                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00293-CV

                  IN THE MATTER OF THE MARRIAGE OF
                        ELAINE DENISE LANDRY
                                 AND
                       ROBERT DENISON LANDRY
                                 AND
                   IN THE INTEREST OF D.R.L., A CHILD


                           From the 278th District Court
                              Madison County, Texas
                          Trial Court No. 12-13129-278-09


                           MEMORANDUM OPINION

       In this appeal, appellant, Robert Denison Landry, challenges the trial court’s final

decree of divorce. In five issues, Robert argues that: (1) the property division is not

supported by legally and factually sufficient evidence; (2) the child-support award is

not supported by legally and factually sufficient evidence; (3) the trial court erred in not

naming him joint-managing conservator of his child with appellee, Elaine Denise

Landry; (4) the trial court erred in entering a modified possession order; and (5) the trial

court erred in conducting the final hearing without providing him with proper notice of
the trial setting. Because we conclude that the notice to Robert of the final hearing was

improper, we reverse and remand.1

                                          I.      NOTICE

          In his fifth issue, Robert complains that he was not provided proper notice of the

final hearing on the divorce.

A.        Standard of Review

          Here, Robert asserted in his first amended motion for new trial that he did not

receive proper notice of the final hearing conducted on May 17, 2013; however, the trial

court denied Robert’s motion for new trial.

          We review a trial court’s decision to deny a motion for new trial under an abuse-

of-discretion standard. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). A

trial court abuses its discretion when it acts “‘without reference to any guiding rules or

principles’ or, stated another way, when the trial court acts in an arbitrary and

unreasonable manner.” City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750,

757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.

1985)).

          A trial court must set aside a post-answer default judgment when the defendant

satisfies the test articulated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133

S.W.2d 124 (1939). See Ashworth v. Brzoska, 274 S.W.3d 324, 328-29 (Tex. App.—Houston

[14th Dist.] 2008, no pet.). Under Craddock, the defendant must demonstrate that (1) his



          As this is a memorandum opinion and the parties are familiar with the facts, we only recite
          1

those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

In the Matter of the Marriage of Landry                                                       Page 2
failure to appear was not intentional or the result of conscious indifference; (2) there is a

meritorious defense; and (3) the granting of a new trial will not operate to cause delay

or injury to the opposing party. Id. at 329 (citing Cliff v. Huggins, 724 S.W.2d 778, 779

(Tex. 1987)).

        The law presumes that a trial court will hear a case only after giving proper

notice to the parties. Tex. Dep’t of Pub. Safety v. Mendoza, 956 S.W.2d 808, 812-13 (Tex.

App.—Houston [14th Dist.] 1997, no pet.). “Importantly, then, if the defendant did not

receive notice of a trial setting, he satisfies the first prong of Craddock and need not

prove the existence of a meritorious defense to be entitled to a new trial.” 2 Ashworth,

274 S.W.3d at 329 (citing Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988)). As such, a trial

court abuses its discretion in denying a new trial to a defendant who satisfies the

Craddock test. See Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268

(Tex. 1994); see also Cliff, 724 S.W.2d at 779.

B.      Notice Requirements

        The Fourteenth Amendment to the United States Constitution provides: “No

State shall . . . deprive any person of life, liberty, or property, without due process of

law . . . .” U.S. CONST. amend. XIV, § 1. “Once a defendant has made an appearance in

a cause, he is entitled to notice of the trial setting as a matter of due process under the

Fourteenth Amendment to the federal constitution, as set forth in Peralta v. Heights

Medical Center, Inc., 485 U.S. 80, 108, 108 S. Ct. 896, 99 L. Ed. 75 (1988).” LBL Oil Co. v.



        2 Denise does not challenge the third prong of Craddock. See Craddock v. Sunshine Bus Lines, Inc.,
134 Tex. 388, 133 S.W.2d 124, 129 (1939); Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987).

In the Matter of the Marriage of Landry                                                            Page 3
Int’l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam); see In re J.B., 93

S.W.3d 609, 614-15 (Tex. App.—Waco 2002, pet. denied).

        Due process of law requires notice in accordance with the Texas Rules of Civil

Procedure. See Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex. 2005) (per curiam); Finlan

v. Peavy, 205 S.W.3d 647, 653-56 (Tex. App.—Waco 2006, no pet.). Texas Rule of Civil

Procedure 21 provides: “An application to the court for an order and notice of any

hearing thereon, not presented during a hearing or trial, shall be served upon all other

parties not less than three days before the time specified for the hearing unless

otherwise provided by these rules or shortened by the court.” TEX. R. CIV. P. 21. Rule

21 governs notice of trial settings. See Tanksley v. CitiCapital Commercial Corp., 145

S.W.3d 760, 763 (Tex. App.—Dallas 2004, pet. denied); see also Jackson v. Jackson, No. 01-

04-01215-CV, 2006 Tex. App. LEXIS 9495, at *8 (Tex. App.—Houston [1st Dist.] Nov. 2,

2006, no pet.) (mem. op.). “The Court may set contested cases” for trial only “with

reasonable notice of not less than forty-five days to the parties of the first setting for

trial . . . .” TEX. R. CIV. P. 245. The Texas Rules of Civil Procedure also provide:

        Every notice required by these rules, and every pleading, plea, motion, or
        other form of request required to be served under Rule 21 . . . . may be
        served by delivering a copy to the party to be served, or the party’s duly
        authorized agent or attorney of record, as the case may be, either in
        person or by agent or by courier receipted delivery or by certified or
        registered mail, to the party’s last known address, or by telephonic
        transfer to the recipient’s current telecopier number, or by such other
        manner as the court in its discretion may direct.

