Mitchell M. Carter A/K/A Mitchell Meshall Carter D/B/A Prodex, Yolanda Carter A/K/A Yolanda Renee Carter, and Prodex Creative Floors, Inc. v. Houston Business Development, Inc.

• Court: Court of Appeals of Texas
• Decided: February 25, 2014
• Docket: 01-13-00309-CV
• Status: Published

Opinion

Opinion issued February 25, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00309-CV ——————————— MITCHELL M. CARTER A/K/A MITCHELL MESHALL CARTER D/B/A PRODEX, YOLANDA CARTER A/K/A YOLANDA RENEE CARTER, AND PRODEX CREATIVE FLOORS, INC., Appellants V. HOUSTON BUSINESS DEVELOPMENT, INC., Appellee

On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Case No. 1003931

MEMORANDUM OPINION

This appeal arises from a suit on a promissory note. Appellants Mitchell M.

Carter, Yolanda Carter, and Prodex Creative Floors, Inc. appeal a post-answer default judgment entered in favor of appellee Houston Business Development, Inc.

(HBD). We affirm.

Background

Appellants borrowed money from HBD to open a business. Claiming that

the borrowers had breached the terms of the promissory note, HBD sued to recover

the accelerated amount due.

Appellants requested a jury trial and paid the jury fee. HBD filed an

objection to appellants’ jury request. It argued that appellants had waived their

right to jury trial and agreed that disputes would be decided by bench trial in the

“Deed of Trust and Security Agreement” collateralizing the promissory note.

Appellants did not respond to the motion. While the trial court initially set the case

for jury trial, it later entered an order moving the case to the non-jury docket and

setting a different, earlier trial date.

On the day of trial, HBD appeared, but appellants did not. HBD moved for a

default judgment, which the court granted. Appellants subsequently filed a motion

titled “Motion to Set Aside Default on Submission Entry.” They alleged that they

had not received notice of the removal of the case from the jury trial docket or the

changed date of trial on the non-jury docket. They neither verified the allegations

in their motion nor offered evidence to show that they had not received notice of

2 the trial setting. The court denied their motion and entered judgment in favor of

HBD.

Appellants timely filed a motion for new trial and notice of appeal. The

motion for new trial was unverified and unaccompanied by evidence. The record

does not contain a ruling on this motion, which was overruled by operation of law.

See TEX. R. CIV. P. 329b(c).

Analysis

Appellants argue that the trial court abused its discretion by transferring the

case from the jury docket to the non-jury docket. They further contend that the trial

court abused its discretion by refusing to set aside the default judgment.

On August 31, 2012, appellants requested a jury trial and paid the jury fee.

HBD filed an objection on October 13, 2012 to appellants’ request for jury trial. It

relied on the following provision in the “Deed of Trust and Security Agreement”

agreed to by appellants:

Every party to this Deed of Trust hereby expressly waives any right to trial by jury of any claim, action, or cause of action (a) arising under this Deed of Trust or any other instrument, document, or agreement executed or delivered in connection herewith; or (b) in any way connected with or related or incidental to the dealings of the parties hereto or any of them with respect to this Deed of Trust . . . and each party hereby agrees and consents that any such claim, demand, action, or cause of action shall be decided by court trial without a jury . . . .

On October 16, 2012, the court entered an order setting the cause for jury trial

April 15, 2013. However, on November 28, 2012, the court heard HBD’s objection

3 and entered an order denying appellants’ request for jury trial. The court issued an

order the same day setting the case for non-jury trial on February 4, 2013.

When the February 4, 2013 trial date arrived, appellants did not appear. At

no time had appellants responded to HBD’s objection to their request for jury trial

or objected to the court’s order moving the case to the non-jury docket.

In their brief, appellants claim that they did not receive notice of the trial

setting on the non-jury docket, and that, in particular, HBD’s attorney never

notified them of the court’s order transferring the case to the non-jury docket as the

order required, and that one of them was hospitalized at the time the case was

transferred to the non-jury docket.

The Texas Rules of Civil Procedure require that a party have notice of a trial

setting. TEX. R. CIV. P. 245. Additionally, “Once a defendant has made an

appearance in a cause, he entitled to notice of the trial setting as a matter of due

process under the Fourteenth Amendment to the federal constitution . . . .” LBL Oil

Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989) (per curiam).

“The law presumes a trial court hears a case only after proper notice to the

parties.” Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.]

1997, writ denied); accord Felt v. Comerica Bank, 401 S.W.3d 802, 806 (Tex.

App.—Houston [14th Dist.] 2013, no pet.). “To overcome this presumption, the

defendant must affirmatively show his lack of notice.” Felt, 401 S.W.3d at 806

4 (citing Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth 2003,

no pet.)). “This burden may not be discharged by mere allegations, unsupported by

affidavits or other competent evidence, that the appellant did not receive proper

notice.” Id. (quoting Campsey, 111 S.W.3d at 772); see also Fid. & Guar. Ins. Co.

v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006) (explaining that “default

generally must be set aside” when the defendant did not receive the suit papers but

that there is an exception to this rule “when nonreceipt is uncorroborated”);

Osborn, 961 S.W.2d at 413 (defendant did not show that his failure to attend trial

was unintentional when he took the stand at hearing but never testified that he did

not receive notice).

Since appellants offered no evidence that supports their allegations that they

did not receive notice, we adhere to the presumption that notice was received. See

Felt, 401 S.W.3d at 808–09; Campsey, 111 S.W.3d at 773; Osborn, 961 S.W.2d at

413. Appellants’ issue is overruled. It is therefore unnecessary for us to address

appellants’ claim that the trial court erred in moving the case to the non-jury

docket. In the months preceding the trial date, appellants never argued that transfer

of the case to the non-jury docket was improper. Likewise, they did not appear on

the date of trial and object to the removal of their case from the jury docket.

Indeed, appellants had never responded to HBD’s objection to their request for a

jury trial. Appellants cannot now complain that the trial court erred when they did

5 not timely present the reasons underlying their claim of error to the trial court. See

TEX. R. APP. P. 33.1(a).

Conclusion

We affirm the judgment of the trial court.

Michael Massengale Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.