Court of Appeals of Texas, Beaumont.
In the Interest of T.C.R.
No. 09-01-027CV.
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Submitted July 17, 2001.
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Delivered Aug. 9, 2001.
Before WALKER, C.J., BURGESS and GAULTNEY, JJ.
OPINION
PER CURIAM.
*1 The trial court rendered a default judgment against William Jeffrey Robinson in a Suit to Modify Parent-Child Relationship, brought by his former spouse, Tanya G. Snodgrass. While seeking an increase in child support, Snodgrass also sought to become sole managing conservator.1 Robinson appeals, bringing two issues.
In issue one, Robinson argues the trial court erred in granting a default judgment where there is no proof in the record he was given notice of the hearing on October 16, 2000. Robinson’s brief states, “In this case [Snodgrass’s] counsel stated only that a motion for continuance had been filed and that [Robinson] was not present.” Robinson apparently is arguing evidence of notice must have been presented to the trial court at the time of the hearing. The only authority cited by Robinson in support of issue one is Rule 246 of the Texas Rules of Civil Procedure, which requires the clerk to keep a record of cases set for trial and “to inform any non-resident attorney of the date of setting of any case upon request by mail from such attorney, accompanied by a return envelope properly addressed and stamped.” Tex.R.Civ.P. 246. Robinson does not allege his attorney made a Rule 246 request to receive notice and does not explain otherwise how the rule applies here.
Moreover, the record shows Robinson was aware of the October 16 trial setting. He filed a motion for continuance of the setting. Being aware Robinson had filed a motion for continuance, the trial court inquired as to whether it had been granted, and was informed by Snodgrass’s counsel that she had filed an objection. The trial court asked whether “we heard from anyone on this case?” No answer is shown on the record, but the trial court then denied the motion. The motion, which had sought a continuance, was based on Robinson’s counsel’s surgery on October 10, 2000. The record does not show any attempt by counsel to obtain a hearing on the motion for continuance prior to the trial setting. Further, in Robinson’s own affidavit, which was attached to his motion for new trial, he stated that one week before the October 16, 2000, hearing date, his attorney informed him that an agreement had been reached where Robinson would not need to appear in Conroe for the trial setting. According to Robinson, his attorney then scheduled elective surgery. A few days before the setting, the attorney further informed Robinson that a continuance had been filed, “which would be granted by common courtesy,” and Robinson would not have to be present for the hearing. Based on this record, there is little question Robinson was aware of the hearing. Rather, it appears this default occurred, not from lack of notice, but from the assumptions of Robinson and his attorney that the trial court would grant a continuance, even though no hearing had been scheduled on the motion. Robinson provides us with no authority that would prevent the trial court from entering a default judgment against a party who was aware of the hearing but chose not to appear.
*2 Further, though Robinson argues he did not have notice, he makes no attempt to meet the other two prerequisites for setting aside a default judgment. As explained in Director, State Employees Workers’ Compensation Division v. Evans, 889 S.W.2d 266 (Tex.1994), a default judgment is to be set aside and a new trial ordered in any case where (1) the failure of the defendant to answer or appear was not intentional or the result of conscious indifference on his part, but was due to a mistake or an accident, (2) provided the motion for a new trial sets up a meritorious defense and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Evans, 889 S.W.2d at 268 (applying Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)). The Evans Court further noted “[a] motion for new trial is addressed to the trial court’s discretion and the court’s ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion.” Id. at 268. To show the trial court abused its discretion, all three elements of the Craddock test must be met. Id. Robinson does not argue he had a meritorious defense or that the granting of his motion would not cause delay or injury to Snodgrass. Issue one is overruled.
In issue two, Robinson maintains the trial court erred in granting a default judgment for attorney’s fees as there is no proof in the record the fees were necessary, usual, customary and reasonable. Robinson did not include this complaint in his motion for new trial, which apparently was overruled by operation of law.2 See Tex.R.Civ.P. 329b(c). As Robinson’s motion for new trial asserts no error in the district court’s award of attorney’s fees, he has not preserved this issue for our review. See Elite Towing, Inc. v. LSI Financial Group, 985 S.W.2d 635, 644 (Tex.App.-Austin, 1999, no pet.); see Tex.R.App.P. 33.1(a)(b). Issue two is overruled. Accordingly, we affirm the judgment of the trial court.
AFFIRMED.
Footnotes |
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1 |
The parties were divorced in Tarrant County, Texas, in 1989, with the final decree providing for Robinson and Snodgrass to be joint managing conservators of their child, T.C.R., and for Robinson to pay child support. Shortly following Snodgrass’s request in early 2000 for increased child support, Robinson filed a motion to modify in Tarrant County seeking to become T.C.R.’s sole managing conservator. In May 2000, the cause was transferred to Montgomery County, where Snodgrass has resided since 1995. Snodgrass filed her own petition to modify in Montgomery County. |
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2 |
Robinson does not cite to a written order entered on his motion, nor do we find one in the record. See Tex.R.Civ.P. 329b(c). |
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