DWOP Law and Case Citations from the Dallas Court of Appeals (in Pro Se Prisoner Appeal)

DISMISSAL FOR WANT OF PROSECUTION

In his sole issue on appeal, appellant contends the trial court judge abused her discretion “when she entered an order of dismissal for want of prosecution as a result of [appellant's] failure to appear at his hearing Tuesday, September 2, 2008 at 1:00.” Specifically, appellant argues the trial court's dismissal of this case for want of prosecution “based on [his] failure to appear at dismissal hearing” was “fundamentally unfair and denied [him] access to the courts, where [he] was unable to appear personally because he was incarcerated, the trial court denied his request for a bench warrant, and he was unable to appear by alternative means, such as telephone, affidavit, because trial court denied his motion to appear by such alternative means.” No brief was filed in this Court by appellees.

A. Standard of Review

We review a dismissal for want of prosecution under an abuse of discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex. 1984); Crown Asset Mgmt., L.L.C. v. Bogar, 264 S.W.3d 420, 422 (Tex. App.-Dallas 2008, no pet.). The burden of proof rests on a litigant asserting an abuse of discretion because there is a presumption the action of the trial court was justified. Bogar, 264 S.W.3d at 422. A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. (citing Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004)).

B. Applicable Law

A trial court's power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court's inherent authority. Id. (citing Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999)). Under rule 165a, a trial court may dismiss a suit when (1) a party fails to appear for a trial or hearing or (2) a suit is not disposed of within the time standards set by the Texas Supreme Court. See Footnote 1 See Tex. R. Civ. P. 165a. Independent of the rules of civil procedure, a trial court may dismiss a suit under its inherent authority if the plaintiff fails to prosecute the case with due diligence. Bogar, 264 S.W.3d at 422 (citing Villareal, 994 S.W.2d at 630).

As a general rule, we must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support the judgment. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977); Oliphant Fin. LLC v. Angiano, No. 05-07-01443-CV, 2009 WL 2648125, at *1 (Tex. App.-Dallas Aug. 28, 2009, no pet. h.); Crown Asset Mgmt., L.L.C. v. Strayhorn, No. 05-07-01603-CV, 2009 WL 2784561, at *2 (Tex. App.-Dallas Sept. 3, 2009, no pet.) (mem. op.); see also Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (basis for rule is appellate court must accept validity of unchallenged independent ground and thus any error in ground challenged on appeal is harmless).

C. Application of Law to Facts

In its August 21, 2008 “Notice of Hearing,” the trial court informed appellant he “must contact the 95th District Court Administrator, in person or by telephone on or before the [September 2, 2008] hearing to report the status of this cause.” (emphasis original). Appellant does not assert, and the record does not show, he contacted the court administrator in person or by telephone as directed. Additionally, in that same notice, appellant was informed “ [f]ailure to appear at [the September 2, 2008] hearing shall result in dismissal of this case for want of prosecution.” (emphasis original). Appellant does not assert, and the record does not show, he appeared at the September 2, 2008 hearing.

In its “Order of Dismissal for Want of Prosecution” dated September 4, 2008, the trial court stated in part

Plaintiff did not take certain action heretofore specified by the Court within the time period prescribed, and having not disposed of this case, the Court finds that this cause should be dismissed for want of prosecution pursuant to Texas Rule of Civil Procedure 165a. The Court finds that Plaintiff was duly notified of a dismissal hearing set on September 2, 2008 at 1:00 p.m. and did not take the necessary action. Accordingly,

IT IS ORDERED that the case is dismissed for want of prosecution with costs taxed against Plaintiff for which execution issue.

(emphasis original).

Appellant asserts the trial court erred by dismissing this case “as a result of [his] failure to appear at his hearing Tuesday, September 2, 2008 at 1:00.” However, based on the wording of the trial court's August 21, 2008 notice and September 4, 2008 order, it is possible the trial court dismissed this case pursuant to its inherent authority to dismiss cases for want of prosecution because appellant did not contact the court administrator as directed. Cf. Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (noting that where trial court's order of dismissal was unclear as to whether it was based upon rule 165a or inherent authority, either ground may have been relied upon). Appellant does not address this potential alternative, independent basis for dismissal or assert error regarding dismissal
pursuant to such basis.

Because the trial court may have dismissed this case for want of prosecution pursuant to its inherent authority based on appellant's failure to contact the court administrator in person or by telephone as directed in the August 21, 2008 notice, appellant was required to address this independent basis for dismissal on appeal. See Nobility Homes of Tex., Inc., 557 S.W.2d at 83; Oliphant Fin. LLC, 2009 WL 2648125, at *1; Strayhorn, 2009 WL 2784561, at *2. Appellant did not do so. Therefore, we cannot conclude the trial court abused its discretion in this case. See Rotello, 671 S.W.2d at 509; Bogar, 264 S.W.3d at 422. Appellant's sole issue is decided against him.

SOURCE: Dallas Court of Appeals Opinion in Cause No. 05-08-01485-CV (11/3/09)

Two Alternative Legal Bases for DWOP Dismissal

Dallas Court of Appeals, in another one of a series of recent appeals from debt collection cases that were dismissed by the county court, discusses the two sources of authority for a judge to dismiss a lawsuit for want of prosecution in Texas (TRCP 165a and the court's inherent power), and finds that neither supports dismissal of the case at bar.

FROM THE OPINION:

A trial court's authority to dismiss a case for want of prosecution stems from two sources: (1) Texas Rule of Civil Procedure 165a, and (2) the trial court's inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

A trial court may dismiss a case under rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice” or when a case is “not disposed of within the time standards promulgated” by the supreme court. Tex. R. Civ. P. 165a(1), (2). See Tex. R. Jud. Admin. 6 (requiring judges to ensure, so far as reasonably possible, that civil nonjury cases are brought to trial or final disposition within twelve months from appearance date, and that civil jury cases are brought to trial or final disposition within eighteen months from appearance date).

In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute its case with due diligence. Villarreal, 994 S.W.2d at 630; WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied).

Lack of diligence need not amount to abandonment for a case to be properly dismissed. WMC Mortgage Corp., 200 S.W.3d at 752. In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Id. No single factor is dispositive. Id.B.

Discussion

1. Dismissal under Rule 165(a)

The dismissal lists as a reason for dismissal “failure to take action after notice of intent to dismiss for want of prosecution,” in accordance with its “rule 165a letter.” However, a trial court may dismiss a case under rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice” or when a case is “not disposed of within the time standards promulgated” by the supreme court. Tex. R. Civ. P. 165a(1), (2). Although the dismissal order provides “failure to appear for a hearing or trial of which notice was had” as a reason for dismissal, the trial court did not check this reason for dismissal. In addition, the record shows that Oliphant filed suit on August 15, 2007, and moved for default judgment on October 18, 2007. The trial court dismissed it on November 30, 2007. This case was not pending beyond the time standards set by the supreme court. We conclude the record does not support dismissal pursuant to rule of civil procedure 165(a). See Tex. R. Civ. P. 165a(1), (2).

2. Dismissal under Inherent Power

In its October 19, 2007 Order to Amend Petition, the trial court ordered Oliphant to amend its petition for several specific reasons and cautioned Oliphant that failure to amend would result in dismissal for want of prosecution. The trial court's dismissal letters advised Oliphant that failure to move for and have heard a summary judgment or prove up a default judgment before specific dates would result in dismissal.

Because we have concluded Oliphant proved up a default judgment on its breach of contract claim, none of these grounds will support dismissal for want of prosecution for failure to amend as ordered under the trial court's inherent power.

Further, we conclude the record does not show a lack of diligence by Oliphant in prosecuting its claim. See Villarreal, 994 S.W.2d at 630; WMC Mortgage Corp., 200 S.W.3d at 752.

Accordingly, we conclude the trial court abused its discretion in dismissing this case. See Downer, 701 S.W.2d at 241-42; Vann, 244 S.W.3d at 614. We resolve Oliphant's issue in its favor to this extent. We need not discuss the trial court's alternative summary judgment condition for dismissal.

SOURCE: Oliphant Financial, LLC v. Galvaniz, No. 05-07-01730-CV (Tex.App.- Dallas Oct. 26, 2009) (debt collector's pleadings, motion for default judgment and attached evidence - including deemed admissions - sufficient to support default judgment; denial of default judgment and dismissal for want of prosecution reversed and case remanded for further proceedings)

Standard of Review Applied by Appellate Court in Reviewing Propriety of Dismissal for Want of Prosecution Order Entered by the Trial Court

CHALLENGING A DWOP ORDER:

Standard of Review on Appeal, as stated by the Dallas Court of Appeals:

We review a dismissal for want of prosecution under an abuse of discretion standard. See Vann v. Brown, 244 S.W.3d 612, 614 (Tex. App.-Dallas 2008, no pet.). See also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles).

Oliphant Financial, LLC v. Galvaniz,
No. 05-07-01730-CV (Tex.App.- Dallas Oct. 26, 2009)

15-day Extension to File Notice of Appeal Not Automatic

The Texas Rules of Appellate Procedure (TRAP) allow for a notice of appeal to be filed fifteen (15) days late, but not without a reasonable explanation being set forth in a proper motion. What qualifies as reasonable, and what doesn't? The Dallas Court of Appeals yesterday answered that question, at least in part. Its opinion dismissing the attempted - untimely - appeal provides a reminder that the 15 extra days cannot be taken for granted. Specifically, the court held, that waiting for a ruling on a motion for new trial was not a reasonable explanation for delay in filing the notice of appeal, particularly when the motion had already been overruled by operation of law.

MEMORANDUM OPINION

The Court has before it appellant's September 22, 2009 motion to extend time to file his notice of appeal and appellee's response in opposition to the motion. For the reasons set forth below, we deny the extension motion and dismiss the appeal.

The trial court's judgment was signed on May 20, 2009 and appellant filed a timely motion for new trial. Therefore, his notice of appeal was due by August 18, 2009. See Tex. R. App. P. 26.1(a). The notice of appeal was filed on September 2, 2009, within the fifteen-day period provided by rule 26.3. See Tex. R. App. P. 26.3(a). Therefore, we directed appellant to file a motion to extend time to file his notice of appeal setting forth a reasonable explanation for the need of the extension. See Tex. R. App. P. 10.5(b), 26.3(b); Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).

In his extension motion, appellant asserted, “Plaintiff's motion for new trial was timely filed on June 19, 2009. The hear [sic] date of motion for new trial was set on Sept. 2nd, 2009; Therefore whether to appeal only could be determined after the hearing of motion for new trial.”

Appellee responded that appellant did not provide a reasonable explanation because the motion for new trial had already been overruled by operation of law on August 3, 2009, and appellant did not file his notice of appeal until the 105th day after the trial court's judgment was signed.

We agree that appellant has not provided a reasonable explanation for the need of the extension.

The Texas Supreme Court has defined “reasonable explanation” to mean “'any plausible statement of circumstance indicating that failure to file within the [required] period was not deliberated or intentional, but was the result of inadvertence, mistake, or mischance.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (internal citation omitted). “Any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance. . . .” Id. at 670.

Texas courts have rejected as unreasonable explanations that show a defendant's conscious or strategic decision to wait to file a notice of appeal, reasoning the explanations did not show inadvertence, mistake, or mischance. See, e.g., Hykonnen v. Baker Hughes Bus. Support Servs., 93 S.W.3d 562, 563-64 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding unreasonable appellant's explanation he failed to file notice of appeal until he found attorney to represent him on appeal at little or no cost); Rodman v. State, 47 S.W.3d 545, 548-49 (Tex. App.-Amarillo 2000, no pet.) (holding unreasonable explanation that when State disclosed, after expiration of time for filing notice of appeal, its intent to indict appellant for other crimes, appellant decided to appeal to preserve eligibility for probation in upcoming trials); Kidd v. Paxton, 1 S.W.3d 309, 310-13 (Tex. App.-Amarillo 1999, no pet.) (op. on reh'g) (holding unreasonable explanations counsel miscalculated due date for filing notice of appeal when he failed to file notice of appeal on miscalculated date and counsel's preoccupation with other cases without detailed explanation of complexities and relevant deadlines of other cases); Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (holding unreasonable appellant's explanation that his lawyer told him if he appealed case while trial court still had authority to reinstate case, trial court would reinstate case and appellant would have difficult time prosecuting claim because of trial court's displeasure with appellant).

This Court has likewise rejected as unreasonable explanations that showed an appellant's decision to wait to file a notice of appeal was not due to inadvertence, mistake, or mischance, but was due to a conscious decision to ignore the appellate timetable in favor of the trial court's jurisdictional timetable. See Crossland v. Crossland, No. 05-06-00228-CV, 2006 WL 925032 (Tex. App.-Dallas Apr. 11, 2006, no pet.) (mem. op.) (per curiam).

Because appellant's explanation in this case shows he was aware of the deadline for filing his notice of appeal, but consciously ignored the deadline in favor of waiting for a ruling on his motion for new trial, we conclude appellant has not provided a reasonable explanation for the need of the extension.

We deny his motion to extend time to file his notice of appeal.

We dismiss the appeal for want of jurisdiction.

PER CURIAM

Zhao, Yumin v. Lone Star Engine Installation Center, Inc., No. 05-09-01055-CV (Tex.App.- Dallas Oct. 6, 2009)
Docket Sheet
Case Type: CONTRACT

Hearing on Motion to Reinstate Can Cure Error in Notice or Render it Harmless

What is the effect of filing - and obtaining a hearing on - a motion to reinstate a case terminated by dismissal for want of prosecution? A recent appellate decision from the First Court of Appeals in Houston in a high-profile case supports the proposition that such a hearing provides a substitute for proper notice of intent to dismiss and an opportunity to object and be heard on the issue. Since the hearing on the motion to reinstate/for new trial after the DWOP allows the aggrieved party an opportunity to show why the case should remain on the court's docket, any due process violation would be cured at that point, or rendered harmless error, which does not provide grounds for reversal on appeal.

THE RELEVANT SECTION OF THE OPINION IS REPRODUCED BELOW, FOLLOWED BY THE CASE CITE

Dismissal for Want of Prosecution

Appellants argue in their second point of error that the trial court erred in dismissing their suit forwant of prosecution and request that the trial court’s dismissal be reversed.

The trial court signed an order on July 21, 2004, dismissing appellants’ suit for want of prosecution because no final arbitration hearing had commenced by July 9, 2004, as ordered.

