Penaloza Construction , LLC v. Fondren Heights LLC

• Court: Court of Appeals of Texas
• Decided: January 23, 2024
• Docket: 01-23-00333-CV
• Status: Published

Opinion

Opinion issued January 23, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00333-CV ——————————— PENALOZA CONSTRUCTION, LLC, NOE PENALOZA, FILIBERTO PENALOZA-DUARTE, AND OFELIA DUARTE, Appellants V. FONDREN HEIGHTS, LLC, Appellee

On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 22-DCV-290567

MEMORANDUM OPINION

Penaloza Construction, LLC and its three officers, Noe Penaloza, Filiberto

Penaloza-Duarte, and Ofelia Duarte (collectively, “Penaloza Construction”), appeal

the trial court’s default judgment, alleging federal and state constitutional violations. Because we conclude Penaloza Construction waived its sole appellate issue by

inadequate briefing, we affirm the trial court’s judgment.

BACKGROUND

This suit began when Smyrna Ready Mix, LLC, a concrete supplier, sued

Fondren Heights, LLC and Penaloza Construction. Smyrna Ready Mix alleged it

was never paid for concrete it provided to Penaloza Construction to complete a

construction project on property owned by Fondren Heights.1

Fondren Heights then filed a third-party petition asserting a cross-claim

against Penaloza Construction and its three officers. Fondren Heights alleged it hired

Penaloza Construction to complete concrete work on its property, and Penaloza

Construction bought concrete from Smyrna Ready Mix and another company, both

of which supplied the concrete, but Penaloza Construction never paid those

companies. Fondren Heights alleged that, to prevent these companies from

foreclosing on their mechanic’s liens on Fondren Heights’ property, Fondren

Heights paid the outstanding balance owed by Penaloza Construction. Fondren

Heights sought to collect from Penaloza Construction the amount it paid the two

companies on Penaloza Construction’s behalf. Fondren Heights also alleged that

because Penaloza Construction had forfeited its corporate charter, its three

1 Fondren Heights later settled with Smyrna Ready Mix, and the trial court dismissed all of their claims against each other. Smyrna Ready Mix is not a party to this appeal. 2 officers—Noe, Filiberto, and Ofelia—were individually liable for the company’s

debts.

Citing multiple unsuccessful in-person service attempts, Fondren Heights

filed a motion for alternative service of its third-party petition against Penaloza

Construction, which the trial court granted. The trial court authorized Fondren

Heights to serve Penaloza Construction at the address of its registered agent, the

same address where all three officers were believed to reside, by delivering a copy

of the citation and petition to anyone over 16 years of age at the address or by

attaching a copy of the citation and petition securely to the front door. Fondren

Heights served Ofelia in person and Noe and Filiberto by alternative service, but

none of the three answered or made an appearance in the suit, individually or on

behalf of Penaloza Construction.

Fondren Heights filed a motion for default judgment against Penaloza

Construction, stating that Penaloza Construction and its officers had been properly

served but failed to answer or appear in the suit. The trial court signed the default

judgment on April 11, 2023, awarding Fondren Heights damages in the amount of

$94,998.78 against Penaloza Construction and its officers, jointly and severally, as

well as $5,000 in attorney’s fees.

Penaloza Construction filed a notice of appeal on April 11, 2023, just over

three weeks after the trial court signed the default judgment.

3 DISCUSSION

Penaloza Construction contends the trial court erred in granting a default

judgment in violation of its rights under the Fifth and Fourteenth Amendments of

the United States Constitution and under Article 1, Section 19 of the Texas

Constitution.2

Briefing Waiver

An appellate brief should “acquaint the court with the issues in a case and . . .

present argument that will enable the court to decide the case.” TEX. R. APP. P. 38.9.

Specifically, an appellant’s brief must “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). The reviewing court has no duty to independently review the

record to find error. Sammour v. Adler, No. 02-21-00086-CV, 2022 WL 963845, at

*2 (Tex. App.—Fort Worth Mar. 31, 2022, no pet.) (mem. op.). A party whose brief

fails to make a clear argument for its contentions waives the issue on appeal. Izen v.

Comm’n for Law. Discipline, 322 S.W.3d 308, 322 (Tex. App.—Houston [1st Dist.]

2010, pet. denied); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006,

no pet.) (“We have no duty to brief [an] appellant’s issue for [it]. Failure to . . .

2 Penaloza Construction referred to “Section 1.9 of the Texas Constitution” in its appellate brief, but we presume it intended to refer to the due course of law provision in Article 1, Section 19, which is substantively similar to the due process of law provisions in the federal Fifth and Fourteenth Amendments. 4 provide substantive analysis waives an issue on appeal.”). A party can waive even

constitutional issues by inadequate briefing. See In re E.R.C., 496 S.W.3d 270, 278

(Tex. App.—Texarkana 2016, pet. denied) (holding appellant waived constitutional

issues by failing to explain how constitutional rights were violated).