Id. at R. 21a. Rule 21a governs notice of trial. See Mathis, 166 S.W.3d at 743; see also Cliff,

724 S.W.2d at 780.


In the Matter of the Marriage of Landry                                                 Page 4
C.      Discussion

        The dispositive issue in this appeal deals with the application of the rules of civil

procedure to undisputed facts, which is a question of law that we review de novo. See

Moore v. Wood, 809 S.W.2d 621, 623 (Tex. App.—Houston [1st Dist.] 1991, no writ).

Under Texas Rule of Civil Procedure 8,

        the attorney whose signature first appears on the initial pleadings for any
        party shall be the attorney in charge, unless another attorney is
        specifically designated therein. Thereafter, until such designation is
        changed by written notice to the court and all other parties in accordance
        with Rule 21a, said attorney in charge shall be responsible for the suit as to
        such party.

                All communications from the court or other counsel with respect to
        a suit shall be sent to the attorney in charge.

TEX. R. CIV. P. 8. Neither the trial court nor the clerk may communicate directly with a

party who is represented by counsel. See Withrow v. Schou, 13 S.W.3d 37, 40 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied). The notice requirements of rule 245 are

therefore satisfied by serving the attorney of record. TEX. R. CIV. P. 21a, 245; see Bruneio

v. Bruneio, 890 S.W.2d 150, 155 (Tex. App.—Corpus Christi 1994, no writ) (“[The] rules

suggest that . . . notice . . . [be] sent to the attorney in charge if the party is represented,

or to the party himself if pro se.”). Furthermore, a party challenging a trial court’s

judgment for lack of notice has the burden of proving there was no notice and must

produce evidence in addition to an allegation in a motion for new trial. See Welborn-

Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex. App.—Houston [14th Dist.] 1994, no writ); see

also In re D.K., No. 2-09-117-CV, 2009 Tex. App. LEXIS 9945, at *6 (Tex. App.—Fort

Worth Dec. 31, 2009, no pet.) (mem. op.).

In the Matter of the Marriage of Landry                                                  Page 5
        In the instant case, Denise filed her original petition for divorce on August 10,

2012.    Robert responded by filing an answer and counterpetition for divorce on

September 10, 2012. At the time of filing his answer and counterpetition, Robert was

represented by counsel. However, on January 28, 2013, Robert’s trial counsel filed a

motion to withdraw, asserting, among other things, that Robert “has failed to comply

with the terms of the employment contract entered into” with his attorney. At the time

of the filing of the motion to withdraw, there were no pending settings or deadlines in

the case.

        Subsequently, on March 7, 2013, at the request of Denise, the 278th Judicial

District Court coordinator, sent via certified mail a notice of setting to Robert at his last

known address: 5647 FM 2158; Midway, Texas 75852. This address was provided by

Robert’s trial counsel. Furthermore, the notice of setting stated that the final hearing for

divorce was scheduled for May 17, 2013. The certified receipt was delivered to Robert’s

last known address and was signed for by Jordan Landry, Robert’s brother.

        However, at the time the above notice was sent, Robert was still represented by

counsel. See TEX. R. CIV. P. 8. Indeed, the trial court did not grant counsel’s motion to

withdraw until May 17, 2013, the day of the final hearing, leaving Robert unrepresented

at the final hearing.      Moreover, there is no evidence in the record indicating that

Robert’s trial counsel received notice of the final hearing such that notice could be

imputed to Robert. See Magana v. Magana, 576 S.W.2d 131, 133 (Tex. Civ. App.—Corpus

Christi 1978, no writ) (stating that an attorney’s knowledge of a trial setting is imputed

to her client); see also In re D.W., 353 S.W.3d 188, 192 (Tex. App.—Texarkana 2011, pet.

In the Matter of the Marriage of Landry                                                Page 6
denied (same). In fact, the March 7, 2013 notice specifically states that it was mailed to

the Madison County District Clerk, Denise’s trial counsel, and Robert.

        Because Robert was represented by counsel at the time the March 7, 2013 notice

was sent, and because Texas Rule of Civil Procedure 8 requires that all communications

from the court or other counsel with respect to a suit to be sent to the attorney in charge,

we conclude that the March 7, 2013 notice was improper. See TEX. R. CIV. P. 8, 21a, 245;

see also Withrow, 13 S.W.3d at 40; Bruneio, 890 S.W.2d at 155. Accordingly, we conclude

that the Craddock test was satisfied in this case, and as such, the trial court abused its

discretion in refusing to set aside the default judgment against Robert. See Mathis, 166

S.W.3d at 745; Ashworth, 274 S.W.3d at 329; Mendoza, 956 S.W.2d at 812-13; see also Shook

v. Shook, No. 01-09-00649-CV, 2010 Tex. App. LEXIS 3864, at **3-7 (Tex. App.—Houston

[1st Dist.] May 20, 2010, no pet.) (mem. op.). We therefore reverse the trial court’s final

decree of divorce entered on May 17, 2013, and remand for further proceedings

consistent with this opinion.



                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed April 10, 2014
[CV06]




In the Matter of the Marriage of Landry                                               Page 7
