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
-------------------
Footnote 1 We note that the appellate record contains no order
authorizing the use of substituted service of process.
-------------------
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
No comments:
Post a Comment