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Click here for the full text of this decision FACTS:Mary Mathis, appearing pro se, appealed the trial court’s refusal to set aside a post-answer default judgment against her. The court of appeals affirmed, holding Mathis failed to overcome a presumption that she received notice of the trial setting. Mathis and her two children lived with the respondent, Joseph Lockwood, for some period of time before suit. Lockwood filed suit seeking a declaration that he and Mathis were not common-law spouses, and the return of property he claimed Mathis had stolen. Mathis apparently filed an answer, though it is not in the record. The case was set for trial Dec. 13, 2002, before a visiting judge. Mathis did not appear. After brief testimony from Lockwood, a post-answer default judgment was rendered in his favor. On Jan. 9, 2003, Mathis filed a “Motion for a Request Rehearing” asserting she never received notice of the Dec. 13th trial. She testified to the same effect at a hearing on the motion before the court’s presiding judge on Feb. 4th. Lockwood’s counsel testified that notice was sent to Mathis’s last known address and her former attorney. None of the witnesses were sworn, and while the reporter’s record indicates Lockwood’s counsel tendered a document to the judge at this hearing, none appears in the reporter’s record. The trial court refused to set aside the default judgment. HOLDING:The court reverses the court of appeals’ judgment, and remands the case to the trial court. For many years, a post-answer default could be set aside only if a defendant proved three elements: 1. nonappearance was not intentional or the result of conscious indifference; 2. a meritorious defense; and 3. a new trial would cause neither delay nor undue prejudice. Cliff v. Huggins, 724 S.W.2d 778 (Tex. 1987). When the first element is established by proof that the defaulted party was not given notice of a trial setting, the second element is dispensed with for constitutional reasons. For the same reasons, the court of appeals also dispensed with the third element. In any event, Mathis’s sworn motion asserted that a new trial would not injure Lockwood, and nothing in the record establishes the contrary, the court finds. Thus, the only question before the court is whether Mathis established the first element. Unlike service of citation, Texas Rule of Civil Procedure 21a allows service of notices by anyone competent to testify. When a party or attorney of record serves the notice, “[t]he party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument.” Like any other contemporaneous business record, this certificate bears some assurance of trustworthiness, as it was prepared as a matter of office routine before any dispute about notice arose. Without this presumption, there was no evidence that Mathis received notice of the trial setting. Testimony by Lockwood’s counsel that notice was sent did not contradict Mathis’s testimony that notice was never received. Even if the trial judge disbelieved Mathis’s testimony, that would not provide affirmative evidence that service occurred. No other alternatives established service. Notice to Mathis’s former attorney was no longer notice to Mathis after her attorney withdrew. Notice to Mathis’s last known address was sent to Lockwood’s home; Lockwood could not serve Mathis by serving himself. And counsel’s statement at the trial that “I had my office call her and speak to her about today’s hearing” shows no personal knowledge that notice was received, certainly none 45 days before trial, the court finds. Citing Rule 21a’s provision that notice may be sent to a party’s last known address, the court of appeals held that litigants have a duty “to keep the court and parties apprised of their correct and current address.” Even assuming there is such a duty, unless noncompliance was intentional rather than a mistake, due process requires some lesser sanction than trial without notice or an opportunity to be heard, the court holds. The trial court abused its discretion in refusing to set aside the default judgment against Mathis. OPINION:Per curiam.

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