Mark A. Gonzalez v. Remae, Inc.

• Court: Court of Appeals of Texas
• Decided: January 19, 2017
• Docket: 09-15-00023-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-15-00023-CV _________________

MARK A. GONZALEZ, Appellant

V.

REMAE, INC., Appellee ________________________________________________________________________

On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 14-07-08062-CV ________________________________________________________________________

MEMORANDUM OPINION

Appellant Mark A. Gonzalez, pro se, appeals from a no-answer default

judgment rendered against him and in favor of Remae, Inc. Gonzalez, who was

also pro se in the trial court, raises various challenges to the judgment. We affirm

the trial court’s judgment.

I. Background

According to the evidence in the appellate record, on March 31, 2008, M &

T Gonzalez Family Limited Partnership (“M & T”) and Lil’ Texans Learning 1 Center, L.L.C. (“Lil’ Texans”) entered into a promissory note with Reliance Bank

for the principal amount of $1,226,000 (the “Note”). The Note was executed by

Gonzalez as a manager for both M & T and Lil’ Texans. Tammy Gonzalez also

executed the Note as a manager of M & T. The Note was secured by a first lien

deed of trust against property located in Galveston County, Texas. Gonzalez also

executed a Guaranty Agreement wherein he gave Reliance Bank a personal

guarantee of all obligations under the Note and deed of trust1. The Guaranty

Agreement recited that the guarantors’ obligations were joint and several and the

lender was not obligated to proceed against the borrower on the Note before

seeking to enforce payment by a guarantor. The sworn affidavit of Remae’s

attorney alleged that on January 25, 2013, Reliance Bank assigned the Note, the

deed of trust, and the Guaranty Agreement to Remae, Inc. (“Remae”).

Ultimately, Remae filed suit against Gonzalez on July 24, 2014, for

defaulting on the Guaranty Agreement. Remae alleged that at some point, M & T

and Lil’ Texans, the principal obligors on the Note, defaulted in paying the Note

and that on March 5, 2013, Remae foreclosed on the Note under the deed of trust.

According to Remae, after applying the proceeds from the foreclosure sale of the

1 The Note also recited that Tammy Gonzalez executed a personal guarantee. The record does not include a copy of her personal guarantee and she is not a party to this appeal. 2 Galveston property, a principal deficiency amount remained and was due and

owing on the Note. Remae alleged that it made demand on Gonzalez, as guarantor

of the Note, for the deficiency amount and interest, but Gonzalez failed to pay the

debt. The record includes a return of service stating that Gonzalez was properly

served with personal service on August 15, 2014, and the return of service was

filed August 29, 2014.

On November 20, 2014, Remae filed a motion for entry of default judgment

alleging that Gonzalez had not filed an answer or otherwise appeared in the suit

despite having been duly served. Remae’s motion was supported by affidavit,

which included a business records affidavit submitting an executed copy of the

Note, the Guaranty Agreement, and other documentation evidencing the debt owed

to Remae. The motion was also supported by a certificate of last known address for

Gonzalez, an affidavit supporting attorney’s fees, and a non-military affidavit. On

December 17, 2014, the trial court granted default judgment against Gonzalez. On

January 14, 2015, Gonzalez filed a notice of appeal. On January 16, 2015,

Gonzalez filed a motion for new trial. We note that in his appellate brief, Gonzalez

complains that the trial court did not rule on his motion for new trial. However,

Gonzalez’s motion for new trial was overruled by operation of law. See Tex. R.

Civ. P. 329b(c) (providing that when a motion for new trial “is not determined by

3 written order signed within seventy-five days after the judgment was signed, it

shall be considered overruled by operation of law on expiration of that period”).

II. Appellate Requirements

“Initially, we must note that a pro se litigant is held to the same standards as

licensed attorneys and must comply with applicable laws and rules of procedure.”

Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet.

denied); In re Office of Attorney Gen. of Tex., 193 S.W.3d 690, 693–94 (Tex.

App.—Beaumont 2006, no pet.); see also Mansfield State Bank v. Cohn, 573

S.W.2d 181, 184–85 (Tex. 1978) (“There cannot be two sets of procedural rules,

one for litigants with counsel and the other for litigants representing themselves.”).

The pro se appellant must also properly present its case on appeal, as at trial.

Strange, 126 S.W.3d at 677.

While appellate courts should reach the merits of an appeal whenever

reasonably possible and construe a pro se litigant’s brief liberally, the rules of

appellate procedure require 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); see also Sterner v. Marathon Oil Co., 767

S.W.2d 686, 690 (Tex. 1989). An issue unsupported by argument or citation to any

legal authority presents nothing for the court to review. Plummer v. Reeves, 93

4 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet. denied); see also Birnbaum v.

Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 477 (Tex. App.—Dallas

2003, pet. denied). “[The parties] must put forth some specific argument and

analysis showing that the record and the law support[] their contentions.” San Saba

Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.]

2005, no pet.). “An appellate court has no duty to perform an independent review

of the record and applicable law to determine whether the error complained of

occurred.” Strange, 126 S.W.3d at 678.

