Supreme Court of Texas

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No. 23-0443

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Richard Wade, 

Petitioner, 

v.

Luiz Valdetaro and Vertical Computer Systems, Inc., 

Respondents

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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PER CURIAM

Defendant Richard Wade appeals a $21.6 million judgment 

rendered after a one-hour bench trial at which he appeared but 

presented no evidence. Wade alleges he was unprepared to defend 

himself because notice of the trial setting was sent to an incorrect 

address. A party who has appeared in a contested civil case has a 

constitutional right to notice of a trial. By rule, and absent an 

agreement otherwise, notice must be effected not less than 45 days 

before a first setting. That did not happen here. Having sufficiently 

informed the trial court about the service defect, Wade is entitled to a 

new trial.
2 

Wade is the former president, CEO, and director of Vertical 

Computer Systems, Inc. In April 2020, Vertical’s chief technical officer 

and several of its shareholders sued Wade and his co-director for breach 

of fiduciary duty and fraud. The original petition states Wade’s address 

for service of process as “3717 Cole Avenue, Apt. 293, Dallas, Texas 

75204.” (Emphasis added.) Confirming receipt of service at that 

address, Wade, through his trial counsel, timely filed an answer and a 

verified plea for abatement of the suit pending Vertical’s joinder as a 

necessary party. Attached to the plea is Wade’s unsworn declaration 

verifying his address as “3717 Cole Ave., Apt. 293, Dallas, Texas 75204.” 

(Emphasis added.)

About a year later, the plaintiffs’ claims against Wade were 

severed into a separate action, and the trial court ordered the parties to 

submit those claims to binding arbitration in accordance with Wade’s 

employment agreement. Shortly thereafter, in June 2021, Wade’s 

attorney filed a motion to withdraw. The motion stated that Wade had 

been notified by certified mail, regular mail, and email about the motion 

and his right to object. See TEX. R. CIV. P. 10. Unlike previous filings, 

however, the motion identified Wade’s “last known address” as “3717 

Cole Ave., Apt. 277, Dallas, Texas 75204”—same street address, 

different apartment number. (Emphasis added.)

While that motion was pending, the trial court notified the parties 

that the case was set to be dismissed for want of prosecution in August 

2021. See TEX. R. CIV. P. 165a. The dismissal notice stated that Wade 

had “No Known Address.” Days later, the trial court granted counsel’s 

motion to withdraw. Wade did not object to counsel’s withdrawal, and 

no attorney was substituted as counsel.
3 

The following month, the trial court removed the case from the 

dismissal docket and scheduled a bench trial for April 19, 2022. Notice 

of the trial setting was mailed to Wade on August 24, 2021, at the 

Apt. 277 address counsel’s motion to withdraw had listed as Wade’s “last 

known address” rather than the Apt. 293 address the plaintiffs had 

designated for service, which Wade had confirmed in his declaration.

Trial commenced by Zoom as scheduled on April 19. Wade 

appeared pro se but remained silent until the court asked if he wanted 

to cross-examine the plaintiffs’ second witness. Wade’s response led to 

the following exchange: 

THE COURT: Any cross-examination?

MR. WADE: Yes. This is Richard Wade.

THE COURT: Okay. 

MR. WADE: And unfortunately, I didn’t know about this— 

THE COURT: Mr. Wade, you’ve already talked to my court 

coordinator. You were responsible for keeping the Court 

notified of your change of address, and you haven’t done 

that. And so, you were provided notice of this trial, you did 

not attend. And so, I’m not sure what else to tell you. But 

we provided—under the Dallas County local rules, you 

should have called in last Thursday. We bent over 

backwards to provide you the Zoom link. If you have any 

questions, you can ask them now.

. . . .

THE COURT: Mr. Wade, did you want to ask any 

questions? 

MR. WADE: Not right now. 

Thereafter, the plaintiffs called just one more witness before resting. 

The court then invited Wade “to go ahead and make [his] presentation.” 

Wade offered a brief narrative response and an even briefer closing 

argument but no evidence. 
4 

Within an hour of commencing trial, the court announced: “I’ve 

already made a decision. I’m ruling in favor of the Plaintiff[s] on all of 

this.” The final judgment awarded the plaintiffs more than $21 million 

for breach of fiduciary duty, theft, embezzlement, and fraud.

Wade promptly filed a pro se notice of appeal, arguing that the 

trial notice was “sent to the wrong address” and that he did not receive 

notice “until the day the trial started . . . when [the clerk] emailed 

instructions on how to log into the trial ‘call.’” The court of appeals 

affirmed the multimillion-dollar judgment, ___ S.W.3d ___, 2023 WL 

3114671, at *1 (Tex. App.—Dallas Apr. 27, 2023), but we hold that 

proceeding to trial in derogation of Wade’s right to notice was reversible 

error. Failure to provide notice of a trial setting to a party who has 

appeared in the case “violates basic principles of due process,” 

warranting a new trial. E.g., Highsmith v. Highsmith, 587 S.W.3d 771, 

778 (Tex. 2019); In re K.M.L., 443 S.W.3d 101, 119 (Tex. 2014) (“[F]ailure 

to comply with the notice requirements in a contested case deprives a 

party of his constitutional right to be present at the hearing and to voice 

his objections in an appropriate manner[.]”); see TEX. R. CIV. P. 245 

(requiring “reasonable notice of not less than forty-five days” of a first 

trial setting for a contested case absent an agreement otherwise); 

B. Gregg Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419, 422 

(Tex. 2023) (“When parties are not afforded a meaningful opportunity to 

be heard, the remedy for denial of due process is due process.” (internal 

quotation marks and citation omitted)). 

