Motion for Entry of Default Judgment in Texas

What Is a Motion for Entry of Default Judgment?

Background

Default judgment is entered in the trial court against a defendant failing to file responsive pleadings in a timely manner. (Carpenter v. Cimarron Hydrocarbons Corp. (2002) 98 S.W.3d 682, 689.)

“Anytime after a defendant is required to answer, a plaintiff may take a default judgment if the defendant has not previously filed an answer, and the citation with the officer's return has been on file with the clerk for ten days.” (Williams v. Martin (2010) No. 14-09-00257-CV citing Aguilar v. Livingston (2005) 154 S.W.3d 832, 834; see also, Tex. R. Civ. P. 239 Tex. R. Civ. P. 107.)

Default Judgment as Sanction

Rule 215.2(b)(5) sets out the ‘death penalty’ discovery sanctions, which includes ‘an order striking out pleadings’ and ‘rendering a judgment by default against the disobedient party.’ (Tex. R. Civ. P. 215.2(b)(5); see Cire v. Cummings, 134 S.W.3d 835, 839-41 (Tex. 2004); see also O'CONNOR'S TEXAS RULES * CIVIL TRIALS 333 (2011) [“Death-penalty sanctions include dismissal, default judgment, excluding evidence, and jury instructions resolving fact issues in favor of one party.’].)

How to Structure the Motion

The motion must have:

Affidavit (sworn material facts);
Proposed order for the court; and
Statement of relief requested (Entry of Default Judgment) with citations to applicable statute(s), rule(s), or case law that supports your requested relief.

(Tex.R.Civ.P. Rules 21 and 736.)

Tex.R.Civ.P. 736.7 concerns an application for an expedited order allowing the foreclosure of a lien and the specific petition requirements for default when no response is filed. The Rule provides:

If no response to the application is filed by the due date, the petitioner may file a motion and proposed order to obtain a default order. For the purposes of obtaining a default order, all facts alleged in the application and supported by the affidavit of material facts constitute prima facie evidence of the truth of the matters alleged.
The court must grant the application by default order no later than 30 days after a motion is filed under (a) if the application complies with the requirements of Rule 736.1 and was properly served in accordance with Rule 736.3. The petitioner need not appear in court to obtain a default order.
The return of service must be on file with the clerk of the court for at least 10 days before the court may grant the application by default.

“The Servicemembers Civil Relief Act requires that the plaintiff file an affidavit:

stating whether or not the defendant is in military service and showing necessary facts to support the affidavit, or
if the plaintiff is unable to determine whether the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.

(50 App. U.S.C.A. § 521 (2008); Williams v. Martin (2010) No. 14-09-00257-CV.)

Tex. R. Civ. P. 107(h). Rule 107(h) provides that “[n]o default judgment shall be granted in any cause until proof of service as provided by this rule or by Rules 108 or 108a . . . shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.” (Id. at 107(h).)

With a default judgment, a plaintiff seeking to recover unliquidated damages must present evidence of the causal nexus between the event sued upon and the plaintiff's injuries or damages. (Morgan v. Compugraphic Corp. (1984) 675 S.W.2d 729, 732.) The plaintiff must offer proof of his damages and connect the damages to the defendant's conduct. (Id.) A plaintiff must prove unliquidated damages with competent evidence that is consistent with the pleaded causes of action. (In re Elite Door & Trim, Inc. (2012) 362 S.W.3d 199, 201.)

Response

“To set aside a default judgment, a defendant generally must establish the three elements presented in Craddock v. Sunshine Bus Lines:

the failure to appear was not intentional or the result of conscious indifference, but was the result of an accident or mistake,
the motion for new trial sets up a meritorious defense, and
granting the motion will occasion no delay or otherwise injure the plaintiff.”

(Dolgencorp of Tex., Inc. v. Lerma (2009) 288 S.W.3d 922, 925 citing Craddock v. Sunshine Bus Lines, Inc. (1939) 133 S.W.2d 124, 126.)

When a defaulting party meets all three elements, then a trial court abuses its discretion if it fails to grant a new trial. (Id. at 926.)

Restricted Appeal

A restricted appeal is considered a direct attack on a default judgment. (Eguia v. Eguia (2012) 367 S.W.3d 455, 458.) A party may prevail in a restricted appeal only if the following conditions are satisfied:

a notice of the restricted appeal was filed within six months after the judgment was signed;
the appellant was a party to the underlying lawsuit;
the appellant did not participate in the hearing that resulted in the complained-of judgment;
the appellant did not timely file any post-judgment motions or a request for findings of fact and conclusions of law; and
error is apparent on the face of the record.

(Alexander v. Lynda's Boutique (2004) 134 S.W.3d 845, 848, citing TEX. R. APP. P. 26.1(c), 30, and Quaestor Invs., Inc. (1999) v. State of Chiapas, 997 S.W.2d 226, 227.)

In a restricted appeal, the “face of the record” consists of the papers on file with the trial court when it rendered judgment, including the clerk's and reporter's records. (Miles v. Peacock (2007) 229 S.W.3d 384, 387; Campsey v. Campsey (2003) 111 S.W.3d 767, 771.) Accordingly, an appellate court may not consider evidence in a restricted appeal unless it was before the trial court when judgment was rendered. (Campsey, 111 S.W.3d at 771.)

Because the judgment in question is a default judgment, the record must reflect strict compliance with the rules governing the issuance of citation, the manner of its service, and the return of service. (See Primate Constr., Inc. v. Silver (1994) 884 S.W.2d 151, 152, holding that “[f]or well over a century, the court has required that strict compliance with the rules for service of citation affirmatively appear on the record in order for a default judgment to withstand direct attack.”; see also Norwood v. Hudson's Grill Int'l, No. 07-99-0164-CV, (2002) Tex. App. LEXIS 7493, at *3.)

Documents for Motion for Entry of Default Judgment in Texas

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RON TURNER vs. SIKKANTHER MOHAMED YUSUF document preview

1 CCL#5 Y LETTER - DISMISSAL HEARING

1 page

JUDGE NICOLE TAYLOR COUNTY COURT AT LAW NO. 5 GEORGE L ALLEN, SR. COURTS BUILDING 600 COMMERCE STREET, 5th FLOOR DALLAS, TEXAS 75202-5792 214-653-6503 Chambers of Nicole Taylor …