Roger Tarrant, Denise Tarrant, Justin Tarrant and the D.A. Tarrant Irrevocable Trust v. Daniel Scarbrough, 12-17-00125-CV

Background

Scarbrough sued Roger and Denise Tarrant for unpaid attorney’s fees; a jury found them liable for $115,607.01 on October 28, 2014, and judgment was entered November 24, 2014.
On November 21, 2014 (after the jury verdict but before the November 24 judgment), Roger and Denise deeded nonexempt real property to their son Justin.
Scarbrough, unable to collect, sued the Tarrants under the Texas Uniform Fraudulent Transfer Act (TUFTA), alleging the November 21 deed was fraudulent.
The Anderson County clerk mailed notice on November 7, 2016 setting a final hearing for January 6, 2017 at 11:00 a.m. Defense counsel (Echols) did not appear at 11:00; the court reset the matter to 1:30 p.m. the same day and proceeded without Echols, taking evidence and rendering a default judgment against the Tarrants enjoining further transfers and authorizing levy against the property; attorney’s fees and costs were awarded.
The Tarrants moved for new trial (without affidavits) and the motion was denied by operation of law; they appealed raising (1) insufficiency of the evidence under TUFTA, (2) denial of due process for lack of notice of the reset time, and (3) abuse of discretion in denying the new-trial motion.

Issues

Issue	Plaintiff's Argument (Scarbrough)	Defendant's Argument (Tarrant)	Held
1. Legal/factual sufficiency to prove fraudulent transfer under TUFTA	Scarbrough: deed was made after verdict and near judgment, to an insider, and debtors claimed no nonexempt assets — badges of fraud support intent	Tarrants: no proof of actual intent to hinder creditors and no showing of lack of reasonably equivalent value	Held: Evidence (timing, insider transfer, prior suit/threat, claim of no assets) legally and factually sufficient to prove fraudulent transfer; issue overruled
2. Denial of due process for lack of notice of reset time (Rule 245)	Scarbrough: resetting on same day requires no further notice; clerk sent initial notice and telephonic appearance permitted	Tarrants: counsel was not notified of the 1:30 reset; opposing counsel should have given notice under Texas Lawyer’s Creed; lack of notice violated Rule 245 and due process	Held: Rule 245 does not require separate notice for a same-day time reset; the Lawyers’ Creed is aspirational and does not create enforceable procedural rights; no denial of due process
3. Trial court abused discretion by denying motion for new trial	Scarbrough: mailing creates presumption of receipt; Tarrants failed to rebut because they filed no affidavits/evidence with the motion	Tarrants: they did not receive notice of the hearing/reset and thus were entitled to relief	Held: Denial was not an abuse of discretion — clerk’s mailing raises a rebuttable presumption of receipt which Tarrants failed to rebut with affidavit or competent evidence; motion properly denied by operation of law

Key Cases Cited

Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) (standard of review for denial of motion for new trial)
Platt v. Platt, 991 S.W.2d 481 (Tex. App.—Tyler 1999) (mailing by clerk creates presumption of receipt)
Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987) (presumption of receipt has force of law absent contrary evidence)
Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571 (Tex. 2006) (nonreceipt must be corroborated to set aside default)
LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (default improper when no actual or constructive notice shown)
Janvey v. Golf Channel, Inc., 487 S.W.3d 560 (Tex. 2016) (purpose and scope of TUFTA; intent to defraud is typically a fact question)
Qui Phuoc Ho v. MacArthur Ranch, LLC, 395 S.W.3d 325 (Tex. App.—Dallas 2013) (circumstantial evidence and TUFTA badges of fraud)
Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) (legal-sufficiency review when appellant did not bear burden of proof)
Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) (factual-sufficiency standard on appeal)