As an initial matter, appellants claim that the trial court’s order threatening dismissal unless arbitration was commenced by July9, 2004 was not a notice of trial or “dispositive” setting and that the court could not dismiss until givingadditional notice of potential dismissal with a hearing on a date certain. Appellants further claim that theywere confused as to precisely what actions had to be taken to avoid dismissal. Finally, appellants claim that they received no notice of the trial court’s order informing them that “unless a final hearing on Plaintiff’sclaims has commenced before the American Arbitration Association on or before July 9, 2004, Plaintiff’sclaims shall be DISMISSED FOR WANT OF PROSECUTION.”

Even assuming that appellants received no notice of the trial court’s intention to dismiss their suit for want of prosecution, we hold that any such error was harmless because appellants were given an opportunity to be heard on their motion to reinstate, filed after the dismissal for want of prosecution. See Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 403 (Tex. App.—Dallas 2001, pet. denied).

Appellants filed a “Motion for Reinstatement and/or New Trial,” which contained arguments identical to those presented on appeal. After a full hearing on August 20, 2004, the trial court denied appellants’ motion. If a party receives the same hearing before the trial court that it would have had before the dismissal was signed, no harmful error is committed. Id. at 403.

Jimenez v. Transwestern Property Company, 999 S.W.2d125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.), also shows that any error did not harm the appellants. In that case, the appellant was not given notice of the trial court’s intent to dismiss for want of prosecution but was given a hearing on the motion to reinstate. Id. at 129. The court held that the hearing on appellant’s motion to reinstate “satisfied the due process rights applicable to the dismissal of his case.”Id. Therefore, assuming without deciding that the trial court erred in dismissing appellants’ case, we hold thatsuch error was harmless. Id. We overrule appellants’ second point of error.

Conclusion

We affirm the judgment of the trial court.

Chambers vs. O'Quinn (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Taft) (opinion on remand from the Texas Supreme Court) (mostly addressing arbitration issues)

Motion to Reinstate Must Be Verified (Sworn)

Reminder from the Fifth Court of Appeals: Motion to Reinstate dwopped case that is not verified (sworn to) does not extend appellate deadline. Consequences of noncompliance are dire: Untimely attempted appeal dismissed for want of jurisdiction (DWOJ):

PER CURIAM OPINION

Appellant Lakeith Amir-Sharif appeals the trial court's judgment dismissing the case for want of prosecution and the trial court's failure to grant appellant's motion to reinstate.After reviewing the record, we questioned our jurisdiction over this appeal.

Amir-Sharif v. Hawkins, No. 05-08-01388-CV (Tex.App.- Dallas, Oct. 1, 2009)

By letter dated August 31, 2009, we notified appellant of this Court's concern regarding its jurisdiction over this appeal and directed appellant to file a letter brief regarding the jurisdictional question by September 10, 2009 and directed appellee to file any response to appellant's letter brief by September 17, 2009, at which time the Court would resolve the jurisdictional question. Appellant filed a brief on September 21, 2009.

We dismiss this appeal for lack of jurisdiction.

The law is well settled and we therefore issue this memorandum opinion. See Tex. R. Civ. P. 47.1.Pursuant to rule of civil procedure 165a and the court's inherent power, on August 7, 2008 the trial court signed an order of dismissal for want of prosecution for appellant's “having failed to take actions heretofore specified by the Court within the time period prescribed, and for failing to announce for trial scheduled for August 4, 2008.”

On August 21, 2008, appellant filed an unverified “Motion to Reinstate Complaint.” Appellant filed his notice of appeal on October 13, 2008, more than thirty days after the August 7, 2008 order of dismissal. Because his motion to reinstate was not verified, the notice of appeal was due 30 days after the dismissal order was signed. See Tex. R. Civ. P. 165a(3) (motion to reinstate shall be verified by the movant or his attorney); Tex. R. App. P. 26.1.

An unverified motion to reinstate does not extend the trial court's plenary power or the deadline for appealing the dismissal of the case. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (per curiam); Macarangal v. Andrews, 838 S.W.2d 632, 633 (Tex. App.-Dallas 1992, orig. proceeding); Sierra Club v. Tex. Comm'n on Envtl. Quality, 188 S.W.3d 220, 223 (Tex. App.-Austin 2005, no pet.).We conclude appellant's notice of appeal was untimely.

We therefore lack jurisdiction over this appeal. See Footnote 1 We dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 26.1.

LINDA THOMASCHIEF JUSTICE


Footnote 1 We note a prior appeal of this appellant was dismissed for lack of jurisdiction on the identical basis. See Amir-Sharif v. State Farm Mut. Ins. Co., No. 05-07-01254-CV, 2009 WL 104777, at *1 (Tex. App.-Dallas Jan. 16, 2009, no pet.).
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File Date[10/01/2009]

Unifund v. Credit Card Holder: Another DWOP Order Affirmed

Fifth Court of Appeals continues its string of opinions (see Dallas DWOP Redux) affirming dismissals of consumer debt suits on procedural grounds.

MEMORANDUM OPINION BY JUSTICE FITZGERALD

Appellant Unifund CCR Partners sued appellee Travis Jackson for breach of contract. Jackson never appeared, and Unifund moved for default judgment. The trial court eventually dismissed the case for want of prosecution. On appeal, Unifund raises a single issue complaining that the trial court erred by not granting its motion for default judgment. We affirm.

I. Background

Unifund sued Jackson in July 2006. The trial court set the case for dismissal in December. The court advised that it expected Unifund to prove up a default judgment by the dismissal date if Jackson did not answer. The court eventually extended the dismissal date to April 20, 2007.

Our record contains only one executed return of service. The return indicates that the process server effected substituted service of process on February 8, 2007, by attaching the process to the main entrance of a certain apartment. See Footnote 1

Unifund filed a motion for default judgment in March. On April 23, 2007, the trial judge signed an order retaining the case on the court's dismissal docket until June 22, 2007.

On July 3, 2007, the trial judge signed an order dismissing the case without prejudice for two reasons: (1) “[f]ailure to take action after notice of intent to dismiss for want of prosecution,” and (2) want of prosecution. On July 30, 2007, Unifund filed a motion to reinstate and a second motion for default judgment. The record contains no order on Unifund's motion to reinstate or on either of its motions for default judgment.

Unifund appealed the order dismissing its case. Jackson has not filed a brief or otherwise appeared in this appeal.

II. Analysis

In Unifund's only issue on appeal, it attacks the trial court's failure to grant a default judgment against Jackson. We conclude that Unifund did not preserve error in the trial court.

To preserve a complaint for appellate review, a party must make the complaint to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). Preservation also requires one of three things: (1) an express ruling by the trial court, (2) an implicit ruling by the trial court, or (3) a refusal to rule by the trial court, coupled with an objection to that refusal by the complaining party. Tex. R. App. P. 33.1(a)(2). This record contains no express ruling on either
of Unifund's motions for default judgment, nor does it contain any objection by Unifund to the trial court's refusal to rule, if any.

We conclude that the trial court's order dismissing the case does not constitute an implicit ruling on Unifund's first motion for default judgment. An order of dismissal for want of prosecution does not implicitly deny a pending motion for default judgment when the record does not demonstrate that the motion for default judgment was brought to the trial court's attention and the dismissal order does not address or acknowledge the motion for default judgment. Unifund CCR Partners v. Smith, No. 05-07-01449-CV, 2009 WL 2712385, at *2 (Tex. App.-Dallas Aug. 31, 2009, no pet. h.) (mem. op.).

