by trial court, notice to those attorneys could not be imputed to litigant they formerly represented); see also Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (holding notice to former attorney was no longer notice to party after attorney withdrew).
Here, before the expiration of ninety days following the default judgment, Rozanc demonstrated that he personally did not receive notice of the default judgment or acquire knowledge of it until after the deadline to file a motion for new trial. See Tex.R.Civ.P. 306a(4). Further, because Mooring was not his attorney of record, Rozanc was not obligated to show when Mooring received notice. Therefore, under Rule 306a(4), Rozanc's motion for new trial was timely.
B. Setting aside a default judgment and granting a motion for new trial
Rozanc argues further that the trial court should have granted his motion for new trial. We agree.
A defaulting party is entitled to a new trial when (1) the failure to appear was not intentional or the result of conscious indifference but was the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no delay or otherwise injure the plaintiff. B. Gregg Price, P.C. v. Series 1 - Virage Master LP, 661 S.W.3d 419, 423 (Tex. 2023) (citing Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124, 126 (Tex. [Comm'n Op.] 1939)). The defaulting party has the burden of proving that all three elements of the Craddock test are met before a trial court is required to grant a motion for new trial. See Freeman v. Pevehouse, 79 S.W.3d 637, 641 (Tex. App.-Waco 2002, no pet.). We review a trial court's refusal to grant a motion for new trial for abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987).
1. Was Rozanc's failure to answer the result of intentional or consciously indifferent conduct?
A defendant satisfies his burden under the first Craddock element when his factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff. Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012). The excuse offered by the defaulting party, however, need not necessarily be a good excuse. Sharpe v. Kilcoyne, 962 S.W.2d 697, 701 (Tex. App.-Fort Worth 1998, no pet.).
Here, Rozanc retained Mooring and, though he may not have been an "attorney of record" in this suit, Mooring was Rozanc's agent-at least in the early stage of this litigation. See generally Est. of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993) (op. on reh'g) (holding that when a defendant relies on an agent or representative to file an answer to a suit, the defendant must establish that the failure to file an answer was not the result of the party's or the agent's conscious indifference). But if an attorney misleads his client (or behaves unprofessionally) and the client is "free of responsibility and knowledge," the client satisfies the first prong of Craddock. Lowe v. Lowe, 971 S.W.2d 720, 724 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).
Relying on this formulation in Lowe, the Corpus Christi Court of Appeals held for a defaulting defendant in Rozanc's position. See Hahn v. Whiting Petroleum Corp., 171 S.W.3d 307, 310 (Tex. App.-Corpus Christi 2005, no pet.). Hahn alleged in his motion for new trial that he had sent the plaintiff's pleadings to the attorney who normally represented him, that the attorney failed to file an answer, that the attorney had a conflict, and that the attorney never told Hahn that he would not represent him. Id. at 310. The court noted that, under the disciplinary rules, the attorney had a professional obligation to tell Hahn that he no longer represented him. Id. (citing Tex. Disciplinary Rules Prof'l Conduct R. 1.05, 1.06(a), (e), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9)). Faced with a situation in which Hahn's agent was effectively absent, the court assessed Hahn's actions and concluded that he "satisfied the first prong of the Craddock test by negating the possibility of intentional or consciously indifferent conduct" regarding the failure to answer. Id. at 311.
Similarly, Rozanc was effectively pro se-though he did not realize it until it was too late. According to Rozanc, he retained Mooring in November 2021 to represent him in the lawsuit filed by Nance. Rozanc "frequently contacted Mr. Mooring's office to request a status update on the case and was assured the case was being handled." Cf. Mem'l Hosp. Sys. v. Fisher Ins. Agency, Inc., 835 S.W.2d 645, 652 (Tex. App.-Houston [14th Dist.] 1992, no writ) ("It is reasonable to assume that when a prudent person is served with a petition concerning a lawsuit and is relying on his agent to represent his interest, he is going to make sure that his agent is using due diligence in handling the lawsuit."), disapproved of on other grounds by Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005). Mooring attempted to file an answer to the lawsuit but was twice rebuffed by the district clerk. There were no more attempts to file an answer. Importantly, Mooring never communicated to Rozanc that an answer had not been filed and would not be filed. Under these facts, we conclude that Rozanc's actions in failing to answer the lawsuit were neither intentional nor demonstrated a conscious indifference.