III. Jurisdiction and Venue Issues

In his motion for new trial and on appeal, Gonzalez contends “Galveston

County has jurisdiction over this Petition[]” and that “[t]here is no evidence to

support that Montgomery County has jurisdiction[.]” In his appellate brief,

Gonzalez does not cite to relevant legal authority, attempt to apply relevant

authority to the facts of this appeal, or cite to the appellate record.

In his appellate brief, Gonzalez appears to confuse the concepts of venue and

jurisdiction. The question of venue involves “where a suit may be brought and is a

different question from whether the court has jurisdiction of the property or thing

in controversy.” Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (internal quotes omitted). In its petition, Remae alleged that

5 Gonzalez may be served by personal service within the State of Texas and that the

“subject matter in controversy is within the jurisdictional limits” of the district

court. Remae further alleged that venue was proper in Montgomery County

because Gonzalez “contractually agreed to the jurisdiction and venue in

[Montgomery County]”. In support of its claims, Remae submitted a copy of the

Guaranty Agreement. The Guaranty Agreement contains a forum-selection clause

that provides in pertinent part: “THE GUARANTORS HEREBY

IRREVOCABLY SUBMIT TO THE JURISDICTION OF ALL THE STATE

AND LOCAL COURTS OF MONTGOMERY COUNTY, TEXAS, AND OF

THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS. . . .” Gonzalez’s signature appears on the Guaranty Agreement, which

was acknowledged by a notary.

A forum-selection clause is essentially a contractual agreement whereby the

parties agree in advance to submit their disputes for resolution within a particular

jurisdiction. RSR Corp. v. Siegmund, 309 S.W.3d 686, 700 (Tex. App.—Dallas

2010, no pet.). “Forum-selection clauses are generally enforceable and

presumptively valid.” In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig.

proceeding) (per curiam). The party seeking to show the clause should not be

enforced bears a heavy burden to clearly show “‘(1) enforcement would be

6 unreasonable or unjust, (2) the clause is invalid for reasons of fraud or

overreaching, (3) enforcement would contravene a strong public policy of the

forum where the suit was brought, or (4) the selected forum would be seriously

inconvenient for trial.” Id. (quoting In re ADM Inv’r Servs., Inc., 304 S.W.3d 371,

375 (Tex. 2010) (orig. proceeding)).

Here, Remae’s claims are based on the Guaranty Agreement, which included

a forum-selection clause that provided for jurisdiction and venue in Montgomery

County, Texas. Gonzalez has provided no argument or citations to authority or to

the record to show why the forum-selection clause of the agreement should not be

interpreted and enforced as Remae contends.

Remae further pleaded that the subject matter in controversy is within the

jurisdictional limits of the district court. See Tex. Const. art. V, § 8. Gonzalez

maintains that jurisdiction would be proper in the district court in Galveston

County, and he does not specifically contest subject matter jurisdiction. To the

extent Gonzalez’s brief could be construed as including a challenge to personal

jurisdiction, we note that Gonzalez did not file a special appearance. See Tex. R.

Civ. P. 120a. In the trial court, Gonzalez filed a motion for new trial, which was

also not made subject to a special appearance. See Global Paragon Dallas, LLC v.

SBM Realty, LLC, 448 S.W.3d 607, 612 (Tex. App.—Houston [14th Dist.] 2014, no

7 pet.) (stating that a defendant who wishes to challenge personal jurisdiction after

default judgment has been rendered should file a special appearance and then a

motion for new trial subject to his special appearance); cf. Puri v. Mansukhani, 973

S.W.2d 701, 707 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (holding that

defendant did not enter a general appearance and preserved his special appearance

by making his motion for new trial strictly subject to his special appearance). Here,

by filing the motion for new trial without having previously filed a special

appearance, Gonzalez made a general appearance in the case. See Moore v.

Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex. App.—El Paso 1994,

writ denied) (“A party enters a general appearance whenever it invokes the

judgment of the court on any question other than the court’s jurisdiction; if a

defendant’s act recognizes that an action is properly pending or seeks affirmative

action from the court, that is a general appearance.”). Thus, Gonzalez waived any

challenge to personal jurisdiction.

To the extent, if any, that Gonzalez challenges venue, we note that our

review of the appellate record reflects that Gonzalez did not file a motion to

transfer venue with the trial court. Generally, venue may be proper in many

different counties and plaintiffs are given the right to choose where to file their

case. Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994).

8 When a defendant does not properly challenge venue, then venue is fixed in the

county in which the plaintiff filed suit. Id. To object to venue, the movant must file

a written motion to transfer prior to or concurrently with any other plea, pleading,

or motion; otherwise the objection to venue is waived. Tex. R. Civ. P. 86(1).

Remae brought the lawsuit in Montgomery County and asserted the forum-

selection clause in the guaranty agreement to support venue in Montgomery

County. The burden of proof is not on the party seeking to enforce a forum-

selection clause, but on the party challenging the clause to defeat venue in that

county. In re AIU Ins. Co., 148 S.W.3d 109, 113 (Tex. 2004).