In this case, the court's April 23, 2007 order retaining the case on the court's docket does not mention Unifund's default-judgment motion. Neither the dismissal order nor anything else in the record indicates that the trial court considered Unifund's first motion for default judgment when the court dismissed the case.

On similar facts, we held in Smith that the plaintiff failed to preserve error. See id. We follow Smith and conclude that the dismissal order preserved no error as to Unifund's first motion for default judgment. As for Unifund's postjudgment motion for default judgment, the trial court made no rulings at all after Unifund filed that motion.

Thus, there is no judicial action from which we could infer an implicit ruling on that motion either. See AIS Servs., LLC v. Mendez, No. 05-07-01224-CV, 2009 WL 2622391, at *1 (Tex. App.- Dallas Aug. 27, 2009, no pet. h.) (mem. op.) (“An implicit ruling is one that is unstated but
can be inferred from something else.”).

We resolve Unifund's sole issue on appeal against it and affirm the judgment of the trial court.

KERRY P.
FITZGERALD
JUSTICE

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Footnote 1 We note that the appellate record contains no order
authorizing the use of substituted service of process.
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File Date[09/23/2009]

September 23, 2009

05-07-01226-CV AFFIRM - Docket Sheet Unifund CCR Partners v. Jackson, Travis Opinion by: Justice Kerry P. FitzGerald Memorandum Opinion Case Type: CONTRACT [credit card debt]

See: Other Unifund CCR Partners debt collection cases in Texas courts of appeals

Procrastination Results in Dismissal of Appeal

Although it is not governed by Rule 165a of the Rules of Civil Procedure, dismissal for want of prosecution also occurs on appeal. There may be a certain amount of leniency when it comes to deadline extensions for filing the brief, but procrastination is risky business, as seen in an opinion on DWOP issued by the Austin Court of Appeals today:

M E M O R A N D U M O P I N I O N

Appellant Jay Sandon Cooper's notice of appeal was filed in this Court on July 23, 2008. The cause was stayed for appellant's bankruptcy proceeding on November 19, 2008. On March 10, 2009, we reinstated the cause and informed appellant that his brief was due April 9, 2009. On May 1, we sent appellant notice that his brief was overdue, giving him until May 11 to respond. On May 11, appellant informed this Court by telephone that he was placing a motion for extension of time in the mail that same day; the motion was received by this Court on May 20 and asked for an extension to May 18. On May 22, we granted appellant's motion and on May 29, we sent notice that appellant's brief was overdue, giving him until June 8 to respond. On June 8, we again received a phone call from appellant informing us that he was mailing a motion for extension of time that day; the motion was not received by this Court until June 22, and it asked us to extend the filing deadline to July 6. On June 29, we received correspondence from appellee's counsel informing us that he opposed the most recent motion for extension of time and that he was not contacted by appellant regarding the motion, as represented in appellant's certificate of conference. On July 3, 2009, we ordered that the brief be filed no later than July 10.

On July 16, appellant filed a motion seeking to have the clerk's record supplemented, explaining that he was almost finished with his brief when he realized several documents had been omitted. He said he had submitted a request to the trial court clerk and asked that we "reset" the briefing schedule once the record was supplemented to give him another thirty days. On July 20, we sent appellant a letter stating that the trial court had not received a request for supplementation as represented in appellant's motion and gave him until July 27 to file a copy of his request to the trial court clerk.

We stated that we would allow the record to be supplemented and said, "Once the record is supplemented, your brief will be due ten days later. No further extensions will be granted." The clerk's record was supplemented on July 30, and we sent appellant notice of the supplementation on August 5. Under our July 20 letter, appellant's brief was due August 10, ten days after the record was supplemented. However, even if we allow appellant ten days after we sent our letter informing him of the supplementation, the brief was due no later than August 17.

To date, appellant has not filed his brief. We therefore dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3.

SOURCE: 03-08-00443-CV

Debt Collection Suit Results in DWOP rather than Default Judgment

Debt buyer - purported assignee of charged-off Citibank credit card debt - failed to prove up its damages in moving for default judgment -- even though it had deemed admissions in its favor -- and had its debt collection suit dismissed for want of prosecution. Dallas Court of Appeals affirms the DWOP order, along with a bevy of other affirmances in debt suits that were dismissed by couty court judge for one reason or another.

Moral: Even debt collectors have to comply with procedural requirements, including deadlines, and have to prove up their case. Victory is not to be taken for granted, even where the defendant/debtor defaults and does not answer requests for admissions. To wit:

OPINION BY JUSTICE MARTIN RICHTER

Resurgence Financial, LLC appeals the dismissal of its breach of contract suit against Freeman Taylor. In two issues, Resurgence argues the trial court erred when it dismissed the suit for want of prosecution and denied its motion for default judgment.

Because we conclude that Resurgence failed to prove it was entitled to a default judgment, we affirm the trial court's judgment.

Background

On January 4, 2007, Resurgence filed its original petition against Freeman Taylor asserting a claim for breach of contract for failure to pay a credit card account. The petition partially identified Taylor's social security number and credit card account number and stated that Resurgence had purchased the account from Citibank and was currently the owner of the account.

According to the petition, Citibank and Taylor entered into an account agreement the (“Agreement”) that allowed Taylor to receive cash advances and to purchase goods and services from merchants who honored the Citibank credit card. The petition asserted that Taylor had acquired cash and/or goods and services in accordance with the Agreement and had promised to pay for the account but had failed to do so.

Resurgence claimed it was damaged in the amount of $8,928.49, together with interest and attorney's fees as provided for in the Agreement. Resurgence specified that it was entitled to at least $2,976.16 in reasonable attorney's fees under Chapter 38 of the Texas Civil Practice and Remedies Code.

The affidavit of John Over, Resurgence's designated agent, was attached to the petition (the “Over Affidavit”). The Over Affidavit attested to the facts asserted in the petition and included a summary of Taylor's account as an attachment. The account summary reflects that Taylor's last payment was made on August 10, 2004 and the interest rate on the account is 6%. The statement shows that the total amount due is $8,928.49 as of October 31, 2006. Of this amount, $8,128.15 is designated as principal and $800.34 is designated as interest.

A request for disclosures and requests for admission were embedded in the petition. Taylor did not answer the petition or the discovery. On February 8, 2007, Resurgence filed a motion for default judgment.

The motion was supported by an attorney's fees affidavit and a non-military affidavit. On July 27, 2007, the trial court returned the default judgment unsigned with a form notice on which the court had checked off several perceived deficiencies.

The deficiencies selected by the trial court included: (1) petition does not give fair notice of claim against defendant; (2) judgment relies on cause of action not adequately pleaded; (3) damages cannot be accurately calculated, no written instrument attached to petition; (4) no evidence of sale and delivery of merchandise or performance of services; (5) no evidence that the amount of the account or price charged is in accordance with an express contract or usual, customary and reasonable; and (6) no evidence of a systemic record kept and supported by affidavit.

