scott-bolding-individually-and-dba-robscott-group-ltd-robscott-group ( 2003 )

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

                                   NUMBER 13-01-306-CV

SCOTT BOLDING, INDIVIDUALLY,

AND D/B/A ROBSCOTT GROUP, LTD.,

ROBSCOTT GROUP II, LTD.

AND THE ROBSCOTT GROUP, LTD.

& ROBERT R. BOLDING, INDIVIDUALLY,                                Appellants,

                                                   v.

CAROL MAUPIN, INDIVIDUALLY, ET AL.,                               Appellees.

                                   NUMBER 13-01-310-CV

SCOTT BOLDING,                                                                 Appellant,

                                                   v.

CAROL MAUPIN, INDIVIDUALLY, ET AL.,                               Appellees.

                        On appeal from the 275th District Court

                                  of Hidalgo County, Texas.

                          MEMORANDUM OPINION

                    Before Justices Hinojosa, Castillo, and Dorsey^[1]  

                        Memorandum Opinion by Justice Dorsey

These are two appeals that have been joined for submission, briefing and argument.  Robert Bolding and Scott Bolding, defendants below, appeal post-answer default judgments granted in favor of appellees, plaintiffs below, Carol Maupin, individually, as trustor and benificiary, Maupin Partners, George E. Nasarre, individually and as beneficiary, and Robert Maupin, trustee. Both appellants  complain that their due process rights were violated because of lack of notice of the date of a dispositive hearing.  We reverse and remand.

The case was set for trial for February 5, 2001, and appellants did not appear, although appellees did. Appellees announced they were not ready to go forward and asked for a resetting to a future date.  On February 8, 2001, appellees appeared, without having the case reset or scheduled for February 8, presented evidence and a judgment adverse to appellants resulted.   There was no notice given to appellants that the trial would be held on February 8, and it is this failure to receive notice of the setting that is the focus of appellants= appeals.

A defendant that has answered has a constitutional right to notice of all hearings.  LBL Oil Co. v. International Power Serv., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989).  AA post‑answer default judgment will only be valid if the defendant received notice of the default judgment hearing.@ $429.30 In United States Currency v. State, 896 S.W.2d 363, 366 (Tex. App.BHouston [1st Dist.] 1995, no writ)(citing Matsushita Elec. Corp. McAllen Copy Data, Inc., 815 S.W.2d. 850, 853 (Tex. App.BCorpus Christi 1991, writ denied); see Tex. R. Civ. P. 245 (the court may reset case to later date upon any reasonable notice to the parties.).      

The court heard evidence and granted judgment on February 8, 2001. The appellants did not receive nor could have ascertained notice of this hearing from the court=s records because the case was not reset for trial.   Since defendants have a constitutional right to notice of all hearings and the right to be heard is fundamental, we must rule that due process was violated due to lack of notice.  LBL Oil Co., 777 S.W.2d at 390-91; Tex. R. Civ. P. 245.

Accordingly, we reverse and remand. Since this issue is dispositive, we will not address the remaining issues. See Tex. R. App. P. 47.1

______________________________

J. BONNER DORSEY,

Justice

Memorandum Opinion delivered and

filed this 16th day of January, 2003.

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^[1]Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).