Erma J. Matthews v. Jerome Solomon C/O Epoch Films, Inc. Mindy Goldberg, and Others

Opinion

ACCEPTED 03-15-00474-CV 7969463 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/24/2015 12:02:30 PM November 24, 2015 JEFFREY D. KYLE No. 03-15-00474-CV CLERK

IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN

ERMA MATTHEWS Appellant

v.

JEROME SOLOMON C/O EPOCH FILMS, MINDY GOLDBERG & OTHERS Appellee

On Appeal In Case Number 423-3470 From the 423rd District Court of Bastrop County The Hon. Christopher D. Duggan, Judge Presiding

Brief on Appeal Submitted by:

Erma J. Matthews 25491 Beresford Drive South Riding, VA 20152 Tel. 571/933-8413 Fax: Same Table of Contents

Certificate of Parties.................................................................................................. ii

Index of Authorities ................................................................................................. iii

Preliminary Statement .............................................................................................. iv

Point of Error .......................................................................................................... vii

THE TRIAL COURT ERRED IN FAILING TO MAKE ENTRY OF DEFAULT and in NOT GRANTING APPELLANT’S MOTION FOR DEFAULT JUDGMENT pursuant to Federal Rules of Civil Procedure, Rule 55 Default; Default Judgment (Texas Rules of Civil Procedure (“Tex. R. Civ. P.”), Tex. R. Civ. P. 55(a) Judgment, and Bastrop General District Court Local Rule Request for Settings-Non-Jury 6.12). ............................... vii THE TRIAL COURT ERRED IN ALLOWING APPELLEE’S UNTIMELY RESPONSE and in GRANTING APPELLEE’S SUMMARY JUDGMENT MOTION APPROXIMATELY 9-MONTHS AFTER APPELLANT’S ORIGINAL PETITION WAS FILED, pursuant to Tex. R. Civ. P. 7. ............................................................................................................. vii

Statement of Facts ......................................................................................................1

Summary of the Argument.........................................................................................3

I. Argument ...........................................................................................................3 II. Argument .........................................................................................................4 III. Argument........................................................................................................6

Prayer .........................................................................................................................7

Certificate of Compliance ..........................................................................................8

Certificate of Service .................................................................................................8

Appendix ....................................................................................................................9

1. Final Summary Judgment dated July 23, 2015

i Certificate of Parties

Pursuant to Rule 38.1(a), Texas Rules of Appellate Procedure

(“Tex.R.App.P.”), Tex.R.App.P. 38.1(a), the following is a complete list of the

names and addresses, and emails (if known) of all parties to the trial court’s final

judgement and their counsel in the trial court, as well as appellate counsel, and so

the Clerk of the Court may properly notify the parties to the trial court’s final

judgment or their counsel, if any, of the judgment and all orders of the Court of

Appeals.

Appellant

Erma Matthews 25491 Beresford Drive South Riding, VA 20152

Appellant Counsel: Appellee Counsel:

Erma Matthews, Pro Se Noah Galton 25491 Beresford Drive Jackson Walker, LLP South Riding, VA 20152 100 Congress Avenue, Email: ermajmatthews@yahoo.com Suite 1100 Austin, TX 78701 Email: ngalton@jw.com

ii Index of Authorities

Cases: Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.—Houston [14th Dist.] 2005, no pet.) .........................................................................................................4 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985) ............4 Harris, N.A. v. Obregon, 2013 Tex. App. LEXIS 8655, 2013 WK 3524153 (Tex. App. Dallas July 11, 2013) ....................................................................................3 Holt Atherton Indus., Inc., v. Heine, 835 S.W.2d 80, 83, 35 Tex. Sup. Ct. J. 881 (Tex. 1992) .............................................................................................................5 Moroch v. Collins, 174 S.W.3d 849, 864-65 (Tex. App.—Dallas 2005, pet. denied) ................................................................................................................................4 Rules: Bastrop General District Court Local Rule Request for Settings-Non-Jury 6.12 .. vii Federal Rules of Civil Procedure, Rule 55 ............................................................. vii Tex.R.App.P. 38.1 ......................................................................................................1 Tex.R.App.P. 38.1(a) ................................................................................................ ii Tex.R.App.P. 38.1(d) ............................................................................................... iv Tex.R.App.P. 38.1(f)............................................................................................... vii Tex.R.App.P. 38.1(g) .................................................................................................1 Tex.R.App.P. 9.4(i)(3) ...............................................................................................8 Tex. R. Civ. P. 245 .....................................................................................................5 Tex. R. Civ. P. 243 ............................................................................................ 4, 5, 6 Tex. R. Civ. P. 239 .................................................................................................4, 5 Tex. R. Civ. P. 238 .....................................................................................................4 Tex. R. Civ. P. 55(a) ............................................................................................... vii Tex. R. Civ. P. 7 ...................................................................................................... vii