On August 1, 2007, Resurgence filed another motion for default judgment. The motion requested judgment on the debt owed by Taylor in the amount of $8,928.49 with interest in accordance with the Agreement and as supported by the documents attached to the original petition and the request for admissions. In further support of the requested judgment, Resurgence attached an attorney's fees affidavit and the affidavit of its designated agent. By letter dated August 6, 2007, the trial court again returned the default judgment unsigned and accompanied by the same form letter identifying the same perceived deficiencies. See Footnote 1

On August 7, 2007, the trial court issued a notice stating that the case was set for dismissal on August 24, 2007 pursuant to Rule 165a of the Texas Rules of Civil Procedure. The notice advised: If no answer has been filed, or if the answer is insufficient as a matter of law to place any of the facts alleged in your petition in issue, you will be expected to have moved for, and to have heard a summary judgment or to have proved up a default judgment on or prior to that date. Your failure to have done so will result in dismissal of the case on the above date. See Footnote 2

On August 23, 2007 and August 24, 2007, Resurgence filed trial briefs in support of its motion for default judgment. On October 1, 2007, Resurgence filed another motion for default judgment. Like the prior motions, the motion requested judgment on the debt owed by Taylor in the amount of $8,928.49 with interest in accordance with the Agreement and as supported by the documents attached to the petition and the deemed admissions. An attorney's fees affidavit and a non-military affidavit were attached to the motion. In further support of the motion, Resurgence included the Over Affidavit, which describes the sale and assignment of Taylor's account from Citibank to Resurgence, the account number, the balance owed on the account, and the date of the last payment. Attachments to the Over Affidavit included two documents entitled Bill of Sale, Assignment, and Assumption Agreement (the “Assignments”), the Citibank Card Agreement, four months of Taylor's 2004 account statements and one 2005 account statement.

The account statements reflect payments that were made on the account and applied to the outstanding balance, including the August 10, 2004 payment referenced in the Over Affidavit.

The Assignments show that certain accounts were transferred from Citibank to a limited liability company and then transferred from the limited liability company to Resurgence. Although the Assignments reference attachments that enumerate the specific accounts sold and assigned, the attachments are not included with the Assignments. Therefore, it is not possible to determine whether Taylor's account was among those sold and transferred.

The motion for default judgment was further supported by the affidavit of James Hull (the “Hull Affidavit”), counsel for Resurgence. The Hull Affidavit states that Resurgence's requests for admission were served on Taylor with the original petition as evidenced by the return of citation on file with the clerk and that Taylor failed to respond to the admissions within 50 days after service. In addition to the motion for default judgment and supporting documents, Resurgence also filed a request for a hearing on its motion for default judgment. See Footnote 3

On October 9, 2007, the trial court dismissed the case.

The reasons for dismissal stated in the dismissal notice included “failure to take action after notice of intent to dismiss” and “dismiss for want of prosecution.” This appeal followed.

Discussion

Resurgence contends the trial court erred in denying the motion for default judgment and dismissing the case for want of prosecution. On this record, we disagree.The denial of a motion for default judgment is reviewed under an abuse of discretion standard. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston [14th Dist.] 2005, no pet.). A plaintiff may seek a default judgment if the time has passed for the defendant to answer, the defendant has not answered, and the citation with the officer's return has been on file with the clerk for ten days. See Tex. R. Civ. P. 107, 239.

In a no-answer default judgment, the failure to file an answer operates as an admission of the material facts alleged in the petition, except as to unliquidated damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).

A claim for damages is liquidated if the amount of damages can accurately be calculated by the court from the factual, as opposed to the conclusory allegations in the petition and written instruments. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.); see also Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (suit to recover amount due for professional services was liquidated claim proved by written instruments where plaintiff attached original instruments to verified petition and motion for default judgment).

When damages are unliquidated, the judge must “hear” evidence on the damages. See Argyle Mech., Inc., 156 S.W.3d at 687; see also Tex. R. Civ. P. 243. In contrast, “if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and final judgment shall be rendered therefor . . . .” Tex. R. Civ. P. 241.

Here, the pleadings provide the requisite factual allegations to prove Resurgence's claim for breach of contract. Recovery under a breach of contract claim requires proof of four elements: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Orix Capital Mkts., L.L.C. v. Wash. Mut. Bank, 260 S.W.3d 620, 623 (Tex. App.-Dallas 2008, no pet.). The petition states that Taylor opened the account with Citibank, used the account to buy goods and services, promised to pay for the account, but failed to do so. The contract is further evidenced by the Agreement attached to the petition. The petition also states that Resurgence purchased the account from Citibank and is the current owner of the account entitled to payment. The Over Affidavit further attests to the sale of the account.The account is specifically identified by the partial disclosure of Taylor's social security number, the account number, and Taylor's name and address. Account statements, an account summary and supporting affidavits establish the amount due on the account as of the date of default, the date of the last payment, and the application of payments to the outstanding balance. The amount of attorney's fees for which judgment is requested is stated in the petition and supported by affidavit. The admissions provide further proof in support of a judgment. The admissions were embedded in the petition, and the record demonstrates the petition was properly served. See Footnote 4

Because Taylor failed to object or timely answer the admissions, they were deemed admitted as a matter of law. See Tex. R. Civ. P. 198.2(c). Deemed admissions may be employed as proof. Sherman Acquisition II L.P. v. Garcia, 229 S.W.3d 802, 812 (Tex. App.-Waco 2007, no pet.) (default judgment); Elkins v. Jones, 613 S.W.2d 533, 534 (Tex. Civ. App.-Austin 1981, no writ) (summary judgment). Once admissions are deemed admitted by operation of law and fully support each element of a cause of action, including damages, they will fully support a judgment thereon. Sherman, 229 S.W. 3d at 812. Answers constituting admissions of law, however, are of no effect and are not binding on the court. See Esparza v. Diaz, 802 S.W.2d 772, 775 (Tex. App.-Houston [14th Dist.] 1990, no writ); Neal v. Wis. Hard Chrome, Inc., 173 S.W.3d 891, 894 (Tex. App.-Texarkana 2005, no pet.).

By failing to answer the requests for admissions, Taylor admitted that (1) he applied for the credit card and requested that the account be opened; (2) he understood that use of the account resulted in a loan that he was obligated to pay; (3) he made purchases and took cash advances on the account; (4) the account is due; (5) the $8,928.49 balance stated in the petition is the correct amount due on the account; (6) he received monthly statements showing the amount of charges and specifying the amount due; (7) the monthly statements advised him of his right to dispute any error and he has never given any notice of an error or dispute; (8) he promised to pay for the account; (9) payment was requested but has not been made; (9) the contractual interest rate is 6% and the Agreement provides for late and over the credit limit fees; and (11) $2,976.16 is a reasonable amount of attorney's fees for the prosecution of this suit.

The petition and supporting documents give fair notice of Resurgence's breach of contract claim based on the unpaid credit card account. See Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) (fair notice standard met when opposing party can ascertain nature of the claim, basic issues, and evidence that might be relevant to the controversy). But the evidence Resurgence proffered did not provide sufficient information for the trial court to render a damage award.

There was not only insufficient information from which to calculate the interest due on the outstanding account balance, the evidence that was submitted conflicted as to the rate of interest to be charged. Specifically, the Over Affidavit and deemed admissions state that the contract rate of interest is 6%, but neglect to state whether this is computed as simple interest.

Four of the five credit card statements reflect that the periodic interest rate for purchases and advances is 0.06573%, with an annual percentage rate of 23.990%. But the 2005 statement reflects that the periodic rate is 0.06915%, with an annual percentage rate of 25.240%. The Agreement provides for a default rate of up to 24.99% and also provides for late fees to be assessed based upon the outstanding balance. Although the default rate appears to have been charged on one of the monthly statements, the other statements reflect that a different interest rate was applied.

