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