Opinion
14-21-00143-CV
05-19-2022
RUHUL AMIN PARVEZ AHMED, Appellant v. KHALEDA PARVIN, Appellee
On Appeal from the 505th District Court Fort Bend County, Texas Trial Court Cause No. 19-DCV-264584.
Panel consists of Jewell, Zimmerer, and Hassan Justices.
MEMORANDUM OPINION
Jerry Zimmerer, Justice.
Appellant Ruhul Amin Parvez Ahmed appeals a post-answer default judgment of divorce. In challenging the trial court's judgment Ahmed alleges he did not receive notice of the trial setting. Because Ahmed did not overcome the presumption that he received proper notice of trial setting, the trial court did not err when it denied his motion to set aside the default judgment, and we affirm.
Background
On July 18, 2019 appellee Khaleda Parvin filed an original petition for divorce seeking dissolution of her marriage with appellant Ruhul Amin Parvez Ahmed. Ahmed, acting pro se, filed a timely answer. On February 27, 2020, Parvin filed notice of trial setting, which scheduled trial for April 28, 2020. The notice was served on Ahmed via email at two different email addresses. One of the email addresses was dictated into the record by Ahmed at a temporary-orders hearing at which Ahmed appeared. The April 2020 trial setting was postponed.
Another notice of trial setting was filed August 7, 2020 setting trial for October 1, 2020. The October 1, 2020 trial setting notice was served on Ahmed at the same two email addresses. On September 18, 2020, Parvin filed a verified Inventory and Appraisement and a Suggested Division of Community Property.
The trial court held a non-jury trial on October 1, 2020. Before hearing testimony, the trial court noted on the record that Ahmed was not present. The trial court noted that notice of trial setting was prepared August 7, 2020 and sent to both of Ahmed's email addresses previously provided to the court at the temporary-orders hearing. The trial court asked the bailiff to look for Ahmed in the hallway outside the courtroom. The bailiff stepped outside and called Ahmed's name but reported there was no response. After ensuring that the email addresses for Ahmed were correct and that Ahmed was served with notice of the trial setting via email, the trial court proceeded to trial.
Parvin testified that she was married to Ahmed on July 6, 1999, and stopped living with him on April 15, 2019. Parvin testified that the marriage had become insupportable because of discord or conflict of personalities. Parvin further testified that she had been a victim of domestic violence during the marriage. The trial court admitted photographs reflecting injuries Parvin experienced during the marriage.
Parvin testified that the photographs reflected incidents in which Ahmed had punched her in the arm, and choked her. Parvin testified that she moved out of the marital home because Ahmed physically attacked her.
The trial court also admitted Parvin's inventory and appraisement of the marital estate in addition to her suggested division of community property. Parvin requested a disproportionate share of the marital estate due to the abuse she experienced during the marriage and the disproportionate share of her income used to pay debts during the marriage. Parvin testified that she sold property owned by her in Bangladesh in addition to her jewelry in order to pay the mortgage on the marital home. Parvin paid approximately $57,000 of a $142,000 mortgage. At the temporary orders hearing the trial court ordered Ahmed to make payments on a car note entered into by Parvin. Ahmed failed to make the payments, which resulted in the car being repossessed.
At the end of the trial the trial court granted the divorce on grounds of cruelty, and deferred a ruling on division of the property pending review of Parvin's exhibits.
On November 24, 2020, the trial court notified both parties via email of its ruling granting the divorce on the grounds of cruel treatment and insupportability. On December 1, 2020, Ahmed sent a letter to the trial court notifying the court that he had not received notice of the October 1, 2020 trial setting. On December 3, 2020, a notice of hearing on the entry of the final divorce decree was filed notifying the parties that the matter had been set on December 15, 2020. This notice was served on Ahmed using the same two email addresses used previously. On December 8, 2020, Parvin's attorney filed a certificate of Ahmed's last known mailing address.
On December 9, 2020, Ahmed filed a motion to set aside default judgment in which he alleged he had not received notice of the October 1, 2020 trial setting. Specifically, Ahmed alleged:
I filed an answer on December 1, 2020 with the court. I was not given proper notice to come on October 1, 2020 for the trial hearing. My wife's attorney hanged up my phone on 04-28-2020 after the trial was cancelled. I do not want the divorce and I fixed lot of things in our marriage with Khaleda Parvin. I want a new trial and set aside the default judgment by the new Judge David S. Perwin. I want a new trial date. I am trying to get an attorney.
