Philip W. Boyko Litigation Law Blog on Lawyers.com

I recently had a client express serious concern over an issue that is the subject of this post, that being the "answer date" in litigation in which the client was involved.  Shortly after agreeing to take on the lawsuit in which the client had been sued, had been served with citation, but had not answered, I explained to the client that the answer date, according to the Texas Rules of Civil Procedure, was 10:00 a.m. on the Monday next following the expiration of 20 days from service of the petition.  I thought that was simple enough until we arrived at the Friday before the answer date on the following Monday. I had prepared what I thought was a fine answer. It contained a statute of limitations defense and a request that the plaintiff be sanctioned for filing a frivolous petition. The problem arose when I told the client I would mail the answer to the court clerk that Friday and that I would simultaneously fax the answer to opposing counsel.  I immediately received an inquiry from the unnerved client.  His belief was that the answer should be delivered to the court clerk by courier as how else could I be certain the answer would be filed by the Monday, 10:00 am deadline? The client was agonizing over the possibility of his answer actually being received and filed by the clerk on Tuesday, moments after the judge had signed a default judgment. The following is my explanation of why his concern was unfounded.

Even though I mailed his answer on Friday, the client was correct when he said it might not arrive at the court until Tuesday, or possibly even later.  Let's remember, I selected the United States postal service as the method of delivery, not FedEx. However, I calmly told the client that even if it arrives at the courthouse on Wednesday (or later), I didn't care.  The reason for that reply?  Because I faxed the copy of the answer to the opposing attorney on the Friday prior to the answer date, that attorney received notice on that date of two things:

• that I was representing the defendant, and
• that an answer, which was already served on him, was being filed with the court.

Courts don't move on their own for default judgments. The only way a default judgment is entered is by the plaintiff filing a motion for entry of default judgment. If the plaintiff  wished to do so, his attorney would have to include a false statement in the motion that the defendant had neither answered nor made an appearance. Since that attorney was on notice of my representation of the defendant and the defendant's appearance in the lawsuit, the attorney's deliberate statement to the contrary would put him in serious hot water.

I guess it's possible that my opposing counsel could be a scoundrel and would file a motion for default judgment anyway.  Not so fast!  There are additional safeguards that would prevent a default judgment being entered.  My opposing counsel, having received a faxed copy of the answer, would now have to send me a copy of that motion (Rule 21 of the Texas Rules of Civil Procedure requires him to do so) and I would have an opportunity to file a response.  Okay, but since my opposing counsel is a scoundrel, can't we assume that he will fail to send me a copy of his motion for default judgment?  Fear not, as my client is still protected by what I have found to be a fairly uniform procedure of most courts in Harris County with regard to the entry of default judgments.  The judges, when presented with a motion from the plaintiff during the week the defendant's answer is due will almost always "hold" those motions for 5-7 days after the answer date to allow time for the court's receipt of an answer mailed by the defendant on the answer date, not to mention the 2-3 days that it can take from the time the receiving court clerk first sees the answer until it reaches the court's file. If you think I'm wrong, try to get a judge to sign a default judgment on the Tuesday or Wednesday after the Monday answer date.  Good luck.

Nothing in this post should be considered legal advice. let's face it, chances are good that we don't know each other. My aim is simple - to provide the reader with some useful, but general information about the topic. You should not rely on any information in this post without some assurance that the material is still current and applicable at the time it is read. If you want a legal opinion that has teeth, consult your personal lawyer about your particular circumstances. If you don't have a lawyer and like what you see here, perhaps you should contact my law office to determine if I might be a good fit for you. To do so, simply click on my name above and you will be directed to my web site, or you can reach me by telephone at (713) 626-2221  (messages left during non-business hours will be returned the next business day). When responding, please refer to this Blog No. 46.