MEMORANDUM
OPINION
On
November 1, 2008, Fractional Transportation, L.L.C., a Nevada limited liability
company owned by Joshua Smith, leased a building from I-30 Business Park, Ltd.,
to store equipment. After disputes
developed between the parties,[1]
Smith ceased paying rent on the building.
On May 8, 2009, the Business Park filed a forcible detainer action
against Smith, in his personal capacity, in a Hunt County justice court. The justice court authorized alternative
service by posting a notice at the leased facilities.[2]
A
no answer default judgment was taken against Smith in justice court. Smith, however, filed an appeal of the justice
court judgment to the Hunt County Court at Law No. 2. Smith filed, in the county court at law, an
answer, which included a counterclaim for filing a fraudulent affidavit, and a
motion to dismiss. On December 9, 2009,
Smith faxed a document titled “DEFENDANT’S NOTICE TO COURT” to the trial court
alleging he was “coming down with the flu” and requesting that the trial court
either reschedule the hearing or grant Smith’s motion to dismiss. This document was filed on December 10,
2009. On December 11, 2009, the trial
court signed a post-answer default[3]
final judgment awarding “lost rent and lost income in the amount of $13,325.00”
and $4,427.63 in attorneys’ fees to Michael B. Barnard.[4] Smith filed a motion for new trial on
December 15, 2009, which was overruled by operation of law on February 24,
2009.[5] See
Tex. R. Civ. P. 329b(c). After the first motion for new trial was
overruled by operation of law, but before the trial court’s plenary power
expired under Tex. R. Civ. P. 329b(e),
the trial court signed, on March 17, 2010, a reformed judgment awarding “back
rent of $6550.00 and attorney fees and court costs of $4,427.63.”[6] Smith timely filed another motion for new
trial, which was overruled by operation of law.[7] Smith filed a notice of appeal to this Court
on June 17, 2010.[8] After giving notice to the appellee, this
case was submitted without an appellee’s brief.
Although
Smith’s brief on appeal fails to contain an “issues presented” section listing
his issues or points of error, we have interpreted his brief as containing six
points of error. Smith complains (1) the
evidence is factually insufficient, (2) the service of process was defective, (3)
he could not be sued in his personal capacity, (4) the amount of damages
exceeded the jurisdictional limits of the court, (5) the trial court erred in
denying his motion for new trial because a trial de novo in county court
violated his constitutional rights, and (6) the trial court erred in denying
his motion for new trial because no notice of the trial setting was
provided. We affirm.
(1) Without
a Reporter’s Record, We Must Presume the Evidence Is Factually Sufficient
In
his first point of error, Smith complains that the evidence is factually
insufficient. Smith provides no argument
and cites no authority for this point of error.
This point of error could be overruled as inadequately briefed. Further, we note Smith failed to obtain a
reporter’s record for this appeal. If
the record is incomplete and the appellant has not complied with Tex. R. App. P. 34.6(c), the appellate
court must presume that the omitted evidence supports the judgment or order
from which the appeal is taken. In re Estate of Arrendell, 213 S.W.3d
496, 503 (Tex. App.––Texarkana 2006, no pet.); see Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002); Schafer v. Conner, 813 S.W.2d 154, 155
(Tex. 1991) (per curiam). Without a
reporter’s record, we must presume the missing record would contain evidence to
support the trial court’s rulings on factual sufficiency. Smith’s first point of error is overruled.
(2) Smith Waived Any
Service Defects by Appearing in the County Court at Law
In
his second point of error, Smith complains that the service of process was
defective. Smith alleges service was
only attempted at the storage unit and Business Park never attempted to serve
him at his private residence. Regardless
of whether Smith’s allegations are correct, Smith waived any defects in service
by appealing the judgment of the justice court and filing an answer. See
Tex. R. Civ. P. 120, 121; see also Baker v. Monsanto Co., 111
S.W.3d 158, 160 (Tex. 2003) (per curiam); Montgomery
v. Chase Home Fin., LLC, No. 05-08-00888-CV, 2009 Tex. App. LEXIS 7020
(Tex. App.––Dallas Sept. 2, 2009, no pet.) (mem. op.) (“An appeal bond operates
as an answer and appearance in a county court at law . . . .”). Smith’s second point of error is overruled.
(3) Smith Waived the Issue of
Capacity
In
his third point of error, Smith argues he signed the lease only in his official
capacity as a member of a limited liability company and the trial court erred
in granting judgment against Smith in his personal capacity.[9] In order to complain that he was not liable
in the capacity in which he was sued, Smith had the duty to raise that
affirmative defense in a verified pleading in accordance with Rule 93 of the
Texas Rules of Civil Procedure. See Tex.