iii Preliminary Statement

Pursuant to Tex.R.App.P. 38.1(d), the following is a brief general statement of

the nature of the cause or offense.

This case involves a suit for damages brought by the Appellant on November

6, 2014, pursuant to a “Warrant In Debt” filed against Appellee EPOCH Films,

Mindy Goldberg and doe defendants for trespass to land-trespassing on private

property, implied contract, and unjust enrichment in the 423rd District Court of

Bastrop County, Texas (CR 7-20).

On January 20, 2015, Appellant motioned the Trial Court for (1) a non-

hearing motion, or (2) a non-jury hearing to place her case on Docket, per Texas

Rules of Civil Procedure Rule 27 and Local Rule 6.12, Request for Settings-Non-

Jury, to obtain a “Default Judgment” against Appellees, (CR 26-31). On February 5,

2015, the Trial Court denied Appellant’s motion (CR 32-37). On March 3, 2015, the

Trial Court issued a clarification order rescinding its order of February 5, 2015, and

denying Appellants request for a non-hearing motion, and granting Appellant’s

request for a non-jury hearing. The Trial Court further set the case for a status

hearing on April 9, 2015 (CR 38).

On March 18, 2015, Appellant filed a request with the Trial Court, asking that

the status conference be ruled upon as unnecessary, or in the alternative that she

should be allowed to appear telephonically at the status conference. On March 24,

2015, the Trial Court issued an order granting Appellant’s request for telephonic

iv appearance (CR 43).

On April 1, 2015, Appellant motioned the Trial Court to recuse Judge

Christopher D. Duggan (CR 49-53). On April 8, 2015, the Trial Court issued an

order refusing to voluntarily recuse itself from the case (RT 54). Also on April 8,

2015, the Trial Court issued an order cancelling the status hearing scheduled for

April 9, 2015 (CR 55). On April 13, 2015, the Second Administrative Judicial

Region of Texas (Olen Underwood, Presiding Judge) issued an order denying

Appellant’s motion for recusal (CR 56).

Appellant filed an amendment motion and notice of hearing with the Trial

Court on April 20, 2015, asking that the Appellees be charged with trespassing as of

the date of discovery (correction to date on “motion” it is stated as April 20, 2014,

but it should show May 20, 2014) (CR 57-58), a Motion and Notice of Hearing on

May 15, 2015, requesting a jury trial (CR 59-60) and a letter directed to the Second

Administrative Judicial Region of Texas regarding their decision to deny Appellant’s

motion for recusal (CR 51-62).

Appellees filed their original answer to Appellant’s complaint on June 2, 2015

(CR 63-68) and motion for summary judgment on June 20, 2015 (CR 69-90).

Appellant filed her own motion for summary judgement on July 20, 2015 (CR 122-

130).

Appellees filed an objection to Appellant’s motion for summary judgement on

July 20, 2015 (CR 132-150) and an objection and motion to strike Appellant’s

v summary judgment response and summary judgment evidence on July 21, 2015 (CR

153-169). Appellant filed an objection and opposition to Appellee’s motion to strike

and her own motion to strike Appellee’s summary judgment and summary evidence

on July 22, 2015 (CR 170-174).

On July 23, 2015, the Trial Court issued an order striking Appellant’s

summary judgment response and evidence (CR 188-190), and an order striking

Appellant’s affidavit (CR 191-192). Also on July 23, 2015, the Trial Court issued an

order of final summary judgment in favor of the Appellees (CR 193-194). Appellant

filed an objection to summary judgment order and final judgment order (CR 195-

197) and notice of appeal on July 27, 2015 (CR 198-199).

vi Point of Error

Pursuant to Tex.R.App.P. 38.1(f), the following are the points upon which this

appeal is predicated:

THE TRIAL COURT ERRED IN FAILING TO MAKE ENTRY OF DEFAULT and in NOT GRANTING APPELLANT’S MOTION FOR DEFAULT JUDGMENT pursuant to Federal Rules of Civil Procedure, Rule 55 Default; Default Judgment (Texas Rules of Civil Procedure (“Tex. R. Civ. P.”), Tex. R. Civ. P. 55(a) Judgment, and Bastrop General District Court Local Rule Request for Settings-Non-Jury 6.12).

THE TRIAL COURT ERRED IN ALLOWING APPELLEE’S UNTIMELY RESPONSE and in GRANTING APPELLEE’S SUMMARY JUDGMENT MOTION APPROXIMATELY 9- MONTHS AFTER APPELLANT’S ORIGINAL PETITION WAS FILED, pursuant to Tex. R. Civ. P. 7.

vii No. 03-15-00474-CV

IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN

ERMA MATTHEWS Appellant

v.

JEROME SOLOMON C/O EPOCH FILMS, INC., MINDY GOLDBERG & OTHERS Appellee

On Appeal In Case Number 423-3470 From the 423rd District Court of Bastrop County The Hon. Christopher D. Duggan, Judge Presiding

Brief on Appeal TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

COMES NOW, ERMA MATTHEWS Appellant in the above styled and

numbered cause, by and through Erma Matthews, Pro Se, and respectfully files this

“Brief on Appeal,” filed pursuant to Tex.R.App.P. 38.1, and would pursuant to

Tex.R.App.P. 38.1(g) show the Court as follows:

Statement of Facts

Appellant filed her original petition on November 6, 2014 (CR 7-20) and the

Appellees were served on November 25, 2014 (CR 25.) The time for the Appellees

to respond to the petition would have been no later than December 20, 2014. On

January 20, 2015, Appellant motioned the Trial Court for a non-jury hearing to

1 obtain a default judgment against Appellees (CR 26-31.) The Trial Court denied

Appellants motion on February 5, 2015 (CR 32-37), and then issued a clarification

order on March 3, 2015, and granted Appellants request for a non-jury hearing, but

scheduled a status conference for April 9, 2015 (CR 38.) Appellant filed a request

with the Trial Court on March 18, 2015, asking that the status conference be ruled as

unnecessary due to Appellees failure to respond, and in the alternative that she be

allowed to attend that status conference telephonically due to ill health and the fact

that she resided in the State of Virginia. On March 24, 2015, the Trial Court issued

an order granting Appellants request for telephonic appearance (CR 43.)

Appellant filed a motion for recusal on April 1, 2015, due to the failure of the

Trial Court to hear her motion for default judgment (CR 49-53.) On April 8, 2015,

the Trial Court issued orders cancelling the status conference set for April 9, 2015,

and denying the Appellant’s motion for recusal (CR 55-56.) Appellees filed their

original answer on June 2, 2015, to Appellant’s original petition of November 6,

2014 (CR 63-68), and for summary judgment on June 22, 2015 (CR 69-90.)

Appellant, in both her answer to Appellees summary judgment motion filed June 26,

2015 (CR 94-121), and her own motion for summary judgment filed on July 20,

2015 (CR 122-130), argued against Appellees untimely response to her original

petition, the time for which to respond had since expired on December 20, 2014. The

Trial Court issued orders on July 23, 2015, striking Appellant’s summary judgment

response and evidence (CR 188-190), as well as an affidavit filed by the Appellant

2 (CR 191-192), and issued a final order for summary judgment in favor of the

Appellees (CR 193-194.) Appellant filed an objection to summary judgment and

final judgment order (CR 195-197), and notice of appeal (CR 198-200) on July 27,

2015.

Summary of the Argument

The Trial Court abused its discretion in failing to enter a default against the

Appellees who failed to respond to Appellants original petition within the allotted

time, despite Appellants repeated requests to do so.