The record reflects that the outstanding balance on the account as of October 31, 2006 was $8,928.49, but provides no definitive basis for calculating the principal and interest due beyond that point.

Because Resurgence's evidence was insufficient to support the default judgment it requested, we conclude the trial court did not err in denying the motion.

The trial court's notice required Resurgence to move for and have heard a summary judgment or prove up a default judgment by August 24, 2007. Although Resurgence filed a motion for default judgment, it failed to establish its entitlement to the judgment it requested.

Under these facts and circumstances, we cannot conclude the trial court erred in dismissing the case for want of prosecution. See Crown Asset Mgmt. LLC v. Loring, 05-07-01418-CV (Tex. App.-Dallas August 27, 2009) (holding dismissal for want of prosecution permissible when plaintiff fails to show entitlement to a default judgment by court-ordered deadline).

We affirm the trial court's dismissal order.

MARTIN RICHTER JUSTICE

Date decision handed down: August 31, 2009
Appellate Cause No.: 05-07-01492-CV
Disposition on Appeal: AFFIRM trial court's dismissal order - Docket Sheet
Resurgence Financial, LLC v. Taylor, Freeman
Opinion by: Justice Martin E. Richter
Case Type: CONTRACT (credit card debt)

DWOP Dismissal of Deficiency Suit Affirmed

In another opinion in a series of recently-decided appeals brought by debt collectors challenging a county court judge's proactive and efficient clean-up of her debt collection docket by means of DWOP warnings & orders, a panel of the Dallas Court of Appeals once more upholds the trial judge's dismissal of a collection lawsuit (with one member dissenting) - this time a deficiency suit, rather than a credit card default. Bad week for debt collectors. Shoddy pleadings and documentation combined with poor lawyering don't survive judicial scrutiny on appeal either. Time for some civil procedure CLE beyond the prescribed minimum, it appears.

TEXT OF SEP. 4, 2009 MEMORANDUM OPINION BY JUSTICE LANG-MIERS

Appellant Crown Asset Management, LLC appeals the trial court's order dismissing its breach of contract suit against Luisa and James Dunavin for want of prosecution. In two issues, Crown contends that the trial court erred by not granting its motion for default judgment and by dismissing its suit. We affirm the trial court's order.

Background

Crown sued the Dunavins to collect on an alleged deficiency of $8,090.78 after a foreclosure on unidentified collateral securing a contract. After the lawsuit was filed, the trial court sent a letter advising that the case had been placed on the dismissal docket and would be dismissed on September 14, 2007 unless Crown took one of several actions, one of which was to prove up a default judgment if no sufficient answer was filed.

The Dunavins did not answer and Crown moved for a default judgment. Various exhibits were attached to the motion, including affidavits in support of the judgment and in support of a request for attorneys' fees. On July 31, 2007, the trial court sent Crown a letter advising that it was returning the proposed default judgment unsigned because of several perceived substantive deficiencies:

* Petition does not give fair notice of claim against Defendant;
* Judgment relies on causes of action that are not adequately pleaded;
* Damages cannot be accurately calculated, no written instrument attached to petition;
* No evidence that the amount of the account or price charged is in accordance with an express contract or is usual, customary and reasonable; [and]
* No evidence of a systematic record kept and supported by an affidavit.

Crown did not respond, and on September 20, 2007, the trial court signed an order dismissing the case for two reasons: (1) “[f]ailure to take action after notice of intent to dismiss for want of prosecution (IN ACCORDANCE WITH RULE 165A LETTER)” and (2) for want of prosecution.

Analysis

Crown's Lawsuit Against Luisa Dunavin

Crown sued both James Dunavin and Luisa Dunavin, but refers to them in Crown's appellant's brief collectively as “DUNAVIN.” In its brief, Crown states that “DUNAVIN were served with process” and that “DUNAVIN never filed an answer or otherwise appeared.” There is no evidence in the record, however, demonstrating that Luisa Dunavin was served with process in accordance with the rules of civil procedure. The record does not include a citation for Luisa Dunavin or the return of service of citation on her, and there is nothing in the record demonstrating that Crown requested that these documents be included in the appellate record.

Although Texas Rule of Appellate Procedure 35.3(a) places the burden to timely prepare, file, and certify the clerk's record on the trial court clerk, “the appellant bears the burden to bring forward an appellate record that enables this Court to determine whether the appellant's complaints constitute reversible error.” Resurgence Fin., L.L.C. v. Moseley, No. 05-07-01225-CV, 2009 WL 92444, at *1 (Tex. App.-Dallas Jan. 15, 2009, no pet.) (mem. op.). “Without proper service of citation, a trial court does not have in personam jurisdiction to enter a default judgment.” Credigy Receivables, Inc. v. Holt, No. 05-07- 01577-CV, 2009 WL 679590, at *2 (Tex. App.-Dallas Mar. 17, 2009, no pet.) (mem. op.).

As a result, without evidence that Luisa Dunavin was properly served with process, we cannot conclude that the trial court erred by not granting a default judgment against her. See id.; see also Moseley, 2009 WL 92444, at *1 (“When, as here, the issues on appeal necessarily involve consideration of documents omitted from the appellate record, we must presume the missing documents support the trial court's ruling.”).

We also cannot conclude that the trial court erred by dismissing Crown's lawsuit against Luisa Dunavin for want of prosecution. The inquiry for us on appeal is whether a trial judge reasonably could have concluded that the plaintiff failed to prosecute its case with reasonable diligence. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam).

The trial court may consider the entire history of the litigation, periods of activity, intervals of inactivity, reasons for lack of attention, and the passage of time. Lopez v. Harding, 68 S.W.3d 78, 80 n.2 (Tex. App.-Dallas 2001, no pet.). Here, the trial court warned Crown that its lawsuit would be dismissed four months after it was filed if Crown did not take one of several actions after service of the petition.

In this case, the record does not demonstrate that Crown even served the petition on Luisa Dunavin. Consequently, there is no evidence that Crown took any action as to Luisa Dunavin within the time specified by the trial court. Based on the record in this case, we cannot conclude that Crown prosecuted its claim against Luisa Dunavin with reasonable diligence, or that the trial court abused its discretion when it dismissed Crown's claims against Luisa Dunavin for want of prosecution. We overrule Crown's two issues as against Luisa Dunavin.

Crown's Lawsuit Against James Dunavin

Because our record demonstrates that James Dunavin was served with process, we separately resolve Crown's two issues on appeal as to him. In Crown's second issue, it complains that the trial court erred by denying its motion for default judgment. We may consider the trial court's denial of a motion for default judgment when, as here, the denial is challenged in an appeal from a final judgment or order. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In this case, the issue is properly preserved for appellate review because the trial court's written notice about the perceived deficiencies in the motion for default judgment was an adverse ruling on the motion for default judgment. See Crown Asset Mgmt., L.L.C. v. Loring, No. 05-07-01418-CV, 2009 WL 2596101, at *1 (Tex. App.-Dallas Aug. 25, 2009, no pet. h.) (en banc).

As we explained in Loring, a trial court cannot grant a motion for default judgment if the petition does not give fair notice to the defendant of the claim asserted. Id. at *1. In its petition, Crown alleged only the following:

FACTS. In the usual course of business, funds were advanced to Defendants pursuant to a contract. To secure the payment of the contract, Defendants executed a security agreement granting a security interest in the goods described therein. Plaintiff is the owner and holder of this contract and is entitled to receive all money due under its terms.

