Templeton Mortgage Corporation v. Gary M. Poenisch
04-15-00041-CV
Tex. App.May 21, 2015Background
- This appeal challenges a default judgment entered October 15, 2014 in Kendall County District Court in favor of intervenor Gary M. Poenisch against Templeton Mortgage Company (TMC).
- TMC had previously appeared and answered in the underlying suit (Michael Middleton v. TMC) but was without counsel at the default hearing after failing to retain a new attorney following an August 18, 2014 order.
- Poenisch filed a Motion to Enter Default Judgment and Request for Severance; the court signed an Order Setting Hearing dated October 10, 2014 and a Certificate of Service dated October 9, 2014 setting the hearing for October 15, 2014.
- At the October 15 hearing the court struck TMC’s pleadings for failure to obtain counsel and entered default judgment declaring certain deeds void and awarding attorney’s fees to Poenisch.
- TMC appeals, arguing it was deprived of due process because it did not receive the 45‑day notice required for dispositive trial settings under Tex. R. Civ. P. 245 and because the Certificate of Service was facially defective under Tex. R. Civ. P. 21(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment was proper where defendant previously appeared but received less than 45 days' notice of a dispositive hearing | Poenisch: court properly struck pleadings and entered default because TMC failed to obtain counsel after notice and was served with the hearing order | TMC: hearing was a trial setting; Rule 245 requires 45 days' notice to a post‑answer defendant—TMC received 7 days' notice and was denied due process | Court of appeals brief argues the trial court abused discretion; default judgment void because 45‑day notice requirement not satisfied (reversal requested) |
| Whether a certificate of service was facially sufficient under Rule 21(d) | Poenisch: certificate accompanied the Order Setting Hearing and was served | TMC: certificate dated Oct. 9 certifies service of an Order signed Oct. 10, making the certificate facially inconsistent and unreliable | Brief argues the certificate is facially invalid under Rule 21(d); even if clerical, it did not cure the 45‑day notice defect |
| Whether defendant must show meritorious defense or mistake when notice is not received | Poenisch: not argued in detail in brief | TMC: where notice is lacking, due process violation obviates need to show Craddock factors (meritorious defense or excuse) | Brief relies on precedent holding lack of notice eliminates requirement to show meritorious defense or accident/mistake |
Key Cases Cited
- Armstrong v. Manzo, 380 U.S. 545 (1965) (due process requires opportunity to be heard before deprivation of property interests)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (notice must be reasonably calculated to inform interested parties)
- Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988) (procedural protections for defendants who have appeared)
- LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (trial settings are dispositive and require heightened notice protections)
- Mabon Ltd. v. Afri‑Carib Enters., Inc., 369 S.W.3d 809 (Tex. 2012) (post‑answer default without notice of trial setting denies due process)
- Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939) (standard for setting aside default judgments)