Additionally the Trial Court abused its discretion in failing to set for hearing

Appellants motion for non-jury trial to determine unliquidated damages and order of

default, and alternatively setting the unanswered and uncontested matter for a status

conference.

Finally, the Trial Court abused its discretion in allowing Appellees response to

Appellants original petition approximately 6-months after the time to answer had

expired, subsequently granting Appellees summary judgment motion, and issuing

final summary judgment in favor of Appellees.

I. Argument

Standard of Review

Harris, N.A. v. Obregon, 2013 Tex. App. LEXIS 8655, 2013 WK 3524153

(Tex. App. Dallas July 11, 2013). In its first issue, Harris argues the trial court erred

in failing to enter a default judgment in its favor and in refusing to set its May 10,

3 2010 motion for default judgment for hearing to allow for prove-up of liquidated

damages under rule 243 of the Texas Rules of Civil Procedure. We review the denial

of a default judgment for abuse of discretion. Aguilar v. Livingston, 154 S.W.3d 832,

833 (Tex. App.—Houston [14th Dist.] 2005, no pet.). "With respect to factual

matters, a trial court abuses its discretion if, under the record, it reasonably could

have reached only one decision and it failed to do so. However, because a trial court

has no discretion in determining what the law is or applying the law to the facts, a

clear failure by the trial court to analyze or apply the law correctly will constitute an

abuse of discretion." Moroch v. Collins, 174 S.W.3d 849, 864-65 (Tex. App.—

Dallas 2005, pet. denied) (citations omitted). "Another way of stating the test is

whether the act was arbitrary or unreasonable." Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 242 (Tex. 1985).

II. Argument

In the instant case, Appellant filed her original petition on November 6, 2014

(CR 7-20) and the time set for Appellees to answer was no later than December 20,

2014. Appellees did not answer Appellant’s petition until June 2, 2015 (CR 63-68.)

Pursuant to Tex. R. Civ. P. 238, Tex. R. Civ. P. 239, the court may grant a default

judgment upon request if no answer is on file and the citation has been on file with

the clerk for ten days. Appellant made repeated requests to the clerk of the court for

entry of default, all of which were ignored. There is no requirement to file a written

motion in order to secure a default judgment.

4 Appellant motioned the trial court for a non-jury hearing for the determination

of unliquidated damages prior to summary judgment on January 20, 2015 (CR 26-

31.) The trial court denied Appellant’s motion for hearing and later issued a

clarification order setting the matter for a status conference on April 9, 2015. At the

time the trial court issued its clarification order on March 3, 2015 (CR 38), the

Appellees were approximately 73-days passed their allotted time to respond to

Appellant’s original petition, and still had not responded. The trial court abused its

discretion in scheduling a status-conference for an unanswered, uncontested petition,

in lieu of setting a hearing on unliquidated damages and default pursuant to

Appellants motion. Tex. R. Civ. P. 245 provides that non-contested cases, i.e., cases

in which no answer has been filed, may be tried or disposed of at any time whether

set or not, and may be set at any time for any other time.

Standard of Review

When a default judgment is taken against a non-answering defendant on an

unliquidated claim, all allegations of fact contained in the petition are deemed

admitted, except for the amount of damages. Holt Atherton Indus., Inc., v. Heine,

835 S.W.2d 80, 83, 35 Tex. Sup. Ct. J. 881 (Tex. 1992). Accordingly, the trial court

must hear evidence on any such damages. See Tex. R. Civ. P. 243.

Generally, a plaintiff may take a default judgment against a defendant who

fails to file an answer. Tex. R. Civ. P. 239. After a defendant is served with the

citation and petition, the plaintiff has no legal duty to notify the defendant who has

5 not answered or otherwise appeared before taking a default judgment on the causes

of action asserted in the served petition.

III. Argument

The trial court erred in failing to enter a default in Appellants favor and in

refusing to set January 20, 2015 motion (CR 26-31) for default judgment hearing to

allow for prove-up of liquidated damages under rule 243 of the Texas Rules of Civil

Procedure, Tex. R. Civ. P. 243.