DEFAULT. Defendants defaulted in making required payments pursuant to the contract which is the subject of this suit. Plaintiff foreclosed its security interest in the collateral, which was sold in accordance with Texas law. The balance due Plaintiff is $8090.78 after all just and lawful offsets, credits, and payments. Plaintiff has demanded that Defendants pay this amount, but Defendants have not done so.

The petition in this case does not provide any identifying information about the underlying contract, such as a loan or account number or the original lender, nor does it contain any identifying information regarding the alleged collateral or the sale of the collateral.

It is impossible to determine from the petition with whom or for what the Dunavins allegedly contracted.

Given the complete absence of even basic information, we conclude that the petition does not provide sufficient notice to James Dunavin to prepare a defense; consequently, Crown was not entitled to a default judgment. See id. at *2. We overrule Crown's second issue.

In Crown's first issue, Crown argues that the trial court erred when it dismissed Crown's suit for want of prosecution. We review a dismissal for want of prosecution for abuse of discretion. Id. A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Id.

The trial court may dismiss a case for want of prosecution under its inherent power to control its docket if the case has not been prosecuted with diligence. Id. Lack of diligence need not amount to abandonment for a case to be properly dismissed. Id.

In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Id. No single factor is dispositive. Id.

The trial court advised Crown that its case would be dismissed on September 14, 2007 if it did not prove up a default judgment before that date. After the trial court returned Crown's motion for default judgment unsigned because of numerous perceived deficiencies, Crown did not amend its motion, nor did it seek a clarification, a continuance, or any other action from the trial court. The case was dismissed on September 20.

Crown has raised no complaint regarding the default setting notice it received. Instead, Crown only generally complains that “this court could not have dismissed this case for failure to prosecute with diligence.”

Given the history of this case, and the circumstances surrounding the dismissal, we cannot conclude that the trial court abused its discretion by dismissing the case after notifying Crown of specific deficiencies in its motion for default judgment that were not corrected, particularly in light of the fact that we have determined that Crown was not entitled to a default judgment.

We overrule Crown's first issue.

Conclusion

We overrule Crown's two issues and affirm the trial court's order.

ELIZABETH LANG-MIERS
JUSTICE

FitzGerald, J., concurring in part.

TEXT OF CONCURRING [DISSENTING] OPINION BY JUSTICE FITZGERALD

I continue to believe that Crown Asset Management, L.L.C. v. Loring, No. 05-07-01416-CV, 2009 WL 2596101 (Tex. App.-Dallas Aug. 25, 2009, no pet. h.) (en banc), was wrongly decided for the reasons stated in my dissenting opinion in that case. I concur in the majority's judgment in this case with respect to Crown's claims against James Dunavin only because this panel is bound to follow the en banc decision in Loring. I join the majority opinion with respect to the analysis and disposition of Crown's claims against Luisa Dunavin.

KERRY P. FITZGERALD
JUSTICE

CASE DETAILS:
Dallas Court of Appeals Appellate Cause No. 05-07-01367-CV Docket Sheet
Style: Crown Asset Management, LLCv. Dunavin, Luisa and James
Date Filed: 10/09/2007 Date Decision and Opinion released: 9/4/2009
Case Type: OTHER CIVIL
County: DALLAS - Court: COUNTY COURT AT LAW # 1
Trial Judge: D'Metria Benson
Disposition: DWOP Dismissal Order Affirmed by Panel Majority with Concurring & Dissenting Opinion by One Justice

Dismissal of Credit Card Debt Collection Suit for Want of Prosecution Affirmed

DALLAS COURT OF APPEALS' MEMORANDUM OPINION IN DEBT COLLECTOR'S APPEAL FROM DWOP ORDER

BY JUSTICE LANG

Crown Asset Management appeals the trial court's order dismissing its lawsuit for breach of contract against Paul R. Strayhorn, Jr. Crown Asset raises two issues arguing the trial court erred when it: (1) dismissed its lawsuit for want of prosecution; and (2) denied its motion for default judgment. Strayhorn did not make an appearance in the trial court and has not filed a brief on appeal.

We conclude the trial court did not err when it dismissed Crown Asset's lawsuit or when it denied Crown Asset's motion for default judgment. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.

The trial court's judgment dismissing Crown Asset's lawsuit is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 2, 2007, Crown Asset filed its lawsuit against Strayhorn alleging breach of contract and attaching discovery requests. On August 7, 2007, the trial court sent Crown Asset a letter that stated, pursuant to Texas Rule of Civil Procedure 165a, the case was set for dismissal on November 9, 2007, at 9:00 a.m. Also, the letter stated:

If no answer has been filed, or if the answer is insufficient as a matter of law to place any of the facts alleged in your petition in issue, you will be expected to have moved for, and to have heard, a summary judgment or to have proved up a default judgment on or prior to that date. Your failure to have done so will result in the dismissal of the case on the above date.

On August 8, 2007, Strayhorn was served with the citation. However, Strayhorn failed to file an answer to the lawsuit or the discovery requests. As a result, on October 9, 2007, Crown Asset filed a motion for default judgment, indicating the damages were unliquidated and attaching an affidavit it claimed proved up those damages.

On October 12, 2007, the trial court sent Crown Asset an unsigned form letter to “Counsel of Record” that identified the cause number and stated the proposed default judgment was being returned unsigned. The Dallas County, Texas crest was at the top of the first page directly above the trial judge's name and court.

The form letter included a list of items under two separate headings, “Procedural Issues” and “Substantive Issues.” A blank space was provided to the left of each “issue.” No procedural issues were checked on the unsigned form letter. However, the following substantive issues were checked, indicating the proposed default judgment was being returned for one or more of the following reasons “concerning the motion for default judgment”:

(1) the petition did not give Strayhorn fair notice of the claim;
(2) the judgment relied on a cause of action that was not properly pleaded;
(3) the damages could not be accurately calculated and no written instrument was attached to the pleading;
(4) there was no evidence of sale and delivery of the merchandise or performance of services; (5) there was no evidence the amount of the account or price charged was in accordance with an express contract or was usual, customary and reasonable;
(6) there was no evidence of a systematic record kept and supported by an affidavit; and
(7) the requests for admissions were deficient.

The letter also stated, “it is NOT NECESSARY to re-file all the paperwork associated with the Motion for Default Judgment, only the items identified above as necessary before a Default Judgment can be signed.” The record does not show Crown Asset responded, in any manner, to the trial court's form letter.

The trial court signed a judgment dated November 9, 2007, dismissing Crown Asset's lawsuit with the following two out of seven listed grounds for dismissal marked: (1) “Failure to appear for a hearing or trial of which notice was had”; and (2) “Dismiss for Want of Prosecution.”

Crown Asset appealed.

II. JUDGMENT OF DISMISSAL AND ORDER DENYING DEFAULT JUDGMENT

In issues one and two, Crown Asset argues the trial court erred when it: (1) dismissed its lawsuit for want of prosecution; and (2) denied its motion for default judgment.

