Order Denying Motion for Default Judgment:
Plaintiffs motion for a default judgment came regularly for hearing on December 28, 1994. Counsel for both parties were present.
Plaintiff commenced this action on August 5, 1994. Defendant was served with process on August. 9, 1994, and filed an answer on August 11, 1994. However, defendant failed to provide plaintiffs counsel with a copy of the answer. Thus, on November 17, 1994, plaintiff initiated default proceedings and, by oversight of the answer on file, obtained the clerks entry of defendants default. On the same day, the clerk issued the notice of the hearing on this motion, which was served on defendant on December 1, 1994.
While we express disappointment with defendants counsel when he neglected to ensure compliance with service procedures at the time of filing the answer, and perhaps even more so when counsel learned of this correctable mistake, we cannot grant a default judgment in the face of an answer effectively denying liability. As provided in T.C.R.C.P. 55(c), defendant would be properly entitled to relief by setting aside any such judgment by a motion under T.C.R.C.P. 60(b).
Accordingly, the motion for a default judgment is denied.
It is so ordered.