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
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment