Rothenberger v. Kay
Cross-defendant James Kay appeals from an order denying his motion to set aside a judgment entered June 5, 2000, in favor of cross-complainant Floyd Rothenberger and Texas Bar-B-Que, Inc. (collectively Rothenberger). The judgment awarded Rothenberger $245,000 in compensatory damages and $185,000 in punitive damages.
After two years of litigation, Kay gave notice he was proceeding in propria persona and gave his address as a post office box where he could receive service of process. Documents subsequently sent to that address by the court and counsel were returned to the sender as undeliverable. Meanwhile the claims on the underlying complaint were settled and the case on Rothenbergers cross-complaint proceeded to trial in Kays absence after the trial court found sufficient proof Kay had been given notice of the trial date. Four and one-half years after judgment was entered, Rothenbergers assignee, respondent herein, recorded the judgment, which was mailed to Kays home address. A few months later, Kay filed a motion to set aside the judgment for failure to give notice of trial as required by Code of Civil Procedure section 594.[1]
On appeal, Kay contends the judgment against him must be set aside because he was not served with notice of trial, return of mail by the postal service does not excuse failure to give written notice of trial, the possibility that notice of trial was misfiled does not excuse its absence from the courts file, and a judgment for failure to comply with section 594 is void and can be set aside at any time.
Respondent makes no appearance on appeal. Nevertheless, after considering Kays contentions and reviewing the record, we find the trial court properly denied Kays motion because the judgment was voidable not void, the motion to set aside the judgment was filed five years after entry of judgment, and Kays absence from trial was due to his own inexcusable neglect in failing to provide the court and counsel with an address where he could be reached knowing the matter was nearing a trial date and never once contacted the court or counsel in the following five years to provide a change of address or inquire about the status of the case. Court therefore affirm the courts order denying Kays motion.
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