No-answer and Post-answer Default Judgment No-answer and Post-answer

Rules TRCP: 99 106 10 124 239-241 243 245 252 306 320 321 329

Default Judgment A default judgment permits the trial court to render judgment for the plaintiff without a traditional trial. Only a plaintiff is entitled to a default judgment; a default judgment cannot be rendered for a defendant on the merits of its answer.

Types of Default Judgments No-answer Those rendered before the defendant appears or files an answer to the lawsuit Post-answer Those rendered after the defendant files an answer. Main distinction In a no-answer default case, the defendant admits all of the plaintiff’s allegations except unliquidated damages. In a post-answer default case, the defendant denies the allegations in the plaintiff’s petition and the plaintiff must prove all the elements of its claims.

Comparison of No-answer and Post-answer Default Judgment 1) NA - Court can grant default judgment without a hearing, except for unliquidated damages. 1) PA – Court cannot grant default judgment without a hearing 2) Default constitutes admission by D of allegations in P’s pleadings, except for unliquidated damages. 2) Default does not constitute admission by D of P’s claims or abandonment of D’s defenses.

Comparison of No-answer and Post-answer Default Judgment 3) NA – P must prove unliquidated damages and causal nexus. 3) PA – P must prove all elements of cause of action and damages, as in a trial on the merits 4) NA – D does not waive pleading defects 4) PA – D waives pleading defects unless D filed special exceptions.

Comparison of No-answer and Post-answer Default Judgment 5) NA – D has no right notice of hearing unless D files answer before final judgment rendered. 5) PA – D has right to notice of hearing or trial 6) NA – D has no right to participate unless D files answer or makes appearance before hearing on unliquidated damages. 6) PA – D has right to participate if D makes appearance.

Comparison of No-answer and Post-answer Default Judgment 7) NA – If D files answer requesting jury after default judgment rendered but before hearing on damages, D is entitled to jury trial on damages alone; if D does not make appearance, D waives right to jury. 7) If jury trial was requested before default, D has right to jury if D makes appearance; if D does not make appearance, D waives right to jury

Comparison of No-answer and Post-answer Default Judgment 8) NA – P must file certificate of last known address and servicemembers’ affidavit. 8) PA – P is not required to file certificate of last known address or servicemembers’ affidavit. 9) NA – Sufficiency of service of process on D is an issue; Default Judgment will be set aside if service defective 9) PA – Sufficiency of service is not an issue because D has answered

Required Documentation Motion for Default Judgment Default Judgment Certificate of Last Known Address Servicemembers’ Affidavit Affidavit of Reasonable and Necessary Attorney Fees

Attack on a Default Judgment Direct Attacks on Default Judgments Motion for New Trial – must be filed within 30 days after the judgment is signed. MNT may be used if (1) D was not properly served with notice of the suit, trial, or the hearing, or (2) after receiving proper notice, the D did not appear because of mistake or accident. Restricted Appeal – must be filed within 6 months after the judgment was signed. D was a party to the suit, but did not participate in the trial of the case, D did not file postjudgment motions, and the trial court erred, and the error is apparent on from the face of the document. Ex. Petition, citation, or return of service is inadequate. Bill of Review – must be filed after the TC’s plenary power expires, but within the residual four-year statute of limitations. Sufficient Cause Meritorious defense – did not have the opportunity to prove a meritorious defense Justification for failure to assert defense – must justify failure to present defense by alleging fraud, accident, wrongful act of plaintiff, or official mistake. No fault or negligence – not rendered as a result of its own fault or negligence. Due process violation – if this is alleged, D does not have to meet elements 1 and 2.

Attack on a Default Judgment Collateral Attacks on Default Judgments Seeks to avoid the effect of a judgment by showing the judgment was void b/c: (1) the court rendering it had no jurisdiction over the parties or property, no jurisdiction over the subject matter, no capacity to enter that particular judgment, or no capacity to act as a court, or (2) the order did not meet the requisites of a valid judgment.