R. Civ. P. 93; Sixth RMA Partners,
L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) (waived by failing to raise
in verified pleading at trial court); W.O.S.
Constr. Co. v. Hanyard, 684 S.W.2d 675, 676 (Tex. 1985) (per curiam); Butler v. Joseph’s Wine Shop, Inc., 633
S.W.2d 926, 929 (Tex. App.––Houston [14th Dist.] 1982, writ ref’d n.r.e.). Although Smith complained about the issue in
his answer and motion to dismiss, the record does not contain any verified
pleading complaining about capacity.
Absent a verified pleading raising the defense, only trial by consent
will prevent waiver of the issue of capacity.
RE/MAX of Tex., Inc. v. Katar Corp.,
961 S.W.2d 324, 328 (Tex. App.––Houston [1st Dist.] 1997), pet. denied, 989 S.W.2d 363 (Tex. 1999); see Au Pharm., Inc. v. Boston, 986 S.W.2d 331, 340 (Tex. App.––Texarkana
1999, no pet.). In the absence of a
reporter’s record, we must presume there is evidence in the record to support
the trial court’s judgment.[10] See
Arrendell, 213 S.W.3d at 503. Smith’s third point of error is overruled.
(4) Without
a Reporter’s Record, We Must Presume There Is Evidence to Support the Damage
Award
In
his fourth point of error, Smith complains there is no evidence to support the
$6,500.00 in damages and the $4,427.63 in attorneys’ fees awarded by the trial
court in its reformed judgment. Smith
alleges he owed only seven months of rent—$4,550.00. Smith argues that the reformed judgment
includes damages which exceed the amount of rent due and cites Krull v. Somoza, which holds “damage
claims related to maintaining or
obtaining possession of the premises may be joined” with the forcible detainer
action, but “damages for other causes of action . . . are not recoverable in a forcible entry and detainer action.” 879 S.W.2d 320, 322 (Tex. App.––Houston [14th
Dist.] 1994, writ denied). Without a
reporter’s record, we are unable to determine what evidence was presented to
the trial court concerning damages.[11] In the absence of a reporter’s record, we
must presume there is evidence in the record to support the trial court’s
judgment. See Arrendell, 213 S.W.3d
at 503.
Smith
also complains, in his fourth point of error, that the award exceeded the
jurisdictional limits of the court.
Smith argues that the jurisdictional limits of justice courts should
apply to this appeal. Smith, though, has
failed to provide this Court with any authority that a trial de novo of a
forcible detainer action in county court is limited to the jurisdictional
limits of the justice court. Because the
primary issue in a forcible detainer suit is possession and that issue provides
the court with jurisdiction, the Texas Supreme Court has held, under Rule 752, that
a party may recover the specified damages “regardless of the amount so long as
[the prevailing party] can prove such damages.” Haginas
v. Malbis Mem’l Found., 163 Tex. 274, 354 S.W.2d 368, 372 (1962). The
First District Court of Appeals has explained Haginas as follows:
In other words, in a trial de novo in a forcible-detainer proceeding on appeal in county court, a prevailing party may recover
the damages allowed by rule 752 even if the amount of those damages exceeds the
amount-in-controversy limit of the county court’s original jurisdiction.
Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434–35 (Tex. App.––Houston
[1st Dist.] 2007, no pet.). Smith’s
fourth point of error is overruled.
(5) Whether
the Trial De Novo Violated Smith’s Constitutional Rights Is Inadequately
Briefed
In
his fifth point of error,[12]
Smith argues the trial court erred in denying his motion for new trial because “a
trial de novo violated Defendant’s federal and state constitutional rights.” Smith fails to provide this Court with any
authority for the argument that the trial de novo—the normal procedure for an
appeal of a forcible detainer from a justice court which is not a court of
record—violated his federal and state constitutional rights. The law is well settled that “[a] party
proceeding pro se must comply with all applicable procedural rules” and is held
to the same standards as a licensed attorney.
Weaver v. E-Z Mart Stores, Inc.,
942 S.W.2d 167, 169 (Tex. App.––Texarkana 1997, no pet.). We review and evaluate pro se pleadings with
liberality and patience, but otherwise apply the same standards applicable to
pleadings drafted by lawyers. Foster v.