Here, Gonzalez did not file a proper motion seeking to transfer venue or

challenge the forum-selection clause by one of the methods a party can use to

challenge a forum-selection clause as established by the Texas Supreme Court in

In re Lyon Fin. Servs., Inc. 257 S.W.3d 228, 231–32 (Tex. 2008). We conclude

that Gonzalez waived any challenge to proper venue of the lawsuit. Therefore, we

overrule Gonzalez’s challenge to jurisdiction and venue.

IV. Default Judgment

We liberally interpret Gonzalez’s brief as arguing the trial court abused its

discretion in denying his motion for new trial. To set aside a default judgment, a

defendant generally must establish the three elements presented in Craddock v.

9 Sunshine Bus Lines: “(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 of Tex., Inc. v.

Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (citing Craddock v. Sunshine Bus Lines,

Inc., 133 S.W.2d 124, 126 (Tex. 1939)). When a defaulting party meets all three

elements, then a trial court abuses its discretion if it fails to grant a new trial. Id. at

926.

On appeal, Gonzalez does not specifically assert that he met the Craddock

elements; rather, he contends that he did not receive notice that this case was set by

the trial court for default judgment by submission on December 3, 2014.

“However, after a defendant is served with the citation and petition, the plaintiff

has no legal duty to notify the defendant before taking a default judgment on the

causes of action asserted in the served petition.” Cont’l Carbon Co. v. Sea-Land

Serv., Inc., 27 S.W.3d 184, 188 (Tex. App.—Dallas 2000, pet. denied). Gonzalez

does not deny that he was properly served with citation and the record includes a

copy of the return of service, which indicates that Gonzalez was personally served

with citation and the petition. Accordingly, Remae was not required to notify

Gonzalez before taking a default judgment. See id. However, even if Remae was

10 required to notify Gonzalez of the hearing, there is evidence in the record that

Remae mailed Gonzalez notice of the submission of the default judgment to his

last known address via certified mail return receipt requested.

Construing his brief liberally, Gonzalez argues that he did not enter into a

contract with Remae, and the default amount is subject to review. He also asserts

that “[a] divorce with Spouse awarded Spouse full control of the property/business

decisions[,]” without further argument, explanation, citation to authority, or

citation to the record. He made these same arguments to the trial court in support

of his motion for new trial. However, Gonzalez does not cite to the record, and we

find no evidence or affidavits in the record to support his contentions. See Estate of

Pollack v. McMurrey, 858 S.W.2d 388, 392 (Tex. 1993) (quoting Ivy v. Carrell,

407 S.W.2d 212, 214 (Tex. 1966) (explaining that establishing a meritorious

defense under Craddock requires not only alleging facts that constitute a defense to

the cause of action asserted by plaintiff but also supporting those facts by affidavits

or other evidence proving prima facie that the defendant has a meritorious

defense); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992)

(explaining that conclusory allegations are insufficient to satisfy the Craddock

test). We conclude that Gonzalez failed to satisfy the meritorious defense element

of the Craddock test. However, not only are Gonzalez’s conclusory statements

11 insufficient to show that he had a meritorious defense under Craddock, but

Gonzalez also failed to satisfy the other two elements of Craddock in that he did

not show that his failure to appear was not intentional or the result of conscious

indifference, but was the result of an accident or mistake or that granting his

motion for new trial would not cause delay or otherwise injure Remae. See

Craddock, 133 S.W.2d at 126. The trial court did not err in overruling Gonzalez’s

motion for new trial.

To the extent Gonzalez’s remaining arguments could be construed as a

challenge to the sufficiency of the evidence to support the judgment, it is well

settled that “[i]n 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.” Hankston v. Equable Ascent Fin., 382 S.W.3d 631, 633 (Tex. App.—

Beaumont 2012, no pet.). The defaulting defendant admits all facts properly pled in

the plaintiff’s petition except for the amount of unliquidated damages. Morgan v.

Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984). A claim is liquidated if

the trial court can accurately calculate the amount of damages from the factual, as

opposed to the conclusory allegations in plaintiff’s petition and the instrument in

writing. Aavid Thermal Techs. of Tex. v. Irving Indep. Sch. Dist., 68 S.W.3d 707,

711 (Tex. App.—Dallas, no pet.). Here, the trial court could calculate the amount

12 of damages from Gonzalez’s failure to pay under the Guaranty Agreement from

the documents produced in the trial court. Gonzalez did not specifically challenge

the amount or award of attorney’s fees and merely argued that the amount of

damages was “subject to review.” Moreover, testimony of the total amount due on

an unliquidated damages claim may be supplied by affidavit. See Sherman

Acquisition II LP v. Garcia, 229 S.W.3d 802, 811 (Tex. App.—Waco 2007, no

pet.). Remae’s motion for entry of default judgment was supported by an affidavit

detailing the total amount owed. For all these reasons, we overrule Gonzalez’s

remaining issues.

Because we have overruled Gonzalez’s issues on appeal, we affirm the

judgment of the trial court.

AFFIRMED.

______________________________ CHARLES KREGER Justice

Submitted on May 18, 2016 Opinion Delivered January 19, 2017

Before McKeithen, C.J., Kreger and Horton, JJ.