Mark J. Healey v. Edwin N. Healey
12-15-00047-CV
| Tex. App. | Dec 30, 2015Background
- Edwin Healey sued Mark J. Healey and his brothers in Nov. 2013; Mark was served Nov. 21, 2013 and did not file a timely answer.
- Edwin moved for default judgment Nov. 11, 2014; nine days later Mark filed a special appearance alleging lack of jurisdiction (he lives in Missouri).
- Mark’s special appearance was unverified (not sworn) and he did not file an answer subject to that appearance or request a hearing on the special appearance.
- The trial court granted default judgment against Mark on Nov. 25, 2014 without a hearing; Mark later filed a motion for new trial and an answer, which the court denied after a hearing.
- The court severed the default judgment as to Mark into a separate final cause; the claims against Mark’s brothers proceeded to jury trial and resulted in final judgment.
Issues
| Issue | Plaintiff's Argument (Edwin) | Defendant's Argument (Mark) | Held |
|---|---|---|---|
| Whether the default judgment violated due process for lack of notice | Default judgment was proper against a nonanswering defendant | Mark argued his special appearance entitled him to notice and thus the default was void | Court held Mark’s defective (unverified) special appearance did not create a general appearance or entitlement to pre-judgment notice; default was proper |
| Whether the trial court abused discretion by denying Mark’s motion for new trial based on lack of notice | Motion to deny new trial; judgment was proper | Mark argued new trial should be granted to cure deprivation of due process (lack of notice) | Court held Mark was not entitled to notice before the default judgment was signed and therefore not entitled to new trial on that basis |
| Whether severing the default judgment into a separate cause was improper | Severance was procedurally permissible to make the judgment final | Mark argued severance was erroneous and prejudicial | Court held issue is moot because subsequent final judgment in main action makes any error unreviewable; severance not remedied and appeal fails |
Key Cases Cited
- LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (appearance entitles defendant to notice of trial setting under Due Process)
- Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998) (requirements and effect of verified special appearance; unverified special appearance may be defective)
- Sedona Pac. Hous. P’ship v. Ventura, 408 S.W.3d 507 (Tex. App.—El Paso 2013, no pet.) (nonappearing, nonanswering defendant not entitled to notice of default proceedings)
- Lehmann v. Har–Con Corp., 39 S.W.3d 191 (Tex. 2001) (when severed claim becomes final and appealable)
- Anderson v. Anderson, 786 S.W.2d 79 (Tex. App.—San Antonio 1990, no writ) (motion for new trial seeking affirmative relief constitutes general appearance)
- Cappadonna Elec. Mgmt. v. Cameron Cty., 180 S.W.3d 364 (Tex. App.—Corpus Christi 2005, no pet.) (mootness when appellate relief cannot remedy alleged error)