Williams, 74 S.W.3d 200, 202 n.1 (Tex. App.––Texarkana 2002, pet.
denied). The Texas Rules of Appellate
Procedure require an appellant’s brief to contain “a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the
record.” Tex. R. App. P. 38.1(i). Smith’s complaint that the trial de novo
violated his constitutional rights is overruled as inadequately briefed.
(6) The Trial Court Did Not
Err in Denying Smith’s Motion for New Trial
In
his fifth and sixth points of error, Smith argues that the trial court erred in
denying his motion for new trial because “there never was an [o]rder setting
trial in this case” and because he never received notice of the trial
setting. Smith alleges that he never
received notice of a trial date in violation of his right to due process.[13] In his motion for new trial filed after the
trial court reformed the judgment, Smith complains that he failed to receive
notice of the trial setting.
The
Texas Supreme Court has held the standards announced in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d
124, 126 (1939), apply to post-answer default judgments. Dolgencorp
of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (per curiam); Lopez v. Lopez, 757 S.W.2d 721, 722
(Tex. 1988) (per curiam). A default
judgment should be vacated and a new trial granted when the defaulting party
establishes:
(1) the failure to appear was not intentional or
the result of conscious indifference, but was the result of an accident or
mistake, (2) the motion for new trial sets up a meritorious defense, and (3)
granting the motion will occasion no delay or otherwise injure the
plaintiff.
Dolgencorp, 288 S.W.3d at 926; Craddock, 133 S.W.2d at 126. When a defendant did not receive actual or
constructive notice of trial, due process prevents application of the second
and third prongs of the Craddock
test. See Lopez, 757 S.W.2d at 722;
In re Parker, 20 S.W.3d 812, 817
(Tex. App.––Texarkana 2000, no pet.).
Due process requires that a party to a lawsuit receive reasonable notice
of a trial setting. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988); In re Marriage of Parker, 20 S.W.3d
812, 818 (Tex. App.––Texarkana 2000, no pet.). A judgment that is entered without proper
notice to the parties is constitutionally infirm. Peralta,
485 U.S. at 84.
The
record in this case does not affirmatively show Smith failed to receive notice.[14] We presume a trial court will hear a case
only after the parties have received proper notice.[15] Blanco
v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.––El Paso 2000, no pet.); Jones v. Tex. Dep’t of Public Safety,
803 S.W.2d 760, 761 (Tex. App.––Houston [14th Dist.] 1991, no writ). “To overcome this presumption, an appellant
must affirmatively show a lack of notice.”
Blanco, 20 S.W.3d at 811. We note that Smith failed to file any
supporting affidavits to either motion for new trial asserting that he failed
to receive notice of the trial setting. Tex. R. Civ. P. 567. The record does contain a document titled “DEFENDANT’S
NOTICE TO COURT” filed on December 10, 2009, which alleges Smith was “coming
down with the flu” and requested that the trial court either reschedule the
hearing or grant Smith’s motion to dismiss.[16] This document indicates Smith was aware a
hearing was scheduled for December 10, 2010.
Smith states in his first motion for new trial that “[o]n October 12,
2009 the Defendant contacted the court administrator and had the hearing rescheduled
for December 10, 2009, due to health issues.”
Although his first motion for new trial had already been overruled as a
matter of law, the trial court held a hearing on March 4, 2010, on the first
motion for new trial. The trial court
still had plenary power over the case. Tex. R. Civ. P. 329b(e). In its order of March 17, 2010, denying the
motion, the trial court states:
2. The Court had set this matter for trial on October 12, 2009,
but that setting was put off because of Defendant’s telephone call that he was
preparing for major surgery. At
Defendant’s request, the case was reset until December 10, 2009.
3. On December 8, 2009, Defendant Smith again called the court
and wanted to reset the trial but was advised he would have to get consent from
the Plaintiff. The Defendant filed no
motion for continuance nor did he appear on December 10, 2009 for trial.
The record does not contain a
reporter’s record from the March 4, 2010, hearing. Without a complete record, we must presume
the missing portions of the record would support the trial court’s
decision. See Arrendell, 213 S.W.3d
at 503. Smith’s complaint that he did
not receive notice of the trial setting in violation of his right to due
process is overruled.
Assuming
without deciding that Smith’s allegation he was ill was sufficient to meet the
first prong of the Craddock test,
Smith has made no effort to establish the second or third prongs of the
test. Smith has failed to establish his
motion for new trial should have been granted under the Craddock test. The trial
court did not err in denying Smith’s motion for new trial.
For the reasons stated, we affirm
the judgment of the trial court.
Jack
Carter
Justice
Date Submitted: November 18, 2010
Date Decided: December 1, 2010