Justice David Gunn
The Houston [1st] Court of Appeals has vacated a trial court order setting aside a default judgment where the party against whom the judgment was taken simply didn’t follow the rules.
In re Dannie Smith (No. 01-24-01004-CV; May 20, 2025) arose from a 2024 lawsuit in which Smith alleged causes of action against City Classic Cars and Restoration Group for breach of contract, conversion, civil theft, and DTPA violations. Plaintiff served process on City Classic on April 10, 2024. When no response came in, Plaintiff filed a motion for default judgment because Defendant failed to appear in violation of the Texas Rules of Civil Procedure. The trial court heard Plaintiff’s motion on July 15, 2024, and once again Defendant failed to appear. Consequently, the trial court signed a default judgment in Plaintiff’s favor on that date. More than two months later, however, City Classic filed a motion to set aside the default judgment and reinstate the case on the court’s docket. Pleading that it hired counsel and mistakenly thought “the matter was being handled,” City Classic confessed to a “mistake,” but further alleged that Plaintiff failed to comply with TRCP 239a “by providing an inadequate certificate of last known address for City Classic in connection with seeking the default judgment.” Plaintiff responded that Defendant’s motion was not timely. The trial court heard the motion on November 4, 2024 and signed an order setting aside the default judgment and reinstating the case. Plaintiff sought mandamus relief.
In an opinion by Justice Gunn, the court of appeals conditionally granted the writ. The decision turned on the sequence of events that follows (or should follow) the signing of a judgment. Plaintiff-Relator argued that the trial court abused its discretion by granting Defendant’s motion after its plenary power had expired. Under ordinary circumstances, TRCP 329b provides that a trial court retains plenary power for 30 days after entry of a judgment (though certain motions, such as a motion for new trial or to modify a judgment extend the deadline). That did not happen here. Defendant’s motion to set aside the default judgment “was the equivalent of a motion for new trial” under Rule 329b (citation omitted). It thus had to be filed prior to or within 30 days after the judgment was signed, or in this case, no later than August 14, 2024. Since the trial court didn’t sign the set-aside order until November 4, it acted well after its plenary power expired.
Defendant tried to wire around this problem by asserting that it didn’t receive notice or acquire actual knowledge of the judgment, thus resetting the clock pursuant to Rule 306a(4). But, as Justice Gunn pointed out, “[t]he application of [Rule] 306a(4) is not automatic. To alter the date by which deadlines begin to run under [the rule], the adversely affected party ‘is required to prove in the trial court, on sworn motion and notice, the date on which the party … first either received notice of the judgment or acquired actual knowledge of the signing” (citations omitted). Defendant, however, failed to file that motion and never established the date of notice or actual knowledge. That failure left the default 30-day plenary power period in effect, so the trial court’s set-aside order was untimely and void.
Making one last throw, Defendant argued that Plaintiff-Relator failed to “provide an adequate certificate of Last Known Address” pursuant to Rule 239a. This rule requires a party to certify to the clerk of the party against whom the default judgment is taken that party’s last known address. Unfortunately for Defendant, Plaintiff-Relator did file that motion showing a street address in Spring as the last known address. Defendant protested that the address was wrong and that Plaintiff knew it was wrong. Plaintiff-Relator responded that the address provided belonged to Defendant’s managing member and was the address provided on Defendant’s repair orders at issue in the underlying case. The court concluded that it didn’t have to reach the issue for the simply reason that Rule 239a “does not impact, alter, or extend the trial court’s plenary power” (citation omitted). Defendant’s failure to file a motion complying with Rule 306a was determinative.
This is one of those opinions trial practitioners (and not only those who obtain a default judgment) should read and commit to memory. Every time there is a slip-up on the post-judgment timeline, a court of appeals has to sort it out and remind everyone of what the rules actually are. Rules matter, and there are just so many bites at the apple a party can reasonably expect to get.