2. Did Rozanc have a meritorious defense?
The second prong of Craddock requires the defaulting party to set up a meritorious defense. As the supreme court later described this requirement,
The second prong of the Craddock test requires [a new trial movant] to "set up" a meritorious defense in its motion for new trial. [Craddock,] 133 S.W.2d at 126. Setting up a meritorious defense does not require proof "in the accepted sense." Ivy [v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)]. Rather, the motion sets up a meritorious defense if it alleges facts which in law would constitute a defense to the plaintiff's cause of action and is supported by affidavits or other evidence providing prima facie proof that the defendant has such a defense. Id. (testimony given at the motion for new trial hearing used to determine whether defendant provided prima facie evidence of a meritorious defense); see Guar. Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 2006).Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 927-28 (Tex. 2009) (footnote omitted). "A meritorious defense is one that, if true, would cause a different result on retrial, though it need not be a totally opposite result." Take 5 LLC v. Smith, No. 05-22-00390-CV, 2023 WL 1229028, at *5 (Tex. App.-Dallas Jan. 31, 2023, no pet.) (mem. op.) (citing L'Arte De La Mode, Inc. v. Neiman Marcus Grp., 395 S.W.3d 291, 296 (Tex. App.-Dallas 2013, no pet.)).
Rozanc alleged in his affidavit in support of his new trial motion and testified at the hearing that he neither owned the dog that allegedly bit Nance nor did he own the residence from which the dog escaped when it attacked Nance. These facts, if true, would appear to undercut any theory of Rozanc's liability for the dog bite. Cf. Hahn, 171 S.W.3d at 311 (holding that where plaintiffs' petition alleged breach of fiduciary duty and constructive fraud, defaulting party set up meritorious defense where he alleged that he did not have contractual relationship with plaintiffs or an agreement with co-defendants to defraud the plaintiffs). We conclude that Rozanc has shown that he had a meritorious defense that, if true, would result in a different outcome in a retrial.
Nance's original petition alleged that co-defendant Tanner's dog apparently emerged from Rozanc's residence and that Rozanc knew or should have known "that allowing. . . Tanner's dog on his property posed an unreasonable danger to any individual who was near it."
3. Would a new trial cause delay or injure Nance?
The third prong of the Craddock test is that the defendant file the motion for new trial when granting it "will occasion no delay or otherwise work an injury to the plaintiff." Craddock, 133 S.W.2d at 126. This prong's purpose is "to protect a plaintiff against the sort of undue delay or injury that would result in a disadvantage when presenting the merits of the case at a new trial, 'such as a loss of witnesses or other valuable evidence.'" Dolgencorp, 288 S.W.3d at 929 (quoting Dir., State Emps. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994)). Once a defendant has alleged that granting a new trial will not injure the plaintiff, the burden of proving injury shifts to the plaintiff. L'Arte De La Mode, Inc., 395 S.W.3d at 297.
Here, Rozanc has alleged that granting a new trial will not cause delay or injure Nance. Nance did not produce any rebuttal evidence, either in his response to Rozanc's motion or at the hearing, to show that he would be harmed by the granting of the new trial motion. See Hahn, 171 S.W.3d at 312 (holding that plaintiff produced nothing to rebut defaulting party's assertion that it would not be harmed by the grant of a new trial). Accordingly, we conclude that Rozanc met the third prong of the Craddock test.
IV. Conclusion
Rozanc did not have an "attorney of record" because Mooring failed to file an answer on Rozanc's behalf. Therefore, Rozanc did not need to demonstrate his attorney's awareness of the resulting default judgment in order to file an out-of-time motion for new trial. In addition, Rozanc's failure to file an answer was neither intentional nor the result of consciously indifferent conduct, he had a meritorious defense to Nance's claims, and there is no evidence a new trial would cause delay or injure Nance. We reverse the trial court's order and remand for a new trial on Nance's claims against Rozanc.
See Tex. Dep't of Aging & Disability Servs. v. Mersch, 418 S.W.3d 736, 742 (Tex. App.-Houston [1st Dist.] 2013, no pet.) (emphasizing the supreme court's "overarching policy. . . that cases should be decided on the merits rather than on a procedural default" and cautioning that the "electronic filing and service rules should not become a trap for the unwary when no harm is done").