Default Judgment
No-answer and Post-answer
Rules
• TRCP:
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–
–
–
–
–
–
–
–
–
–
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99
106
10
124
239-241
243
245
252
306
320
321
329
Default Judgment
• A default judgment permits the trial court to
render judgment for the plaintiff without a
traditional trial.
• Only a plaintiff is entitled to a default
judgment; a default judgment cannot be
rendered for a defendant on the merits of its
answer.
Types of Default Judgments
• No-answer
– Those rendered before the defendant appears or files an
answer to the lawsuit
• Post-answer
– Those rendered after the defendant files an answer.
• Main distinction
– In a no-answer default case, the defendant admits all of
the plaintiff’s allegations except unliquidated damages.
– In a post-answer default case, the defendant denies the
allegations in the plaintiff’s petition and the plaintiff must
prove all the elements of its claims.
Comparison of No-answer and Postanswer Default Judgment
• 1) NA - Court can grant default judgment without
a hearing, except for unliquidated damages.
• 1) PA – Court cannot grant default judgment
without a hearing
• 2) Default constitutes admission by D of
allegations in P’s pleadings, except for
unliquidated damages.
• 2) Default does not constitute admission by D of
P’s claims or abandonment of D’s defenses.
Comparison of No-answer and Postanswer Default Judgment
• 3) NA – P must prove unliquidated damages
and causal nexus.
• 3) PA – P must prove all elements of cause of
action and damages, as in a trial on the merits
• 4) NA – D does not waive pleading defects
• 4) PA – D waives pleading defects unless D
filed special exceptions.
Comparison of No-answer and Postanswer Default Judgment
• 5) NA – D has no right notice of hearing unless
D files answer before final judgment rendered.
• 5) PA – D has right to notice of hearing or trial
• 6) NA – D has no right to participate unless D
files answer or makes appearance before
hearing on unliquidated damages.
• 6) PA – D has right to participate if D makes
appearance.
Comparison of No-answer and Postanswer Default Judgment
• 7) NA – If D files answer requesting jury after
default judgment rendered but before hearing
on damages, D is entitled to jury trial on
damages alone; if D does not make
appearance, D waives right to jury.
• 7) If jury trial was requested before default, D
has right to jury if D makes appearance; if D
does not make appearance, D waives right to
jury
Comparison of No-answer and Postanswer Default Judgment
• 8) NA – P must file certificate of last known
address and servicemembers’ affidavit.
• 8) PA – P is not required to file certificate of last
known address or servicemembers’ affidavit.
• 9) NA – Sufficiency of service of process on D is
an issue; Default Judgment will be set aside if
service defective
• 9) PA – Sufficiency of service is not an issue
because D has answered
Required Documentation
• Motion for Default Judgment
– Default Judgment
– Certificate of Last Known Address
– Servicemembers’ Affidavit
– Affidavit of Reasonable and Necessary Attorney
Fees
Attack on a Default Judgment
• Direct Attacks on Default Judgments
– Motion for New Trial – must be filed within 30 days after the judgment is
signed. MNT may be used if (1) D was not properly served with notice of the
suit, trial, or the hearing, or (2) after receiving proper notice, the D did not
appear because of mistake or accident.
– Restricted Appeal – must be filed within 6 months after the judgment was
signed. D was a party to the suit, but did not participate in the trial of the
case, D did not file postjudgment motions, and the trial court erred, and the
error is apparent on from the face of the document. Ex. Petition, citation, or
return of service is inadequate.
– Bill of Review – must be filed after the TC’s plenary power expires, but within
the residual four-year statute of limitations.
• Sufficient Cause
– Meritorious defense – did not have the opportunity to prove a meritorious defense
– Justification for failure to assert defense – must justify failure to present defense by alleging
fraud, accident, wrongful act of plaintiff, or official mistake.
– No fault or negligence – not rendered as a result of its own fault or negligence.
• Due process violation – if this is alleged, D does not have to meet elements 1 and 2.
Attack on a Default Judgment
• Collateral Attacks on Default Judgments
– Seeks to avoid the effect of a judgment by
showing the judgment was void b/c: (1) the court
rendering it had no jurisdiction over the parties or
property, no jurisdiction over the subject matter,
no capacity to enter that particular judgment, or
no capacity to act as a court, or (2) the order did
not meet the requisites of a valid judgment.