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Click here for the full text of this decision FACTS:Joe Simmons entered into a contract to build a home for the McKinneys. Disputes arose over the quality of the work performed by Simmons and Simmons’ ability to pay his subcontractors. Eventually, the McKinneys fired Simmons. Simmons retained legal counsel. Simmons subsequently placed a mechanic’s and materialmen’s lien on the McKinney property. The McKinneys filed suit and obtained service upon Simmons. The district clerk filed the McKinneys’ return of service on Simmons on June 7, 2005. Simmons did not file an answer by June 27, 2005, the date the answer came due. On July 19, 2005, at approximately 10:30 p.m., Simmons’ attorneys faxed a general denial and counterclaim to the McKinneys’ counsel. The next morning, the McKinneys appeared before the trial court, proved up the damages and received a default judgment. Later that day, at approximately 2:29 p.m., Simmons filed his answer and counterclaim with the district clerk. Simmons did not receive notice of the default judgment against him until Aug. 24, 2005. Upon learning of the default judgment, Simmons filed a motion to extend postjudgment deadlines, motion for new trial and notice of appeal. The trial court granted the motion to extend the postjudgment deadlines. The trial court did not set a hearing date for the motion for new trial, which was overruled by operation of law. HOLDING:Affirmed. Simmons, the court stated, posited that because he faxed his answer and counterclaim to the McKinneys’ attorney, the McKinneys had constructive notice of his answer; thus, they could not subsequently obtain a default judgment against him. But the court stated that Simmons’ faxing of his answer to the opposing attorney could not protect him from the default judgment under a theory similar to the “mailbox” rule. Had Simmons mailed, faxed or otherwise sent his answer to the clerk before the entry of the default judgment, the default judgment would be in error, the court stated. Thus, the court stated, to properly answer a suit, a defendant must make an appearance in the suit or file an answer with the court seeking a judgment or decision by the court on some question. Next, Simmons contended that since the McKinneys had constructive notice of his answer via fax, the trial court could not hold a hearing on the default judgment without giving notice to Simmons. But the court rejected this argument. The court found that because Simmons failed to make an appearance in the suit, McKinney’s failure to give notice did not result in a requirement to overturn the default judgment. Finally, Simmons argued that his motion for new trial should have been granted, because he demonstrated that his failure to file an answer was not intentional or due to conscious indifference, but was due to mistake or accident; that his motion set up a meritorious defense; and that granting the motion would not result in an undue hardship on the McKinneys. After reviewing the entire record, the court found no evidence supporting Simmons’ contention that his failure to answer the suit was an accident or mistake. Simmons, the court found, simply recited in his motion for new trial that his failure to answer was an accident or mistake. As a result, the court concluded that Simmons failed to negate the trial court’s finding that Simmons’ failure to answer was intentional or the result of conscious indifference. OPINION:Hancock, J.; Quinn, C.J., and Campbell and Hancock, J.J.

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