Continental Casualty Co. v. Davilla

ANNE GARDNER, Justice,

concurring.

I concur in the opinion and result, except as to the discussion regarding the motion to extend the postjudgment deadlines after a default judgment. An unin*383tended implication could arise from the majority opinion that a clerk may properly send notice of a default judgment to a defendant’s registered agent for service. The majority indicates the trial court denied Appellant’s motion to extend the post-judgment deadlines because there was no evidence that Appellant’s registered agent for service of process, CT Corp System, also did not receive timely notice of the default judgment. I do not believe that the address of the registered agent for service is the correct address to send a notice of default judgment. And in fairness to the trial court, the context of that statement should be made clear.

The trial judge made that statement only after he had repeatedly inquired of and reminded the lawyers that a specific rule required the clerk to send notice of a default judgment to the last known mailing address of a defendant. Neither side produced a copy of that rule or addressed its requirements. Both parties simply agreed that the last known address in this case was Appellant’s registered agent for service of process and focused, instead, on whether there was evidence that the notice was not received.

Rule 239a specifically governs notice of default judgments, requiring that, at or immediately before a default judgment is rendered, the party taking it or his or her attorney “shall certify to the clerk in writing the last known mailing address of the party against whom the judgment is taken.” 1 I believe this rule is the one the trial judge was referencing and that it, as well as Rule 21a, applies here.2 Rule 239a further provides:

Immediately upon the signing of the judgment, the clerk shall mail written notice thereof to the party against whom the judgment was rendered at the address shown in the certificate, and note the fact of such mailing on the docket.”3

Once the required certificate of the last known mailing address of the defendant is on file, a presumption then arises, in absence of proof to the contrary, that the clerk has sent the notice required by Rule 239a.4 Rule 21a, regarding the “method” of service, likewise generally provides for service of notices by mailing to a party’s last known address, and specifies how proof of mailing invokes an additional re-buttable presumption that the notice was received.5 For default judgments, I do not believe that Rule 21a even comes into play until the certificate is on file. In this case, the records management clerk testified that there was no last known address for Appellant on file and that she would thus have sent the notice of the default judgment to the address on the citation return, 1.e., the address of CT Corp System as registered agent of service for Appellant.

Nevertheless, because the parties simply agreed that the proper address for sending notice in this case was that of Appellant’s registered agent and no issue was raised as to the correctness of that address, the *384majority correctly holds that Appellant’s burden to rebut the presumption of receipt was met by the evidence that its registered agent, CT Corp System, received no notice and that Appellant did not receive notice or actual knowledge of the judgment until July 26.

Rule 239a requires mailing of the notice to the defendant’s last known mailing address “notwithstanding that the defendant may have a different office designated for service of process.”6 Whether the office of the agent designated for service of process is the defendant’s correct last known address under Rule 239a may become particularly important if the judgment becomes final and the defendant is forced to file a bill of review. A bill of review is an independent action to set aside a judgment no longer reviewable by motion for new trial or appealable.7

A defendant deprived of an opportunity to file a timely motion for new trial or timely appeal after a default judgment because of erroneous information furnished to or by the clerk may be entitled to a bill of review when his failure to answer was not intentional or the result of conscious indifference.8 A clerk’s failure to send the notice to the correct last known address as required by Rule 239a is equivalent to “misinformation,” which may entitle the defendant to have the judgment set aside on bill of review.9

Rule 239a is an administrative convenience for parties, and its purpose is to permit timely filing of postjudgment motions by a defendant.10 Failure of the plaintiff to furnish the correct last known mailing address or of the clerk to send the required notice is not reversible error on ordinary or restricted appeal.11 Therefore, I join in the opinion and the result reached by the majority with the exceptions noted.

. Tex.R. Civ. P. 239a (emphasis added). In contrast, Tex.R. Civ. P. 306a(3) generally provides that, when a final judgment or appeal-able interlocutory order is signed, the clerk "shall immediately give notice to the parties or their attorneys of record by first-class mail.” Notice of a judgment dismissing for want of prosecution is governed by Rule 165a(l), which states that notice of the dismissal "shall be given as provided in Rule 306a.” Tex.R. Civ. P. 306a.

. See Tex.R. Civ. P. 21a, 239a.

. Tex.R. Civ. P. 239a (emphasis added).

. Sanchez v. Tex. Indus., Inc., 485 S.W.2d 385, 387 (Tex.Civ.App.-Waco 1972, writ ref'd n.r.e.).

. Tex.R. Civ. P. 21a.

. Buddy "L”, Inc. v. Gen. Trailer Co., 672 S.W.2d 541, 545 (Tex.App.-Dallas 1984, writ ref d n.r.e.) (citing Hillson Steel Prods., Inc. v. Wirth, Ltd., 538 S.W.2d 162, 166 (Tex.Civ.App.-Honston [1st Dist.] 1976, no writ)).

. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex.1999); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.1998).

. Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 244 (Tex.1974) (citing Hanks v. Rosser, 378 S.W.2d31 (Tex.1964)).

. Id. at 243; Long v. McDermott, 813 S.W.2d 622, 623 (Tex.App.-Houston [1st Dist.] 1991, no writ); Buddy “L", 672 S.W.2d at 545.

. See, e.g., Clements v. Barnes, 822 S.W.2d 658, 660 (Tex.App.-Corpus Christi 1991), rev’d on other grounds, 834 S.W.2d 45 (Tex.1992); Bloom v. Bloom, 767 S.W.2d 463, 468 (Tex.App.-San Antonio 1989, writ denied).

. Campbell v. Fincher, 72 S.W.3d 723, 725 (Tex.App.-Waco 2002, no pet.) (holding bill of review, not restricted appeal, proper remedy for failure of clerk to send notice of default judgment); Long, 813 S.W.2d at 624 (holding judgment not reversible error on ordinary appeal for party’s failure to furnish correct certificate); Grayson Fire Extinguisher Co. v. Jackson, 566 S.W.2d 321, 322 (Tex.Civ.App.-Dallas 1978, writ ref d n.r.e.) (same).