*1 the Matter of MARRIAGE OF Ann Tim Lisa RUNBERG
Runberg S.F.R., and in the Interest M.D.R., J.L.R., Z.G.R., J.G.R. Chil
dren.
No. 07-03-0382-CV. Texas, Appeals
Amarillo. 12, 2005. Jan.
OPINION JOHNSON,
PHIL Chief Justice. Runberg challenges Tim Doak of divorce. He contends that the trial court abused its discretion motion for new trial because overruling his given appeared he had but was setting hearing. for final no notice of the and remand. We reverse
BACKGROUND 20, 2003, Runberg March Lisa Ann On filed suit the 47th District Court of County Randall for divorce from 22nd, Tim Runberg. Doak On March Doak citation and with a was served with temporary restraining order which had granted by visiting judge. been order, matters, restraining among other appear Judge commanded Doak to before 26th, James W. Anderson on March why temporary show cause relief should granted. Judge not be Anderson was sit- regular judge 47th ting for the of the District Court. acting pro
Lisa, Doak, attorney, her and se, Judge court before Anderson temporary on March 26th. The orders signed by Judge following the Anderson (1) appeared recited that Doak (2) person ready, and announced “[t]he parties agreed have to the terms of this (3) order,” and the Court examined the record, agreement parties of the and thirty-page heard evidence. The written (1) rights order delineated and duties of chil- Lisa and Doak as conservators Lubbock, Moody, David E. Appel- for (2) marriage; provisions of the for dren lant. (3) children; with their Doak’s visitation $2,500 obligations pay support child Woodburn, Woodburn, Douglas R. Wat- month, per provide insurance and health Jackson, L.L.P., Amarillo, Ap- kins & for children, support pay spousal care for the pellee. month, prepare file income per and $500 JOHNSON, C.J., returns, debts; timely pay specified Before and REAVIS tax (4) CAMPBELL, which Doak had to JJ. the date parties. judge support move out of asked to set the home child $2,500 month, per orders which was the same pages contained three one-half injunctive support paid tempo- amount set to provisions of detailed directed rary support “... and a child after a statement that Lisa and Doak *3 Runberg appeared.” which Mr. did Lisa waived issuance and service of the not file to response pleading. Doak’s injunction by stipulation. 26, By 2003, regu- dated June the order 22, 2008, May As of the clerk’s record judge lar of the 47th District denied Court no proceedings reflected further Doak’s motion for new trial without a hear- Doak’s appearance day passed suit. had ing. A hearing on Doak’s Motion to Va- and he had not filed answer. See Judgments cate the and Orders Court’s Tex.R. Civ. P. 237.1 Without notice to 2003, 22, May July after was 16th. held Doak, hearing petition a final on Lisa’s for denied, That was but Doak makes motion May divorce was 22nd held on de- no will complaint ruling, about and we signed fault decree of divorce was that ruling.2 not address that day. See TRCP 239. issue,
Doak filed a
By
written answer on June 6th.
one
Doak asserts that the
20th,
pleading
failing
On June
filed a
its
he
entitled
court abused
discretion
Respondent’s
grant
Motion for New Trial and
to
motion for a
trial.3 Cit
new
Judgments
Motion to
All
ing
Vacate
v. International Power
Oil Co.
Servs.,
22,
Inc.,
(Tex.1989),
May
Orders From and After
Lisa three In LBL First, ments. she references Brown v. defendant filed a written motion dismiss Brown, (Tex.App.-Houston personal jurisdiction. for lack of The mo- 1975, writ), support for [14th Dist.] A tion to dismiss was denied. written *4 granting judgment the trial court’s judgment answer not filed and default Next, that argues denial of new trial. she was taken without notice the defendant. “appeared” Doak had not in the suit and by error. appealed The defendant writ of process rights his due under the Four- reversing judgment, In the default the teenth Amendment Fi- were not violated. Supreme simply Texas Court said nally, she maintains that the trial court did appearance once a defendant has made an denying not err in a new trial because cause, in a the defendant is entitled to support Doak failed to his motion for new setting notice of a trial as a matter of due fulfilling requirements trial with evidence Amend- under the Fourteenth by out set Craddock. Supreme ment. Id. 390-91. The not the did consider defendant’s written
STANDARD OF REVIEW
challenge
jurisdiction
to the trial court’s
The trial court’s denial of a mo
contempla-
abe written answer within the
tion for
new
is reviewed for abuse of
procedure,
tion of the rules of civil
see
Prewitt,
discretion. Strackbein v.