Ahmed asserted he had a meritorious defense as follows:
1. I and my wife Khaleda Parvin did not separate and have been living together except for a month in August 2019 when the restraining order was served to me on 07-19-2020.
2. I paid all the utility bills, my son's expenses and found a job in 2019 August and worked until the pandemic started on March 15, 2020.
3. I lost my relatives due to Covid-19 in July 2020.
4. I could not meet the Judge David S. Perwin before.
5. My case was handled by Judge Cindy M. Aguirre and she told me no divorce and she would give me an opportunity to fix the marriage problems.
6. Family First Policy as Judge David mentioned in his website.
7. My wife told her sister and my cousin that she would give me a 2nd chance. She also promised me the same many times.
The trial court signed the final decree of divorce on December 15, 2020, and Ahmed subsequently re-filed his motion to set aside default judgment.
On February 8, 2021, the associate judge held a hearing on Ahmed's motion to set aside default judgment. At the hearing, Ahmed testified he did not have notice of the October 1, 2020 trial setting.
Parvin introduced evidence that Ahmed's service address was the same email address he had given to the court at the temporary-orders hearing. Parvin also introduced evidence of an email sent to Ahmed on February 28, 2020 notifying him of a trial setting on April 28, 2020. All emails were sent to both of Ahmed's email addresses. Parvin also introduced a copy of an email sent to Ahmed on August 7, 2020 notifying him of the trial setting on October 1, 2020.
Parvin further introduced a document that reflected electronic service of the October 1, 2020 trial setting on Ahmed. The document reflected that Ahmed opened the electronic service notification on August 7, 2020 at 5:38 p.m. Parvin further introduced documentation that Parvin's inventory and appraisement was served on Ahmed electronically but not opened. The same document reflected, however, that Ahmed opened Parvin's suggestion of division of the community estate, which was served the same day. Parvin's attorney sent an email on September 28, 2020 with attached exhibits to be used in the October 1, 2020 trial. The email stated that the exhibits would be introduced in the October 1, 2020 trial set for 1:30 p.m.
Parvin testified that she spoke with her husband over the telephone and personally informed him that the divorce was set for final trial on October 1, 2020.
After Parvin rested, Ahmed testified that he was sick on October 1, 2020. The associate judge asked Ahmed whether he received notice of the trial setting and Ahmed replied that he had not. The associate judge admitted into evidence a screenshot from one of Ahmed's email accounts showing that Parvin's attorney's email notifying him of the trial setting had gone to his "junk" mailbox. Ahmed did not introduce a similar exhibit for his other email address. Throughout the hearing Ahmed asserted that he continued to live in the marital home despite being ordered by the trial court to leave the marital home. Parvin testified that Ahmed was not living in the home. On cross-examination Ahmed admitted he had two email addresses and that the email sent by Parvin's attorney on September 28, 2020 did not go to his junk mailbox. Ahmed, however, continued to deny having received the email from Parvin's attorney. Ahmed testified that he wanted to set aside the default judgment because he wanted a second chance with his wife, and he did not have a place to live. The associate judge found that Ahmed received notice through electronic service as well as email.
After the hearing, the associate judge signed an order denying Ahmed's motion. Ahmed subsequently filed a timely request for a de novo hearing before the trial court.
The trial court held a de novo hearing on Ahmed's motion to set aside default judgment. At the hearing, Ahmed introduced the same exhibit from the hearing before the associate judge, which showed a trial setting email in Ahmed's junk mail folder for one of his email addresses. Parvin also introduced exhibits that were admitted by the associate judge, which showed that notice of trial setting was sent to Ahmed's two email addresses and through electronic service. Documents from the electronic service program showed that notice was sent to both of Ahmed's email addresses and was opened twice, using each email address.
The trial court found that Ahmed received notice of the October 1, 2020 trial setting. The trial court stated on the record that the notice was "submitted different ways" and opened by Ahmed on August 7, 2020. The trial court denied Ahmed's motion to set aside default judgment. This appeal timely followed.
Analysis
On appeal Ahmed generally challenges the divorce and expresses his desire to reconcile with Parvin. As to the default judgment and whether he received notice of trial setting, Ahmed argues the notice he received only stated it was for trial, not "final trial" and that he should have received notice via regular mail.
I. Standard of Review and Applicable Law
To set aside a default judgment, a defendant usually must establish the three factors set forth in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. Com. App. 1939). These are that (1) the failure to answer or appear was not intentional or the result of conscious indifference but was due to accident or mistake, (2) the defendant has a meritorious defense, and (3) the motion for new trial has been filed at a time when granting it will occasion no delay or otherwise work an injury to the plaintiff. Once a defendant has alleged that granting a new trial will not injure the plaintiff, the burden of going forward with proof of injury shifts to the plaintiff. Felt v. Comerica Bank, 401 S.W.3d 802, 806 (Tex. App.-Houston [14th Dist.] 2013, no pet.).