In its appellate brief, Penaloza Construction states that the trial court violated

its constitutional rights but provides no further argument. The brief quotes and

summarily explains the Fifth and Fourteenth Amendments of the United States

Constitution but does not explain how they are implicated in this case. The brief

contains no citations to the record, so we cannot infer which of the trial court’s

actions supposedly violated Penaloza Construction’s rights, nor how the supposed

violation resulted in the rendition of an improper judgment. See TEX. R. APP. P.

44.1(a)(1) (no judgment may be reversed on appeal unless error complained of

probably caused rendition of improper judgment). Penaloza Construction may not

obtain appellate review of an issue by making bare assertions of error and failing to

provide any argument supporting its complaint.

Accordingly, Penaloza Construction has waived its only issue on appeal

because that issue is inadequately briefed. See Izen, 322 S.W.3d at 322; see also

Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—

Dallas 2010, no pet.) (“Only when we are provided with proper briefing may we

5 discharge our responsibility to review the appeal and make a decision that disposes

of the appeal one way or the other.”).

Error Preservation

Even if Penaloza Construction had argued the trial court erred by failing to set

aside the default judgment, the record indicates Penaloza Construction did not

preserve this issue for appeal.

In any appeal, the appellate record must show the appellant preserved error by

making a complaint to the trial court by timely request, objection, or motion with

sufficient specificity to make the trial court aware of the complaint, and the trial

court either ruled on it or refused to rule on it. TEX. R. APP. P. 33.1(a). For a direct

appeal from a no-answer default judgment, as here, a motion for new trial is required

to preserve issues for appellate review. Yezak v. State, No. 05-21-01046-CV, 2023

WL 4286025, at *2 (Tex. App.—Dallas June 30, 2023, no pet.) (mem. op.); see also

TEX. R. CIV. P. 324(b)(1) (“A point in a motion for new trial is a prerequisite to . . .

[a] complaint on which evidence must be heard such as . . . [a] failure to set aside a

judgment by default[.]”).

A party seeking to set aside a default judgment in the trial court must offer

evidence to satisfy the Craddock factors,3 and a motion for new trial is the proper

3 The Craddock factors require the defaulting party to show that: (1) the failure to appear was not intentional or the result of conscious indifference but was the result of a mistake or an accident; (2) the defaulting party has a meritorious defense; and 6 vehicle to introduce new evidence into the trial court’s record after judgment. Ford

v. Skyline Mobile Home Ests., No. 02-22-00244-CV, 2023 WL 3749890, at *2 (Tex.

App.—Fort Worth June 1, 2023, no pet.) (mem. op.). A party that needs to introduce

evidence to explain its failure to appear must do so in a motion for new trial to

preserve error because, on appeal, the appellate court may only consider evidence in

the appellate record. See TEX. R. APP. P. 34.1 (appellate record consists only of

clerk’s record and, when necessary, reporter’s record). An appellate court cannot

consider new evidence outside the record. See Tex. Windstorm Ins. Ass’n v. Jones,

512 S.W.3d 545, 552 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“Evidence

that is not contained in the appellate record is not properly before this Court.”). Thus,

we may not consider an affidavit outside the appellate record even if it is attached to

or cited in an appellate brief. E.g., Raley v. Daniel K. Hagood, P.C., No. 05-18-

00914-CV, 2019 WL 5781916, at *2 (Tex. App.—Dallas Nov. 6, 2019, pet. denied)

(mem. op.) (“Attaching documents as exhibits or appendices to a brief does not make

them part of the record on appeal and we cannot consider them.”); Till v. Thomas,

10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“We cannot

consider documents attached to an appellate brief that do not appear in the record.”).

(3) granting a new trial will not cause delay or cause injury to the other party. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm’n Op.] 1939). 7 Here, Penaloza Construction filed its notice of appeal less than 30 days after

the trial court signed the default judgment. Thus, Penaloza Construction had the

opportunity to timely file a motion for new trial. See TEX. R. CIV. P. 329b(a) (motion

for new trial must be filed within 30 days after judgment is signed). Penaloza

Construction did not file a motion for new trial or introduce any evidence into the

trial court’s record to satisfy the Craddock factors and explain its failure to appear.

Although Filiberto Penaloza-Duarte, one of the company’s officers, attempts to

explain the reasons for Penaloza Construction’s failure to appear in an affidavit cited

in the appellant’s brief, we may not consider this affidavit because it was not

introduced in the trial court and is not part of the appellate record. See Raley, 2019

WL 5781916, at *2; Till, 10 S.W.3d at 733.

Even if Penaloza Construction had raised on appeal any error in the trial

court’s failure to set aside the default judgment, it did not preserve error and would

have waived appellate review of the issue. See TEX. R. APP. P. 33.1(a).

CONCLUSION

We affirm the trial court’s judgment.

Gordon Goodman Justice

Panel consists of Justices Goodman, Countiss, and Farris.