(every petition
TRCP 46
and answer shall
A
S.W.2d
in
writing)
be contained
one instrument of
if
abuses its discretion
its decision is arbi
(original
may
and TRCP 85
answer
consist
unreasonable,
trary,
and without reference
jurisdiction
pleas
or other dilato-
to guiding
principles.
rules and
See Goode ry pleas),
specifically
because the Court
Shoukfeh,
appeal
involving
post-
referred to the
as
“a
1997). Likewise, a trial court
its
abuses
case,”
appearance
op
default
discretion if it
power
declines to exercise a
posed
post-answer
to a
by
of discretion
in it
vested
law when the
Co.,
LBL
case. See
Oil
require
power
circumstances
not follow
Lisa contends that we should
exercised;
ifor
it arrives at its choice in
rather,
Brown,
but,
follow
rule,
an applicable legal
princi
violation of
Brown,
respon-
In
730.
Koch,
ple, or criterion. See Koch v.
with citation and
dent husband was served
(Tex.App.-San
Antonio
counsel at a show-cause
appeared with
pet.);
Budinger,
no
Landon v. Jean-Paul
file
hearing, although he did not
writ-
Inc.,
(Tex.App.
939-40
which could be considered as
ten document
writ).
-Austin
no
pleading. Judgment
of divorce was sub-
A
sequently
trial court does not abuse its
entered without notice
husband,
denying
appealed.
discretion
a motion for new
and husband
granting
though
trial when the
of a new trial is
court of
held that even
appeals
suit,
dependent
questions
appeared
of fact to be
husband
absent
decid
court,
by
pleading,
ed
the trial
unless the evidence written
the case was uncontested
ties,
prop-
with
including
ability
his
to deal
hearing
the final
and advance notice of
by
procedure
money,
of civil
financial matters and credit
erty,
not
the rules
cards,
local trial court rules.
Id. at 732.
entry
or the
until
of the final decree of
Brown, however,
did not
appellant
of the court.
divorce or further orders
process rights
contend that his due
indicated that
The docket sheet notation
violated,
Doak contends in the matter
temporary orders were announced
agreed
inapposite.
us. Brown is
before
parties
and were
acknowledged
temporary or-
adopted by the Court as
Next, we consider whether Doak
ders.4
suit
“appearance”
made an
the divorce
before
when he attended
attendance at
during
Doak’s actions
26, 2003.
Judge Anderson on March
26th
were of different
the March
so,
we note that
no written answer
doing
actions
quality
than those
nature
lawsuit,
whether a
has been filed
appear-
comprise
we held
which
did
na
“appeared” depends
has
on the
party
ance
Smith.
party’s activities
quality
ture and
Smith,
Smith,
Bradford,
the case. See Bradford
with the live
appellant had not been served
(Tex.App.-Dallas
being
trial was
pleading on which the
*5
quality of activities
pet.). The nature and
“ready.”
announce
appellant
nor did the
encompass
filing
the
of
to be considered
Further,
not
in Smith did
appellant
the
Co.,
documents,
LBL
written
see
Oil
agreement con-
enter
into an extensive
activity. See
personal
at
and
suit,
the
cerning
subject matter of
the
598;
Bradford, 971 S.W.2d at
Smith
incorporated
agreement was then
which
Dist.,
615, 617
Hosp.
Amarillo
into a court order.
writ).