A defendant satisfies his burden as to the first Craddock element when his factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff. Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012). If a post-answer default judgment is rendered against a defendant who had no notice of the trial setting, the defendant is not required to address the second Craddock factor; however, we presume that the trial court will hear a case only when notice has been given to the parties. Tex. Constr. Specialists, L.L.C. v. Ski Team VIP, L.L.C., No. 14-20-00124-CV, 2022 WL 619756, at *6 (Tex. App.-Houston [14th Dist.] Mar. 3, 2022, no pet. h.) (citing Felt, 401 S.W.3d at 806).
We therefore begin our analysis with the presumption that the trial court heard the case only after giving proper notice to the parties. Brandon v. Rudisel, 586 S.W.3d 94, 99 (Tex. App.-Houston [14th Dist.] 2019, no pet.). To overcome this presumption, Ahmed had the burden to make an affirmative showing that he was not given notice of the trial, and to submit competent evidence showing that he had no notice. Id. "This burden may not be discharged by mere allegations, unsupported by affidavits or other competent evidence, that the appellant did not receive proper notice." Felt, 401 S.W.3d at 806 (quoting Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.-Fort Worth 2003, no pet.).
A motion for new trial is a prerequisite to an appellate "complaint on which evidence must be heard such as . . . failure to set aside a judgment by default." Tex.R.Civ.P. 324(b)(1). We review the denial of a motion for new trial for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 929 (Tex. 2009). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any guiding principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
The trial court entered a post-answer default judgment. A post-answer default judgment occurs when the defendant files an answer but fails to appear for trial. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). We will therefore address whether Ahmed overcame the presumption that he received notice of the October 1, 2020 trial setting.
II. Ahmed did not overcome the presumption that he received notice of the trial setting.
Texas Rule of Civil Procedure 21a requires the party or attorney serving a notice under that rule to certify to the court compliance with the rule in writing, over signature, and on the filed instrument. Tex.R.Civ.P. 21a(e). This certificate of service is prima facie evidence of the fact of service, although a party may offer proof that the document was not received. Id.
Here, the record reflects that the Notice of Trial Setting contained a certificate of service in which Parvin's attorney certified that under the Texas Rules of Civil Procedure a true and correct copy of the Notice was served on Ahmed on August 7, 2020. In the certificate the attorney certified that the Notice was served on Ahmed by e-service to two email addresses.
A document filed electronically under Texas Rule of Civil Procedure 21 "must be served electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager." Tex.R.Civ.P. 21a(a)(1). While pro se litigants are not required to participate in the electronic service program, if the pro se litigant's email address is on file the document may be filed electronically or by such other manner as the court in its discretion may direct. See Tex. R. Civ. P. 21a(a). The rules required Ahmed to designate an email address on his pleadings. See Tex. R. Civ. P. 57 ("A party not represented by an attorney shall sign his pleadings, state his address, telephone number, email address, and, if available, fax number."). While Ahmed did not provide his email addresses on his answer, he provided them to the trial court at the temporary-orders hearing.
The certificate of service on the Notice of Trial Setting raised a presumption that Parvin served the Notice and that Ahmed received the Notice. See Tex. R. Civ. P. 21a(e); Johnson v. Harris County, 610 S.W.3d 591, 595 (Tex. App.-Houston [14th Dist.] 2020, no pet.). Parvin also presented evidence at the hearing before the associate judge, and at the de novo hearing before the trial court, that Ahmed opened the Notice through the electronic filing service. Ahmed attempted to rebut the presumption of notice by showing that Parvin's attorney's email to him had gone to the junk mail folder of one of his email addresses. Parvin's attorney's email was a courtesy sent in addition to the electronic service completed pursuant to Rule 21a. Ahmed submitted no evidence to the trial court to rebut evidence that he received the Notice through electronic service and that he opened the Notice on the day it was served. Because Ahmed did not submit any evidence in the trial court rebutting the presumptions of proper service, receipt, and notice, we conclude the trial court did not err in denying Ahmed's motion to reinstate. See Johnson, 610 S.W.3d at 596. We overrule Ahmed's issues challenging the default judgment.
Conclusion
Having overruled Ahmed's issues on appeal we affirm the trial court's judgment.