Under Rule 21a, service of notice by mail is complete when a 

postpaid and “properly addressed” document is deposited in the mail. 

TEX. R. CIV. P. 21a(b)(1). Notice served in accordance with Rule 21a 

raises a presumption that notice was received, see TEX. R. CIV. P. 21a(e), 
5 

but “we cannot presume that notice was properly sent,” Mathis v. 

Lockwood, 166 S.W.3d 743, 745 (Tex. 2005).

Wade contends that he did not receive proper notice because the 

trial notice was not “properly addressed.” As Wade notes, notice of the

trial setting was mailed to an address provided by withdrawing counsel 

that differed from the address Wade had provided to the court. 

Furthermore, the clerk’s office had itself demonstrated confusion about 

Wade’s address by stating on the dismissal notice that he had “No 

Known Address.” When Wade first spoke at trial, he informed the court 

that he lacked adequate notice about the trial setting. The court 

interrupted Wade before he could articulate the specifics of his 

complaint, but the ensuing colloquy demonstrates the court’s 

understanding that Wade was challenging receipt of notice based on an 

incorrect address. The court rejected Wade’s complaint,1 citing a duty 

to notify the court clerk about any address changes. See TEX. CIV. PRAC.

& REM. CODE § 30.015 (requiring civil litigants to notify the clerk in 

writing if the party’s address changes and authorizing the court to 

“assess a fine of not more than $50” for noncompliance). The court might 

be right about the duty, but it was wrong about the consequence.

Even assuming such a duty, unless the failure to update an 

address “was intentional rather than a mistake, due process requires 

some lesser sanction than trial without notice or an opportunity to be 

heard.” Mathis, 166 S.W.3d at 746 (applying the Craddock standard 

and citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85-86 (1988));

1 Plaintiffs’ contention that Wade failed to preserve error is without 

merit. The trial transcript confirms the trial court knew the nature of Wade’s 

complaint and ruled against him. See TEX. R. APP. P. 33.1(a), (c).
6 

see B. Gregg Price, P.C., 661 S.W.3d at 424-25 (holding that the trial 

court erred in granting summary judgment when the defendant 

established that the failure to present a defense was due to lack of 

proper notice rather than intentional or consciously indifferent conduct). 

Whether Wade’s error is more aptly characterized as a failure to correct 

a mistake than a failure to provide an updated address makes little 

difference in the due-process inquiry. A new trial is necessary because 

there is no allegation that withdrawing counsel intentionally provided 

an incorrect address for his client, and nothing from which to infer intent 

or conscious disregard on Wade’s part in failing to notice, correct, or 

update the address. To the contrary, the record contains evidence of a 

reasonable explanation for Wade’s failure to monitor the suit: the trial 

court had previously ordered the parties to binding arbitration and, 

consistent with that order, counsel’s motion to withdraw informed Wade 

that there were no pending trial court deadlines. See In re Marriage of 

Sandoval, 619 S.W.3d 716, 721 (Tex. 2021) (“[T]he element of conscious 

indifference can be overcome by a reasonable explanation.”); In re R.R., 

209 S.W.3d 112, 115 (Tex. 2006) (noting that “some excuse” will 

generally suffice to show the defendant’s failure to answer was not 

conscious disregard).

As an alternative argument for affirmance, plaintiffs contend that 

Wade waived his right to notice by failing to move for a continuance. 

Although the constitutional right to due process is waivable, any such 

waiver must be voluntary, knowing, and intelligent. In re K.M.L., 443 

S.W.3d 101, 119 (Tex. 2014). That standard is not satisfied here. When 

Wade broached the subject of inadequate notice, the trial court cut him 

off, saying: “You were responsible for keeping the Court notified of your 

change of address,” and “I’m not sure what else to tell you.” Wade’s 
7 

failure to move for a continuance at that moment or elsewise during the 

exceedingly brief trial cannot fairly be characterized as a voluntary, 

knowing, and intelligent waiver. See id. at 120 (holding that a pro se 

father did not waive his right to notice of the trial setting in a parental 

termination suit “by sitting, under subpoena, through trial without any 

help from counsel and failing to formally move for continuance”).

Consistent with our strong and consistently articulated 

preference for adjudicating cases on the merits, we grant the petition for 

review and, without hearing oral argument, reverse the court of appeals’ 

judgment. See TEX. R. APP. P. 59.1. The case is remanded to the trial 

court for further proceedings consistent with this opinion.

OPINION DELIVERED: August 30, 2024