1984,no
(Tex.App.-Amarillo
more of the
was
participation
Doak’s
affidavit,
was attached to
Doak’s
which
by the
quality
participation
and
nature
trial, did not address
his motion for new
595. In
Bradford,
appellant
degree
the
of his
appearance
his
at two
appeared
Bradford,
hearing
in the March 26th
participation
“ready,” and testified
hearings, announced
However,
tempo-
temporary orders.
hearings.
appellant’s
at one of the
testimony at
rary
and Lisa’s
orders
determined
actions in
Bradford
the tri-
hearing, which were before
such
appearance
have been an
uncontested
al court at the time Doak’s
aside the default
failure to set
trial court’s
denied,
showed
motion for new
was an
notice
taken without
court,
attended
announced
that Doak
at 598.
Id.
abuse
discretion.
hearing,
26th
and
“ready” at the March
Doak’s
court denied
At the time the trial
agreement as to
entered into an extensive
trial,
before
the evidence
motion for new
conservator-
governing
orders
temporary
not simply
Doak did
the court showed that
marriage, property
ship of children
Anderson,
he
Judge
court before
attend
spousal support
and
marriage,
of the
child
or-
show-cause
by
to do
was directed
responsibil-
and allocation of
pay,
he would
der,
proceedings.
merely
then
observe
waived, by stipulation,
ity for debts. He
Smith,
The evi-
in- See
agreed-upon temporary
service of the
announced
that Doak
dence reflected
certain of his activi-
junction which limited
when
the court
otherwise
before
reporter’s
March
was not
copy
record of the
4. A
of the
hearing
by Judge
was not
trial was denied.
Anderson
for new
26th
Doak’s motion
Doak’s motion for new trial
attached to
...
equity.
by principles
controlled
ready
partici
he was
for the
have some measure
proceeding
cooperating
in the
trial courts
pated
While
truth,
matter, as,
an
to the court
submitting
agreement
in the
discretion
obligations
governed
which
governed
equi-
they have
all cases
their children and their
parties,
of the
it is not an unbridled
principles,
table
subject to further orders of the
property,
they might
to decide cases
discretion
subject
to a
agreed
court. He
himself
any
without reference
proper,
deem
injunction—
court order —the
detailed
judges
principle. Trial
guiding rule or
personal
freedom and
which restricted
princi-
to have a
desire and are entitled
and fi
ability
property
to deal with his
we,
them, and
there-
guide
or rule to
ple
hand,
the other
there was no
nances. On
fore, reannounce,
changed
in slightly
the trial court at the time
evidence before
by the
established
language the rule
the motion for new trial was denied which
authorities,
A default
as follows:
above
supported
finding
would have
that Doak
and a new
judgment should be set aside
passive
pro
only
observer
case which
trial ordered
March
ceedings. Doak’s actions at the
of the defendant to answer before
failure
qual
were of such nature and
intentional,
or the re-
judgment was
an
ity
comprise
appearance
as to
his part,
of conscious indifference on
sult
law,
Eagle
suit as a matter of
see Golden
accident;
to a mistake or an
but was due
Inc.,
Archery,
24 S.W.3d at
and his
for a new trial sets
provided the motion
right
of the final
due
to notice
defense and is filed at
up a meritorious
hearing attached. See
granting thereof will oc-
time when the
S.W.2d at 390-91.
delay
or otherwise work
casion
*6
Finally,
just
address whether Doak
a
injury
plaintiff.
we
to the
This is
fulfill
of
to
the mandates
prevents
injustice
rule.
It
an
in order
default
Craddock
to have the
working
injustice
an
without
defendant
judgment set aside. Craddock sets out the
a rule has the
plaintiff.
on the
Such
applicable
rule
to motions for new trial
equity.
sanction of
seeking
judgments
to set aside
en
default
Craddock,
(emphasis
at 126
133 S.W.2d
for
to
an
tered
failure
file
answer well
added).
