Virginia Dailey and John W. Dailey v. Frank Dailey and Terry Dailey

• Court: Court of Appeals of Texas
• Decided: August 28, 2014
• Docket: 01-13-00923-CV
• Status: Published

Opinion

Opinion issued August 28, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00923-CV ——————————— VIRGINIA DAILEY AND JOHN W. DAILEY, Appellants V. FRANK DAILEY AND TERRY DAILEY, Appellees

On Appeal from County Civil Court at Law No. 2 Harris County, Texas Trial Court Case No. 1024856

MEMORANDUM OPINION

Virginia Dailey and John W. Dailey appeal the trial court’s dismissal of their

claims against Frank Dailey and Terry Dailey 1 pursuant to Texas Rule of Civil

1 In order to avoid confusion, Virginia Dailey, John W. Dailey, Frank Dailey, and Terry Dailey will be referred to in this opinion by their given names. Procedure 91a.1. The claims arise from a conveyance of real property by Virginia

and John to Frank and Terry. Finding no error in the trial court’s judgment, we

affirm.

Background

On January 8, 2011, Virginia and John sold real property located at 910

Sunnyside Street in Houston, Texas, to their son, Frank, and Frank’s wife, Terry,

for $80,000—$10,000 in cash at closing, with the remaining $70,000 to be seller-

financed.2 Virginia and John subsequently filed suit against Frank and Terry

seeking to set aside the conveyance and asserting causes of action against them for

fraud, breach of fiduciary duty, and conspiracy to commit fraud. Frank and Terry

answered and asserted counterclaims against Virginia and John for breach of

contract and specific performance.

Frank and Terry filed a motion to dismiss Virginia and John’s claims against

them pursuant to Rule of Civil Procedure 91a.1 and asked the trial court to award

them their costs and attorney’s fees. See TEX. R. CIV. P. 91a.1 (permitting party to

move to dismiss cause of action on grounds that it has no basis in law or fact) and

9la.7 (requiring court to award prevailing party all costs and reasonable and

2 Virginia and John and Frank and Terry all signed a HUD-1 Settlement Statement acknowledging the terms of the transaction and disbursement of the settlement proceeds.

2 necessary attorney’s fees). On May 9, 2013, the trial court granted Frank and

Terry’s motion and dismissed the suit with prejudice.

On May 21st, Frank and Terry filed a motion to reinstate because, in granting

their motion, the trial court had inadvertently dismissed their counterclaims against

Virginia and John, which were not the subject of any motion to dismiss. On June

4th, the trial court granted the motion to reinstate and vacated its May 9th

judgment. Six days later, Virginia and John filed a notice of appeal challenging

the trial court’s May 9th judgment dismissing their claims pursuant to Rule 91a.

On June 18th, Frank and Terry filed notice of their intent to non-suit their

counterclaims against Virginia and John. On June 24th, the trial court granted the

motion to non-suit the counterclaims and, in a separate order, dismissed Virginia

and John’s claims against Frank and Terry for want of prosecution.

Discussion

Virginia and John’s appellate brief assigns error only to the trial court’s May

9, 2013 judgment, which granted Frank and Terry’s motion to dismiss. As Frank

and Terry point out in their response, the May 9th judgment was vacated by the

trial court on June 4th and the underlying case was subsequently dismissed for

want of prosecution on June 24th.

In their reply brief, as we liberally construe it, Virginia and John argue for

the first time that the trial court’s dismissal of their claims for want of jurisdiction

3 should be set aside pursuant to Craddock v. Sunshine Bus Lines, Inc., 134 Tex.

388, 392–93, 133 S.W.2d 124, 126 (1939). See also Smith v. Babcock & Wilcox

Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (stating standard for reinstatement

of case after dismissal for want of prosecution is essentially same as standard for

setting aside default judgment set forth in Craddock).3 An appellant is not allowed

to raise new issues in a reply brief—even in reply to matters addressed in the

appellee’s response—and issues raised for the first time in a reply brief are waived

and need not be considered by the appellate court. See Priddy v. Rawson, 282

S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“The Texas

Rules of Appellate Procedure do not allow an appellant to include in a reply brief a

new issue not raised in the appellant’s original brief.”); McAlester Fuel Co. v.

Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied) (“An issue raised for the first time in a reply brief is ordinarily waived and

need not be considered by this Court.”); Howell v. Tex. Workers’ Comp. Comm’n,

143 S.W.3d 416, 439 (Tex. App.—Austin 2004, pet. denied) (“The rules of 3 In their short reply on this issue, Virginia and John quote Frank and Terry’s recitation of facts regarding the June 4th order vacating the May 9th judgment, and the subsequent dismissal of the case for want of prosecution, and then direct us to the Fourteenth Court of Appeals’s discussion of Craddock in Lowe v. Lowe, 971 S.W.2d 720, 723 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). They conclude by arguing, “Thus the factual requirement for dismissal if ‘A cause of action has no basis in fact if no reasonable person could believe the facts pleaded’ has not been met.” Notably, they do not allege any facts relevant to the Craddock elements (e.g., that their failure to appear was the result of mistake or accident, and not intentional or the result of conscious indifference), or even that they satisfy the requirements of Craddock.

4 appellate procedure do not allow an appellant to include in a reply brief a new

issue in response to some matter pointed out in the appellee’s brief but not raised

by the appellant’s original brief.”).

Moreover, even had Virginia and John challenged the June 24th judgment

based on Craddock in their initial appellate brief, they would still not be entitled to

relief because they did not raise this issue below, and thus failed to preserve error

as to this complaint. See TEX. R. APP. P. 33.1(a); see also Gammill v. Fettner, 297

S.W.3d 792, 802 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding

defendant’s failure to raise Craddock argument in motion for new trial failed to

preserve argument for appellate review).

We further note that had Virginia and John properly preserved this issue for

our review and we were to consider their challenge to the June 24th judgment

based on Craddock, they would still not prevail on appeal. In Craddock, the Texas

Supreme Court set forth three requirements that a defendant must satisfy in order

to have a default judgment set aside and obtain a new trial: (1) the failure to file an

answer or appear at a hearing was not intentional or the result of conscious

indifference, but was a mistake or accident; (2) a meritorious defense; and (3) a

new trial will not result in delay or prejudice to the plaintiff. Craddock, 134 Tex.

at 392–93, 133 S.W.2d at 126. A party challenging the dismissal of its suit

pursuant to Craddock bears the burden of establishing its entitlement to relief. See

5 Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (stating defaulting parties must

provide prima facie proof by way of affidavits or other evidence, that, if true,

would support their meritorious defense); Cont’l Cas. Co. v. Davilla, 139 S.W.3d

374, 382 (Tex. App.—Fort Worth 2004, pet. denied) (stating that defaulting party

must support its claim of accident or mistake with evidence, such as affidavits, and

that conclusory allegations are insufficient). Here, Virginia and John ask us in

their reply brief to apply the Craddock standard to the dismissal of their suit for

want of prosecution, however, they fail to allege that they meet the elements of

Craddock, much less provide prima facie evidence supporting such allegations.

Because Virginia and John have not assigned error with respect to the final

judgment in this case—the June 24th dismissal for want of prosecution—we affirm

the trial court’s judgment with respect to Frank and Terry. See Texas Nat’l Bank v.

Karnes, 717 S.W.2d 901, 903 (Tex. 1986) (holding that “the court of appeals may

not reverse a trial court’s judgment in the absence of properly assigned error”).

Conclusion

We affirm the trial court’s judgment.

Jim Sharp Justice

Panel consists of Justices Keyes, Sharp, and Huddle.