A. Applicable Law

An appellant must challenge all independent bases or grounds that fully support the trial court's judgment. See Univ. of Houston v. Barth, 265 S.W.3d 607, 615 (Tex. App.-Houston [1st Dist.] 2008, pet. filed). When a separate independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm the trial court's judgment. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977) (concluding appellant's failure to challenge separate and independent ground of recovery for negligence required judgment to be affirmed); Midway Nat'l Bank v. W. Tex. Wholesale Supply Co., 453 S.W.2d 460, 461 (Tex. 1970) (per curiam) (affirming judgment when appellant failed to attack independent legal conclusion that “fully supported” judgment); Long v. Long, 196 S.W.3d 460, 468 (Tex. App.-Dallas 2006, no pet.) (appellants did not challenge trial court's findings of fact and conclusions of law with respect to breach of contract action). An appellate court may not reverse the trial court's judgment for a reason not raised by the parties on appeal. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1983).

B. Dismissal For Want of Prosecution

In issue one, Crown Asset argues the trial court erred when it dismissed Crown Asset's lawsuit for want of prosecution. It claims it moved for a default judgment by November 9, 2007, as required by the trial court's August 7, 2007 letter. Also, it claims affirmative defenses and special exceptions are waived if not specifically pleaded. The trial court should not have raised these defenses and objections on behalf of Strayhorn in its October 12, 2007 unsigned form letter. Further, the dismissal of the suit was “arbitrary.”

The trial court's judgment dismissed Crown Asset's lawsuit for: (1) “Failure to appear for a hearing or trial of which notice was had”; and (2) “Dismiss for Want of Prosecution.” Crown Asset has not challenged a distinct ground for the trial court's judgment of dismissal, i.e., “Failure to appear for a hearing or trial of which notice was had.” Crown Asset argues only that the trial court abused its discretion when it dismissed Crown Asset's lawsuit for want of prosecution. Accordingly, we conclude the trial court did not abuse its discretion because Crown Asset has not challenged a ground for the trial court's judgment.

When a separate independent ground that supports a judgment is not challenged on appeal, the appellate court must affirm the trial court's judgment. See Nobility, 557 S.W.2d at 83; Midway Nat'l Bank, 453 S.W.2d at 461.

Issue one is decided against Crown Asset.

C. Motion For Default Judgment

In issue two, Crown Asset argues the trial court erred when it denied Crown Asset's motion for default judgment. Crown Asset argues all allegations, except for the amount of damages, were deemed admitted because Strayhorn did not answer the lawsuit. Also, it claims the trial court did not have discretion to refuse to deem the admissions because Strayhorn did not respond to its requests for admission. See Tex. R. Civ. P. 198.2(c) (if response to request for admissions not timely served, request is considered admitted without necessity of court order).

Assuming without deciding the trial court abused its discretion when it refused to deem the admissions, Crown Asset fails to challenge the other reasons the trial court denied its request for a default judgment. In addition to denying the motion for default judgment because the requests for admissions were deficient, the trial court denied the motion because: (1) the petition did not give Strayhorn fair notice of the claim; (2) the judgment relied on a cause of action that was not properly pleaded; (3) the damages could not be accurately calculated and no written instrument was attached to the pleading; (4) there was no evidence of sale and delivery of the merchandise or performance of services; (5) there was no evidence the amount of the account or price charged was in accordance with an express contract or was usual, customary and reasonable; and (6) there was no evidence of a systematic record kept and supported by an affidavit.

Accordingly, we conclude the trial court did not abuse its discretion because Crown Asset has not challenged the other grounds for the trial court's order. See Nobility, 557 S.W.2d at 83; Midway Nat'l Bank, 453 S.W.2d at 461.

Issue two is decided against Crown Asset.

III. CONCLUSION

Having decided Crown Asset's issues against it, we affirm the trial court's judgment dismissing Crown Asset's suit.

DOUGLAS S. LANG
JUSTICE

CASE DETAILS:
Decision of the Dallas Court of Appeals, Appellate Case No. 05-07-01603-CV Docket Sheet
Case Style: Crown Asset Managment LLCv. Strayhorn, Paul R. Jr. Date
Filed: 11/26/2007
Case Type: CONTRACT County: DALLAS
Court: COUNTY COURT AT LAW NO 1 - Trial Judge: Benson, D'Metria

Divorce Decree Signed After DWOP Order Found Void - Dismissal order was final and had not been appealed

PLENARY JURISDICTION HAD EXPIRED

A trial court may not dismiss for want of prosecution unless notice of the intent to dismiss is sent to each represented party's attorney and to each pro se party. Tex. R. Civ. P. 165a(1). Notice of a dismissal must be mailed to the parties immediately. See Tex. R. Civ. P. 165a(1), 306a(3). Unless a party files a timely motion that extends the trial court's plenary power, the court's plenary power expires thirty days after a judgment is signed. Tex. R. Civ. P. 329b(d).

After the court's plenary power expires, the "judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law," although the court may render a judgment nunc pro tunc to correct a clerical error and may sign an order declaring an earlier order void because it was signed after the court's plenary power had expired. Tex. R. Civ. P. 329b(f).

A judgment rendered in violation of rule or statute but signed by a court with proper jurisdiction over the cause is voidable, not void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (quoting Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990)) ("Errors other than lack of jurisdiction, such as 'a court's action contrary to a statute or statutory equivalent,' merely render the judgment voidable so that it may be 'corrected through the ordinary appellate process or other proper proceedings.'").

On July 19, 2007, the trial court signed the order dismissing the cause for want of prosecution. Regardless of whether notice was provided before or after the dismissal, the trial court had jurisdiction at the time it signed the order, and the dismissal is merely voidable. See id. The trial court lost plenary power thirty days later and thus was without jurisdiction to proceed any further as of August 20, 2007. Ms. Stepherson's inquiries and the trial court's instructions related to the motion to enforce occurred a year later.

The trial court had no jurisdiction over the case at the time it heard Mrs. Gerstacker's motion to enforce and signed the final divorce decree.

A party may file a bill of review to overturn an improper judgment within four years of the judgment's signing. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998); see Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004) (when plaintiff did not receive notice of trial court's intent to dismiss for want of prosecution, dismissal is erroneous and plaintiff is entitled to pursue reinstatement through bill of review); see also Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) ("When extrinsic evidence is necessary to challenge a judgment, the appropriate remedy is by motion for new trial or by bill of review filed in the trial court so that the trial court has the opportunity to consider and weigh factual evidence."). A bill-of-review petitioner who did not receive notice of a trial court's intent to dismiss for want of prosecution must show she was not negligent in failing to seek to retain the case on the trial court's docket. See Caldwell v. Barnes, 154 S .W.3d 93, 96 (Tex. 2004) (bill of review petitioner generally must prove (1) meritorious defense (2) that she was prevented from making by opposing party or official mistake, (3) unmixed with her own fault or negligence, but petitioner claiming non-service is relieved of first two elements).

The motion to enforce filed by Mrs. Gerstacker is not a bill of review and does not allege any of the required elements of a bill of review. See id. The motion seeks only to enforce a prior order related to child support and does not refer to the dismissal in any form.

The July 2007 dismissal order was a final, appealable order entered in this case, and because there was no notice of appeal filed within thirty days of that order, we are without jurisdiction to consider the appeal. See State ex. rel Latty, 907 S.W.2d at 486.

We therefore have no choice but to declare the divorce decree void and dismiss the appeal for want of jurisdiction.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Jurisdiction
Filed: September 4, 2009

CASE ID: 03-09-00022-CV (9/4/09)