Wednesday, July 8, 2009

Default Judgment Etiquette Enforced: Dolgencorp of Texas, Inc. v. Lerma (Tex. 2009)


Be Nice to the Defense Counsel and Don't Ask for Entry of Default Judgment While He Is Busy In Another Venue

... or else we will reverse.

Dolgencorp of Texas v. Lerma (Tex. 2009)

In this appeal from a post-answer (and post-jury-selection) default judgment the Supremes remind court and counsel to be understanding when it comes to the logistics of being in two places at the same time. Supremes find that the elements of the Craddock test to set aside default for no-show at trial were satisfied where defense counsel was actually in trial in a different county and there was no secret about it, or lack of effort to deal with and resolve the scheduling problem. The trial judge just wouldn't go along with the continuance, and now stands rebuked.


FROM THE PER CURIAM OPINION:

Finally, this record compels us to note that judges and lawyers should, and in most instances do, extend common and professional courtesies to other judges and lawyers. See Tex. Code Jud. Conduct, Preamble (noting, in part, that judges must strive to enhance and maintain confidence in our legal system and should be governed in their judicial conduct by general ethical standards); Tex. Lawyer’s Creed-A Mandate for Professionalism, III(11) (“I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel’s intention to proceed.”). Here, despite attempts by other judges to contact the trial judge and both Lerma’s counsel and the trial judge being aware that Dollar General’s counsel was in trial elsewhere, judgment was entered against a party that by neither word nor deed exhibited intention to abandon or frustrate the proceedings. It is a credit to the trial bench and bar that this type of record rarely ends up before appellate courts.

We reverse the judgment of the court of appeals. The case is remanded to the trial court for a new trial.

CASE DETAILS AND LINKS FOR Dolgencorp of Texas, Inc. v. Lerma, No. 08-0032 (Tex. Jul. 3, 2009)(per curiam) (motion for new trial after post-answer default judgment due to counsel's scheduling conflict should have been granted)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET AL.; from Cameron County; 13th district (
13-03-00314-CV, 241 SW3d 584, 08-23-07 Opinion by the Thirteenth Court of Appeals below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion

RELATED CONCEPTS: POST-ANSWER DEFAULT JUDGMENTS, MOTION FOR NEW TRIAL, POST-JUDGMENT MOTIONS, ELEMENTS OF CRADDICK TEST, CONSCIOUS INDIFFERENCE, ACCIDENT OR MISTAKE AS REASON FOR MISSING TRIAL SETTING.


1 comment:

Julie said...

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Julie
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