post-answer
Ivy
as for
defaults. See
Supreme
has main-
The Texas
Court
Cairell,
(Tex.1966);
407 S.W.2d
granting
in
to
regard
tained that the law
Craddock,
vorce majority from the respectfully I dissent 86-7, 896; Lopez, 757 108 S.Ct. is that a reversal of the Parker, 723; 20 Marriage In re of v. Company in LBL by the decision Oil It follows that insofar as Doak at 817-18. Services, 777 S.W.2d International Power concerned, holding Lopez applies of is (Tex.1989). 390 prongs and third of to both the second is, of Doak’s disassoci- That the violation in LBL cannot be Craddock. The decision of its or constructive out of context process right to actual from or taken due ated Dodgen, 158 final means that Haden Co. notice of the facts. See W.D. (1958). 838, In 74, 840 trial and attached Doak’s motion for new Tex. Bank, American a v. First up need not have either set Lester affidavits 1993, 361, writ (Tex.App.-Waco or addressed the S.W.2d meritorious defense unincorporat- denied), sole owner of noting prior that the decision in a he was the it prior Company, if only applies the facts of business case ed ” substantially ‘dba,’ juris- the same as those case are and there was no “Oklahoma review, that the the court concluded under there had been him because diction over binding prior effect of a decision cannot be the trial court over- no service. Id. After impor him, determined without reference to its upon notice to Lindley’s ruled motion applies tant facts. Stare decisis when plaintiffs of any amendment without substantially the prior facts of a case are notice, or further pleadings as the case under consideration. See same Upon judgment.1 Id. rendered a default Kaye, 9 Edwards v. error, of Lindley’s consideration de App.-Houston pet. [14th Dist.] the record held that because the Court nied). Lindley had no actual or con- established hearing, he structive notice of the default
Moreover, process “due of law” is not of law. Id. at process had been denied due concept technical a fixed content having time, place, unrelated to and circum stances; rather, implies the term funda resident, Doak, Lindley, a Texas Unlike par mental fairness the context of the expressly served which personally ticular case. See Southwest Indem. Prof. if not file a gave him notice that he did Ins., Dept. Texas the clerk on the Mon- written answer with denied). Fur (Tex.App.-Austin day following expiration twenty next ther, process guarantee due does not citation, a days after service of “default form particular procedure of state judgment may against be taken [him].” is satisfied he had notice of the suit and Rule requirements addition to the opportunity reasonable to be heard. Do the citation further notified Doak: hany Rogers, U.S. S.Ct. authority has in this suit to The Court (1930). question L.Ed. 904 Because the any judgment dissolving or decree enter intensive, is fact due we need for the divi- marriage providing compare the facts in LBL with the facts binding on property sion of which will be presented here to also determine whether you. given Doak was not opportu reasonable authority in this has suit nity to be heard on the merits of his case. any judgment enter or decree Bank, Cunningham v. Parkdale will interest which child/children’s binding upon you, including the termi- Our review of the facts is limited to such parent-child relationship, nation of the
history opinion as is reflected and the paternity, determination of LBL, Supreme Texas Court. a Texas au- *8 appointment of a conservator with plaintiff corporation allegedly a sued Texas thority to consent to the child/children’s doing Systems as LBL Gas on a business adoption. on the sworn account and obtained service attorney Neither Doak nor his retained Al- registered agent. 770 citation, plead- or other filed written answer though he was never served with Oklahoma, constituted ing, and such failure answer Lindley, R.H. a citizen of filed allegations in Lisa’s alleging suit an admission of pro se motion dismiss the against corporation, both. judgment was or 1. We are unable to determine if against Lindley, individually, or rendered 202 reasonably proba- calculated to cause and Thompson, v. 578 S.W.2d
petition. Stoner
679,
(Tex.1979);
Harmon v.
an
bly
improper
682
see also
did cause the rendition of
Harmon,
213,
(Tex.App.
217
prevented
pre-
879 S.W.2d
Doak from
denied).2
1994,
Houston
[14th Dist.]
senting
appeal. Tex.R.App.
the case on
P.
answer,
attorney
Doak or his
filed an
Had
Further,
only
44.1.
the error affects
245,
per
given
have been
Rule
he would
not all of the
part, but
setting,
the trial
not
“reasonable notice” of
part
may
only
be reversed
as to the
affect-
days.3
45
less than
P.
Tex.R.App.
the error.
ed
applica-
that
44.1(b);
Tex.R.App.
