Texas Civil Procedure

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Default Judgments

Availability

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The plaintiff may take a judgment by default against a defendant by showing:

The court has subject matter jurisidiction

Jurisdiction over the defendant by proper service or process (i.e., citation issued, served, and returned),

Allege a cause of action,

Defendant has not filed an answer,

The time to answer has expired, and

The return of citation has been on file 10 days exclusive of the day of filing the citation and the day of the default judgment.

The plaintiff must affirmatively seek the entry of a default judgment. If the plaintiff fails to affirmatively seek the entry of a default judgment, the defendant may file an answer even if the answer is beyond the time provided for in the rules.

The defaulting defendant admits all liability issues, but plaintiff is required to put on evidence of unliquidated damages. When damages are liquidated and proved by an instrument in writing, no evidence beyond this is required.

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Notice to Defendant of Default Judgment

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At or immediately before the time the default judgment is rendered, the party or his attorney must certify to the clerk, in writing, the last known mailing address of the party against whom the judgment is taken.

Immediately after the judgment is signed, the clerk must mail notice of the default judgment to the defendant.

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Setting Aside a No Answer Default Judgment

Motion for New Trial

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A motion for new trial must be filed within 30 days of the date the judgment is signed.

If there is no legal reason (i.e., error by the trial court) to set aside the judgment, the defendant must demonstrate the following equitable grounds to the trial court to obtain relief:

Failure to answer the lawsuit was not intentional or the result of conscious indifference, but was due to a mistake or accident;

Set up a meritorious defense; and

There is no delay or injury to the plaintiff by granting a new trial.

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Setting Aside a No Answer Default Judgment

Restricted Appeal to Court of Appeals

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A restricted appeal may be filed within 6 months of the date the judgment was signed.

In order to set aside the default judgment, the defendant must demonstrate that:

The defendant did not participate in the trial court below and did not file any post-judgment motion, such as a motion for new trial; and

There is error on the face of the record (e.g., no evidence of service in the record).

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Setting Aside a No Answer Default Judgment

Equitable Bill of Review

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An equitable bill of review must be filed within 4 years of the date the judgment is signed. It is a new lawsuit filed in the court in which the old lawsuit was filed and judgment rendered. The movant must demonstrate the following:

A meritorious defense

which the party was prevented from asserting by fraud, accident, or the wrongful act of the plaintiff or official mistake; and

unmixed with any negligence of the defendant

if the bill of review is based on a total lack of service of process, the defendant need only prove a lack of service because due process requires that the traditional requirements be excused.

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Nonsuit

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At any time before the plaintiff has introduced all of his evidence, other than rebuttal evidence, the plaintiff may file a motion seeking an order allowing the plaintiff to take a nonsuit. A nonsuit dismisses the case without prejudice to re-file. The order granting the nonsuit should recite that the motion is granted and that the case is dismissed without prejudice to refiling.

The nonsuit does not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief (e.g., counterclaim) or excuse payment of all costs.

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Summary Judgment

General Standard

Two Specific Standards

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In some cases, the evidentiary record establishes that the moving party is entitled to judgment as a matter of law. A party may move for summary judgment using one of two standards: no general issue of material fact or no evidence.

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No Genuine Issue of Material Fact

Availability

Burdens

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A genuine issue of material fact summary judgment may be sought by either plaintiff or defendant.

The burden of proof is on the moving party to show sufficient conclusive facts to entitle it to a judgment as a matter of law.

Once the moving party carries the initial burden, the non-moving party has the burden of raising an issue of fact.

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No Evidence

Availability

Burdens

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After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the non-moving party would have the burden of proof at trial.

The motion must specifically state the elements as to which there is no evidence.

While the no evidence motion for summary judgment must state the elements as to which there is no evidence, it need not contain summary judgment evidence (i.e. affidavits, transcripts, etc). The motion is to be granted unless the non-moving party produces summary judgment evidence raising a genuine issue of material fact.

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Procedure for No Genuine Issue of Material Fact and No Evidence Motions

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Except on leave of court, the motion and any supporting affidavits must be filed and served at least 21 days before the time specified for the hearing.

The adverse party, not later than 7 days prior to the hearing may file and serve opposing affidavits or other written responses to the motion.

No oral testimony will be received at the hearing.

Evidence is limited to affidavits and all types of discovery such as request for admissions, depositions, etc.

Discovery material such as depositions not on file with the clerk may be used as summary judgment evidence if the discovery material is filed and served on all other parties with a statement of intent to use the material as summary judgment proof.

If relying on a deposition, the party must direct the court's attention to the relevant portion and attach it to the motion. The materials must be filed and served 21 days (supporting the motion) or 7 days (opposing the motion) before the hearing.

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Summary Judgment Evidence

Affidavits

Response to Motion Supported by Expert Affidavit

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Affidavits must be:

Made on personal knowledge of the affiant;

Affirmatively show that the affiant would be competent to testify; and

State facts that would be admissible in evidence (i.e. hearsay and opinion, except in accordance with evidentiary rules, have no effect).

Party respond to a motion for summary judgment supported by an expert's affidavit in a written response to the motion. Party should secure a ruling on the objection and a written order.

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Summary Judgment: Appeal

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A summary judgment that disposes of all issues and parties is a final judgment which may be appealed. If the trial court denies the motion for summary judgment, this order may not be appealed since the denial of summary judgment is a non-appealable interlocutory order. Issues not expressly presented to the trial court by written motion, answer or response shall not be considered on appeal as grounds for reversal.