Laurie Bray v. Mohair Council of America

Opinion filed January 18, 2007 Opinion filed January 18, 2007 In The Eleventh Court of Appeals ____________ No. 11-05-00353-CV __________ LAURIE BRAY, Appellant V. MOHAIR COUNCIL OF AMERICA, Appellee On Appeal from the County Court at Law Tom Green County, Texas Trial Court Cause No. 04C351-L M E M O R A N D U M  O P I N I O N Mohair Council of America filed suit against Laurie Bray alleging breach of contract. Bray filed a pro se answer. The trial court set the case for trial and mailed a notice to both parties. Bray did not appear for trial. Mohair Council presented its evidence, and the trial court entered a judgment in its favor for $123,697.99. Bray retained counsel and filed a motion for new trial supported by her affidavit that denied receiving notice of the trial setting. Bray=s motion was overruled by operation of law. We reverse and remand. I. Background Facts In 1999, Mohair Council and Atelier Carpet, Inc. entered into a joint venture to manufacture and market carpets made from domestically produced mohair. Bray owned the majority of Atelier=s stock. She subsequently sold her stock to a third party and then contracted with Mohair Council to personally assume responsibility for prior financial losses. Mohair Council and Bray entered into new joint venture agreements in 2002 and 2003 that made Bray responsible for 40% of the joint venture=s costs and entitled her to 40% of any profits. Mohair Council filed suit against Bray in 2004. Mohair Council alleged that Bray had breached the joint venture agreements and requested judgment for sampling expenses, inventory losses, unpaid advances, interest, and attorney=s fees. Bray filed a pro se answer in the form of a letter addressed to the county clerk=s office. In her letter, Bray referenced the parties and cause number and asked for postponement of any hearings pending the resolution of some personal issues. Bray did not deny any of Mohair=s allegations. Approximately six months later, the court administrator sent notice to Bray and Mohair Council that a final hearing would be held on May 26, 2005. Mohair Council appeared for trial, but Bray did not. The trial court found that notice of the trial setting had been mailed to Bray and that her answer did not deny any liability or set up any defense. Mohair Council presented evidence and the trial court found that Bray was indebted to Mohair Council for the principal sum of $94,509.40. It also awarded prejudgment interest and attorney=s fees. Bray retained counsel and filed a motion for new trial. Bray=s motion was supported by her affidavit that stated that she had not received notice of the trial setting. Bray asked for a hearing. The trial court did not hold a hearing on the motion; Mohair Council did not file a reply; and the motion was overruled by operation of law. II. Issues Bray challenges the trial court=s judgment with two issues. The first, which alleges that the trial court abused its discretion by not granting her motion for new trial, is dispositive and, therefore, is the only issue we need address. III. Discussion When a defendant makes an appearance, the defendant has a constitutional right to receive notice of any trial setting. LBL Oil Co. v. Int=l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). The failure to provide notice constitutes a lack of due process and is grounds for reversal. Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.CEl Paso 2000, no pet.). Normally, a defendant seeking to set aside a default judgment must also show that it has a meritorious defense and that the granting of a new trial will not cause delay or other injury to the plaintiff. See Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). But when a defendant receives no notice of a trial setting, this additional proof is unnecessary. See Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 660 (Tex. App.CSan Antonio 2002, no pet.). The court=s administrator attempted to provide notice with her letter to the parties. When a letter is properly addressed and mailed, a presumption exists that the notice was duly received by the addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994). If this presumption is not rebutted, it has the force of a rule of law. Id. Bray does not dispute that the court administrator properly addressed and mailed the notice. She simply contends that she never received it. The presumption of receipt vanishes when opposing evidence is introduced that the letter was not received. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). Bray alleged by affidavit that she had not received notice, and she requested a hearing. Because no evidentiary hearing was held, the trial court was bound to accept her affidavit as true. See Van Der Veken v. Joffrion, 740 S.W.2d 28, 31 (Tex. App.CTexarkana 1987, no writ). Mohair Council argues that, even if Bray did not have actual notice, she received constructive notice because the setting was noted on the clerk=s website. Mohair Council cites no evidence to support this contention, and the record does not otherwise indicate what was placed on the clerk=s website or when. Whether a website posting is sufficient to satisfy the due process clause we need not decide today. The absence of any evidence is fatal to this contention. Mohair Council next contends that Bray cannot complain of a lack of notice because she failed to comply with Tex. R. Civ. P. 246 by providing the clerk=s office with a self-addressed stamped envelope. That rule is inapplicable because it applies to nonresident attorneys and not to pro se litigants. See Bruneio v. Bruneio, 890 S.W.2d 150, 155-56 (Tex. App.CCorpus Christi 1994, no writ). Finally, Mohair Council argues that the trial court=s judgment was a Ajudgment nihil dicit@ because Bray=s answer did not deny her liability or plead any defense. Mohair Council concludes that the trial court was authorized to enter judgment against her at any time without notice. Mohair Council cites no authority to support this statement. Our research indicates exactly the opposite. Bray concedes that her answer was defective. Because she did not deny Mohair Council=s allegations, they could be taken as true by the trial court. See Irick v. Hinn, 104 S.W.2d 76 (Tex. Civ. App.CAmarillo 1937, no writ). But because this would be dispositive, the trial court is first required to provide Bray with notice. LBL, 777 S.W.2d at 390. IV. Holding Bray was entitled to notice of the trial setting. Because her affidavit was uncontested and no hearing was held on her motion for new trial, the trial court was required to accept that affidavit as true. This is sufficient to establish that she did not receive notice of the trial setting. The trial court=s failure to grant a new trial in this instance is an abuse of discretion. Bray=s first issue is sustained; the trial court=s judgment is reversed; and this case is remanded to the trial court for further proceedings. RICK STRANGE JUSTICE January 18, 2007 Panel consists of: Wright, C.J., McCall, J., and Strange, J.