Doak does not contend
P. 61.
see also
ble Texas Rules of Civil Procedure are
error doctrine is well es-
harmless
that his
unconstitutional or deficient or
v. Texas
tablished
Texas.
Walker
result
failure to file an answer was not the
Association, 155
Insurance
Employers’
diligence
part.
of an absence of
on his
(1956),
617,
298,
291
301
Tex.
Lindley, who was never notified of
Unlike
presumed prej-
that the rule of
Court held
filing
a written
consequences
longer applies
udice no
Texas. After
answer, Doak’s lack of notice of the default
Hulse,
decision, in
v.
362
that
Dennis
product of his or his coun-
was the
(Tex.1962),
308, 309
the Court held
answer,
timely file an
sel’s failure to
an
must also show the error
timely
failure to
file an an-
his counsel’s
an
cause the rendition of
probably did
imputed
is
to Doak. See Dow Chemi-
swer
Later, in
v.
improper judgment.
Lorusso
Benton,
477,
cal
v.
163 Tex.
357 S.W.2d
Co.
818,
603
Members Mut. Ins.
565,
(Tex.1962);
In-
Employers
567
Texas
(Tex.1980),
the Court held
Wermske,
540,
162 Tex.
surance Ass’n v.
to all errors
“applies
harmless error rule
(1961).
90,
I
Accordingly,
349 S.W.2d
as to the
in that
it draws no distinction
controlling
LBL not
would hold that
is
requirement
of errors involved
its
type
given
opportu-
that Doak was
a reasonable
Also,
recently held that
for reversal.”
we
nity to
heard on the merits of his case.
demonstrating
import
harm is “of
since the
No Reversible Error
lay
to establish on
burden
on [appellant]
purported
error caused
appeal that
Moreover,
may reverse a
before we
improper judgment.”
re
rendition of
judgment and order a new trial we must
580,
Scott, 117
Marriage of
of amount-
complained
find that the error
2003,
pet.).4
(Tex.App.-Amarillo
no
of Doak’s
as was
ed to such a denial
689,
(Tex.Civ.App.-
apply
pro
par
dolph, 467 S.W.2d
procedure
2. The rules of
se
dismissed);
attorneys.
State
Ins. Co.
ties
well
Amarillo 1971
Mansfield
Gulf
Cohn,
181,
Ball,
605,
(Tex.Civ.App.-
Bank v.
573 S.W.2d
v.
324 S.W.2d
1978).
n.r.e.);
ref'd
1959 writ
Amarillo
Ratliff
(Tex.Civ.App.-
Clift, 312 S.W.2d
Rolon,
generally Rolon v.
907 S.W.2d
3. See
n.r.e.); see also In re
1958 writ ref’d
Amarillo
1995, writ)
(Tex.App.-Beaumont
no
B.S.W.,
(Tex.App.-Texar
allowing
(holding
the trial court erred
denied);
Sanford,
Hooper
pet.
kana
proceed
had not been
trial to
when counsel
(Tex.App.-Tyler
968 S.W.2d
245).
given
required by
notice as
Rule
Owens-Corning Fiberglas Corp. v. Ma
pet.);
lone,
(Tex.App.-Houston
Hicks,
Knight
4. See also
*9
1996), aff'd,
appearance the trial setting of the trial notice rules of comply with the court failed Although he had the burden notice.5 probably alleged error demonstrate improper judg- of an caused the rendition presenting him from prevented ment or here, Doak not address Rule his case does contention, argument, 44.1 present nor error analysis demonstrating Considering that Doak’s was reversible. his to file an constituted failure answer allegations peti- admission of the in Lisa’s carry tion and because Doak did not alleged burden to demonstrate improper in an probably error resulted judgment, may judg- we not reverse the
ment because the error is not reversible Rule 44.
per herein, I For the reasons stated would trial court. affirm the In re STATE of Texas.
No. 03-04-00684-CV. Texas, Appeals
Austin. Feb. appeal was directed (Tex.App.-Houston writ de 5. Doak's notice [1st Dist.] 22, 2003, May not the taken nied). for new trial. denial of his motion