When Appellees finally responded with their initial answer to Appellant’s

petition, approximately 6-months after the time to respond had expired, the

allegations contained within Appellant’s petition should have been deemed admitted,

and the only issue remaining before the Trial Court should have been that of

determining un-liquidated damages. The Trail Court further erred and abused its

discretion in allowing Appellee’s motion for summary judgment and subsequently

granting summary judgment in favor of Appellees. At the summary judgment

hearing, the Appellant clearly called the Trial Courts attention to the aforementioned

(RT Vol. 3 of 3 14-14 thru 18-9), as well as in her objection to summary judgment

order and final judgment order (CR 195-197).

6 Prayer

WHEREFORE, PREMISES CONSIDERED, ERMA MATTHEWS,

Appellant in the above styled and numbered cause respectfully prays that this Court

grant her any and all relief to which she is entitled.

Respectfully submitted,

Erma J. Matthews Appellant 25491 Beresford Drive South Riding, VA 20152 Tel. 571/933-8413 Fax: Same

by: Erma J. Matthews Appellant

7 Certificate of Compliance

I hereby certify pursuant to Tex.R.App.P. 9.4(i)(3), the word count for this

document, as determined by the word processing program is 2,758 .

Erma J. Matthews

Certificate of Service

This is to certify that a true and correct copy of the above and foregoing

“Appellant’s Brief on Appeal” was electronically filed to the Third Court of Appeals

and Attorney for the Defendants, on November 23, 2015.

Noah Galton Jackson Walker, LLP 100 Congress Avenue Suite 1100 Austin, Texas 78701

Attorney for Appellee Jerome Solomon C/O EPOCH Films, Mindy Goldberg & Others

Erma J. Matthews

9 712312015 Sarah Loucks. District Clerk Bastrop County. Texas By: Sharon Schima'*. Deputy 1. Final Summary Judgment dated July 23, 2015 CAUSE NO. 423-3470

~ ERMA J. MATIHEWS C/0 THE MATTHEWS FAMILY § IN THE DJSTRICT COURT OF

vs. Plaintiff, I § § BASTROP COUNTY, TEXAS

JEROME SOLOMON C/0 EPOCH FILMS, § 4231\D JUDICIAL DISTRICT INC., MINDY GOLDBERG AND OTHERS

Defendants. I FINAL SUMMARY JUDGMENT

On July 23, 2015, the Court heard Defendants' Motion for Summary Judgment (the

"Motion"). The Court, after examining the pleadings timely filed, the Motion, and the summary

judgment evidence admitted for consideration,' determined that Defendants are entitled to

summary judgment as follows:

IT IS ORDERED that Plaintiff Erma J. Matthews c/o the Matthews Family ("Plaintiff')

take nothing against Defendants Jerome Solomon c/o Epoch Films, Inc., Mindy Goldberg, and

Others, that all claims asserted by Plaintiff are denied, and that all costs of court be taxed against

Plaintiff.

All relief requested in tllis case and not expressly granted is DENIED.

This judgment finally disposes of all parties and claims.

SIGNED this _2_3_rd_ _ __ __ day of _ _ -.-J_u•ly::-:=--- 20 15

UJl~f'. 1 Pursuant t·o this Coun•s Order on Defendants' Objection to and Motion to Strike Plaintiffs Summary Judgment Response and Summary Judgme.nt £vidence, this Court has separately sO'uck Plaintiffs Response and Defense to Defendants' Motion for Summary Judgment (the "Response..), including any and all exhibits auached thereto, as untimely. In addition to striking the Response and any and all exhibits attached thereto as untimely, 1his Coun has also struck Exhibits A. B. C, 0, E, Fand G to Plaintirrs Response as inadmissible.

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10 APPROVED AS TO SUBSTANCE AND FORM

JACKSON WALKER L.L.P.

By: is/ Noah M. Gal tog Robert P. Latham. State Bar No. t t 975500 Noah M. Galton · State Bar No. 24078531

100 Congress Avenue, Suite I 100 Austin, Texas 78701 (512) 236· 2000 (512) 236-2002 - Fax Email: ngalton@jw.com

ATTORNEYSFOR JEROMESOLOMON AND MINDY GOLDBERG

14109429v.l 14 1486100003