Tedros Teseamicael Hailu v. Diana Lopez Moreno

• Court: Court of Appeals of Texas
• Decided: November 27, 2024
• Docket: 05-23-01318-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed November 27, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01318-CV

TEDROS TESEAMICAEL HAILU, Appellant V. DIANA LOPEZ MORENO, Appellee

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-15730

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Smith Opinion by Justice Reichek Tedros Teseamicael Hailu appeals a judgment following a bench trial

awarding Diana Lopez Moreno possession of property, damages under the Texas

Deceptive Trade Practices Act, statutory penalties under the Texas Property Code,

and attorney’s fees. In a single issue, Hailu contends the judgment must be reversed

because Moreno failed to comply with the DTPA’s notice requirement. Concluding

Hailu waived his objection to lack of notice, we affirm the trial court’s judgment. Background1

In 2005, Moreno purchased a townhome from Wood Sisters Minor Trust

(WSMT) for $37,000. Under the terms of the purchase contract, Moreno paid $5,000

at the time the contract was signed, and the remainder was to be paid in monthly

installments over a period of twenty years. Once the purchase price was paid in full,

the house would be conveyed to Moreno by general warranty deed. WSMT

transferred its interest in Moreno’s purchase contract to Hailu in 2010. Moreno was

instructed to continue making payments as she had before.

In 2021, a dispute arose between Moreno and Hailu about alleged missed

payments and the amount due under the contract. Moreno testified she attempted to

pay the full amount still owed, which she calculated to be $13,862.19, but Hailu

refused to accept the check. Moreno then hired an attorney, Guillermo Ramos, who

sent Hailu a letter with the subject line “Notice of Deceptive Trade Practices

Violation Pursuant to Tex. Bus. & Com. Code § 17.505 et seq.” Ramos re-tendered

Moreno’s check for $13,862.19 stating Hailu had “a duty to accept payment and if

you dispute the amount you should apply the amount of the payment to the balance

owed and send a statement reflecting the amount owed to pay the loan amount.” The

letter further stated the settlement offer would be valid for sixty days and, if Hailu

refused to accept and apply the check, Moreno would file suit alleging claims under

1 We recount only those facts necessary to resolve the issue presented.

–2– the DTPA and the Texas Property Code. Hailu did not accept Moreno’s check and

multiple letters were exchanged between the parties and their counsel over the

following year in an attempt to resolve the matter.

On November 11, 2022, Moreno filed this suit seeking a declaration of the

amount due under the contract, title to the property, actual damages, treble damages

under the DTPA, and attorney’s fees. Following a trial before the court without a

jury, the court signed a final judgment declaring the total amount owed by Moreno

was $16,795.90 and, after payment of this amount, Hailu would be divested of title

to the property which would be conveyed to Moreno. The court additionally

awarded Moreno damages under the DTPA, statutory penalties under the property

code, and attorney’s fees.

Hailu filed a motion for new trial arguing in a single sentence that the “Court’s

calculation of damages was improper.” The motion was overruled by operation of

law, and Hailu brought this appeal

Analysis

In his sole issue, Hailu contends the trial court’s judgment must be reversed

because Moreno failed to comply with the DTPA’s notice requirements. Under the

DTPA, it is a prerequisite to filing suit that a plaintiff give written notice to the

defendant at least sixty days before suit is filed advising the defendant in reasonable

detail of the plaintiff’s specific complaint and the amount of economic damages,

damages for mental anguish, and expenses, including attorney’s fees, if any. TEX.

–3– BUS. & COM. CODE ANN. § 17.505(a). If the plaintiff fails to give the required notice,

the proper remedy is not dismissal, but an abatement of the proceedings for sixty

days to allow the plaintiff to comply. Hines v. Hash, 843 S.W.2d 464, 468–69 (Tex.

1992). An objection to lack of proper notice is timely if it is made with the filing of

the answer or very soon thereafter. Id. at 469. The failure to make a timely request

for abatement waives any objection to lack of notice. Kyle v. Zepeda, No. 01-11-

00388-CV, 2013 WL 2246030, at *10 (Tex. App.—Houston [1st Dist.] May 21,

2013, no pet.) (mem. op.).

Hailu did not raise the issue of insufficient notice until this appeal. He asserts

he preserved error by filing a motion for new trial arguing the trial court

miscalculated damages. This assignment of error was too general to apprise the trial

court of any complaint with respect to the DTPA notice requirement. See TEX. R.

CIV. P. 322. It was also too late to allow the trial court to abate the proceedings to

fulfill the notice requirement’s purpose. See Hines, 843 S.W.2d at 469.

Accordingly, even assuming Moreno’s notice did not comply with the DTPA, we

conclude Hailu waived his right to challenge the notice on appeal. See id. We

overrule Hailu’s sole issue.

We affirm the trial court’s judgment.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE 231318F.P05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TEDROS TESEAMICAEL HAILU, On Appeal from the 134th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-22-15730. No. 05-23-01318-CV V. Opinion delivered by Justice Reichek. Justices Molberg and Smith DIANA LOPEZ MORENO, participating. Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee DIANA LOPEZ MORENO recover her costs of this appeal and the full amount of the trial court’s judgment from appellant TEDROS TESEAMICAEL HAILU and from the cash deposit in lieu of cost bond. After all costs have been paid, the clerk of the Dallas District Court is directed to release the balance, if any, of the cash deposit to TEDROS TESEAMICAEL HAILU.

Judgment entered November 27, 2024

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