Hankston v. Equable Ascent Financial

382 S.W.3d 631, 2012 WL 4666916, 2012 Tex. App. LEXIS 8305
CourtCourt of Appeals of Texas
DecidedOctober 4, 2012
DocketNo. 09-12-00049-CV
StatusPublished
Cited by3 cases

This text of 382 S.W.3d 631 (Hankston v. Equable Ascent Financial) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hankston v. Equable Ascent Financial, 382 S.W.3d 631, 2012 WL 4666916, 2012 Tex. App. LEXIS 8305 (Tex. Ct. App. 2012).

Opinion

OPINION

DAVID GAULTNEY, Justice.

In this appeal from a default judgment, Charles Hankston argues in part that he was wrongfully accused of not paying a bill that is not his. He explains he did not sign for the account, he was never in the store, he did not receive anything for the account, and he is not liable for the account. Hankston’s answers to requests for admissions, filed after the default judgment as part of his notice of appeal, explain that Hankston had no knowledge an account had been opened, that the statements first started coming in Patricia Spears’s name, but then his name was added, and that he informed “plaintiffs predecessor” about the dispute “several times[,]” and was informed by “[pjlain-tiffi’s] agents” “that the card was in Patricia Spears [njame and not [his].” The statements stopped coming, and so Hank-ston thought that the matter was resolved.

In its brief, appellee asserts that appellant obtained a credit card from GE Money Bank, and that GE Money Bank sold the account to appellee. Appellee argues that, as assignee of the account, it “is entitled to the damages sought herein.”

The appellate rules instruct that “briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case[.]” Tex.R.App. P. 38.9. The briefing rules are to be construed liberally. See Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex.1998). Appellant’s brief and notice of appeal assert, in effect, that no valid cause of action was alleged against him. Appellee responds that it may sue under breach of [633]*633contract, “[o]pen and [a]ccount [s]tated [t]heory,” and quantum meruit.1

In an appeal from a default judgment, an appellate court does not conduct a review of the sufficiency of the evidence to support a defendant’s liability. See Texaco, Inc. v. Phan, 137 S.W.3d 763, 770 (Tex.App.-Houston [1st Dist.] 2004, no pet.). But a default judgment must be supported by a petition that states a cause of action against the defendant. Fairdale Ltd. v. Sellers, 651 S.W.2d 725 (Tex.1982); Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58, 60 (1952). A court cannot “read into the petition a claim that it does not contain.” San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 336 (Tex.App.Houston [14th Dist.] 2005, no pet.) (summary judgment appeal). The pleading must give fair notice of the relief sought. Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979).

The rule of procedure providing that pleading defects in form and substance can be waived does “not apply as to any party against whom default judgment is rendered.” Tex.R. Civ. P. 90. Similarly, “[t]he procedure regarding an affidavit to support a default judgment has always been most exacting[.]” Griswold, 249 S.W.2d at 60-61(eiting Rule 90, and reversing a default judgment because the supporting affidavit did not meet the requirements of Rule 185).

In Fairdale, the plaintiff sued two defendants over the sale of a townhome, and obtained a default judgment against Fair-dale Limited. See Fairdale Ltd. v. Sellers, 640 S.W.2d 627, 628 (Tex.App.-Houston [14th Dist.] 1982), rev’d, 651 S.W.2d 725 (Tex.1982). Holding that the petition was sufficient and provided Fairdale with fair notice, the court of appeals affirmed the judgment. Fairdale, 640 S.W.2d at 628-29. In reversing the default judgment, the Supreme Court explained as follows:

Although the petition states a copy of the sales contract is attached, it was not attached.... In fact, there is no allegation in the petition of any duty owed by Fairdale to Sellers or an allegation of a breach of any duty. Therefore, the petition does not state a cause of action against Fairdale and the default judgment cannot stand.

Fairdale, 651 S.W.2d at 726. In a footnote, the Court quoted Rule 90, the waiver-of-defects-in-pleadings rule, which provides that the rule does not apply to a party against whom default judgment is rendered.

In this case appellee, claiming to be the current owner of an indebtedness, sued two defendants. The pleading references supporting “attached documentation!,]” but neither the underlying contract nor an assignment is attached to the petition. What is attached does not reference an assignment but rather seems to describe the appellee’s own account. See Cecil v. Hydorn, 725 S.W.2d 781, 782 (Tex.App.San Antonio 1987, no writ) (When an obligation alleged in a pleading does not conform to the exhibit attached as the basis of the obligation, the document rather than the pleading controls.). Neither the petition nor any attached document names the original lender. The petition includes only an account number, but does not name the defendant who opened the account or signed the contract. See Lambert v. Dealers Elec. Supply, Inc., 629 S.W.2d 61, 63 (Tex.App.-Dallas 1981, writ ref'd n.r.e.) (op. on reh’g) (“[0]nly those matters alleged in the body of the petition are mat[634]*634ters upon which defendant is placed upon notice that plaintiff intends to prove upon trial.”). Appellant’s name is misspelled in the preamble, the only place in the petition other than the style where he is named, and the petition (filed in Orange County) does not provide the appellant’s residence (in Harris County), although that was known. See Tex.R. Civ. P. 79. The body of the pleading refers to only one defendant, though not by name, an allegation consistent with appellant’s argument that he did not sign the contract or open the account. See Lambert, 629 S.W.2d at 63. But appellee seeks to hold both defendants liable for the alleged amount.

In the petition, appellee also states: “However, this amount may not include any payments or credits occurring after the date of this petition or the date of the affidavit of [plaintiff’s representative.” The attached “affidavit” appears to be dated eleven months before the default judgment is signed, and refers to a single unnamed “defendant.” The affidavit is an apparent attempt to support a suit on account under Rule 185, but the affidavit does not state the “claim is, within the knowledge of affiant, just and true....” See Tex.R. Civ. P. 185; see also Griswold, 249 S.W.2d at 61 (reversing default judgment because affidavit did not meet the requirements of Rule 185). Although the affidavit uses the singular “defendant,” it does not state which defendant allegedly owes the debt. The petition contains no assertion that the account was “for goods, wares and merchandise," for material furnished, for personal services rendered, or for labor done or furnished. See Tex.R. Civ. P. 185; see also Hollingsworth v. Nw. Nat’l Ins. Co.,

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382 S.W.3d 631, 2012 WL 4666916, 2012 Tex. App. LEXIS 8305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hankston-v-equable-ascent-financial-texapp-2012.