Opinion
No. 05-07-01528-CV
Opinion Filed January 29, 2009.
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. TX-07-30001.
Before Justices WRIGHT, RICHTER, and LANG.
Opinion By Justice LANG.
MEMORANDUM OPINION
Following a bench trial, Dorothy Mae Blair appeals from a judgment against her in a lawsuit initiated by appellees, a group of taxing entities, to collect delinquent ad valorem taxes and related amounts. Appellant asserts four issues on appeal. In her first and second issues, appellant challenges the legal sufficiency of the evidence to support the judgment. In her third issue, appellant argues the trial court erred by overruling her motion for continuance after dismissing her representative, striking her answers, and granting a default judgment without giving her the opportunity to defend herself or find other representation. Finally, in her fourth issue, appellant asserts error by the trial court in "striking" her answers and granting a "`no-answer' default judgment."
Appellees in this case are the following entities: Dallas County, City of Dallas, Dallas Independent School District, Parkland Hospital District, Dallas County Community College District, and Dallas County School Equalization Fund.
For the reasons below, we decide in favor of appellant on her fourth issue. We need not reach appellant's other issues. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. We reverse the trial court's judgment and remand this case to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellees filed this suit against appellant on January 5, 2007 based on alleged non-payment of ad valorem property taxes on certain real property in Dallas County. Attached to appellees' petition was a "Delinquent Tax Statement" addressed to "BLAIR LULA B WESLEY." (emphasis original). A document titled "Answer" was filed on March 16, 2007. That document asserted, in relevant part, as follows:
COMES NOW, DOROTHY MAE BLAIR, Defendant herein, and files this her original answer, and would respectfully show the Court the following:
I.
Defendants deny each and every, all and singular, the allegations contained in the Plaintiff's Original Petition and demands [sic] strict proof thereof.
WHEREFORE PREMISES CONSIDERED, Defendants pray that all relief prayed for by Plaintiff's [sic] be denied. Defendants pray for general relief.
(emphasis original). The answer was signed by appellant's daughter, Lula Westbrook. Beneath Westbrook's signature, the phrase "pro se" was typed. Under that phrase appeared an address, a phone number, and the following: " DOROTHY MAE BLAIR, BY: LULA WESTBROOK, POWER OF ATTORNEY." (emphasis original).
On August 13, 2007, appellees filed a motion to strike the March 16, 2007 answer. In the motion, appellees contended Westbrook was not an attorney and had no power to represent appellant's interests. Therefore, appellees argued, "[t]he answer filed on behalf of Dorothy Mae Blair, by Lula Westbrook, Power of Attorney, is a nullity and should be stricken."
The case was called to trial on October 8, 2007. A handwritten document titled "Amended Answer" was filed that day, prior to a pretrial hearing on appellees' August 13, 2007 motion to strike. The amended answer was signed by Westbrook and contained the same notations under the signature as the March 16, 2007 answer. Attached to the amended answer was a handwritten document dated October 8, 2007, that stated Westbrook had "power of attorney" to act on behalf of appellant. That attached document stated the following: To Whom it May Concern:
The amended answer identified the parties and the case and asserted as follows:
Comes now, Dorothy Mae Blair, Defendant herein, Freedom of Information Foi request to announce passed be cognizant and files this her amended answer background information treated be cognizant and would respectfully show the Court the following:
Lula Westbrook my Attorney-in-Fact continues to have full power and authority to do and perform all and every act for me in my Name Place and Stead and for my use and benefit.
Sincerely,
Dorothy Mae Blair
The March 16, 2007 original answer did not contain or have attached a "power of attorney" or document similar to that attached to the amended answer.
On October 8, 2007, before the trial court actually called the case for trial, appellees' motion to strike was addressed by the trial court. Following an objection by appellees to the amended answer, Westbrook attempted to appear on behalf of appellant. The trial judge asked Westbrook to prove her power of attorney. Westbrook stated the actual power of attorney had not been filed, but explained to the trial judge her mother had given a signed statement referring to the "power of attorney" attached to the amended answer. Further, Westbrook stated that if the amended answer "was not going to be accepted," she moved for a continuance. The trial judge stated he could not accept the amended answer as a pleading because "amended pleadings can't be filed within seven days of trial." The trial judge granted "the motion to strike the answer" and denied Westbrook's request for a continuance. Trial commenced immediately thereafter, without any appearance being noted for appellant. Appellees offered into evidence certified tax records and an agreement purporting to distribute the property of appellant's father, Wesley Blair, among his heirs after his death. Those documents were admitted into evidence by the trial court and judgment was granted in favor of appellees on October 8, 2007. This appeal was timely filed.
The portion of the record of the October 8, 2007 pretrial proceeding relevant to appellees' objection to the amended answer is as follows:
[COUNSEL FOR APPELLEES]:
Your Honor, I think before the Court is a motion to strike the answer. And I would also object to this amended answer. The defendant in this case is the-I'm sorry.
[WESTBROOK]:
That's okay. They're the same thing, just —
[COUNSEL FOR APPELLEES]:
Okay. The instant lawsuit was filed for collection of delinquent ad valorem taxes. A Dorothy Mae Blair by Lula Westbrook, power of attorney, filed on behalf of Dorothy Mae Blair. However, it appears that Mrs. Blair-I'm sorry-that Mrs. Westbrook is trying to appear on behalf of Mrs. Blair, and so we would ask the Court to strike that answer. She's not an attorney.
[WESTBROOK]:
Your Honor, Your Honor.
THE COURT:
Yes.
[WESTBROOK]:
May I speak?
THE COURT:
Yes.
[WESTBROOK]:
Okay. I disagree with that. I am pro se. The defendant is my mother. I have power of attorney and have had since, I believe, `81 or `84. I can't remember exactly.
Following is the transcript of that exchange from the record:
THE COURT:
Okay. At this point —
[WESTBROOK]:
Yes.
THE COURT:
— since there's a motion to strike answer-and you said you had an amended answer. Where is that, please?
[WESTBROOK]:
This is the amended.
THE COURT:
You need to prove to me your power of attorney.
[WESTBROOK]:
Okay. We did not file the power of attorney. We have the power of attorney. In the back-my mother does not want that released, but she gave us a statement in the very last sheet and signed it. And if this is not going to be accepted, then I move for a continuance where we could have that document, because I did not know.
THE COURT:
Well —
[WESTBROOK]:
We have the power of attorney.
The portion of the record reflecting the trial judge's refusal of the amended answer is as follows:
THE COURT:
— you knew-you knew the motion to strike answer was pending, right? You knew it was set for today on the trial?
[WESTBROOK]:
I thought that this-when-when it-a motion to strike —
THE COURT:
Right.
[WESTBROOK]:
— on the original.
THE COURT:
Yes.
[WESTBROOK]:
This is an amended, so —
THE COURT:
Right.
[WESTBROOK]:
— I didn't see that as the same thing.
THE COURT:
All right. You understand that pleadings-amended pleadings can't be filed within seven days of trial? You understand that?
[WESTBROOK]:
No, I did not.
THE COURT:
So I can't accept this as a pleading because trial is set —
[WESTBROOK]:
Can we move for continuance?
THE COURT:
You can. Whether I do —
[WESTBROOK]:
I move for continuance.
THE COURT:
Whether I do that or not is up to me —
[WESTBROOK]:
Oh, okay.
THE COURT:
— up to me at this point.
[WESTBROOK]:
I understand.
The record on appeal includes an October 8, 2007 written order granting appellees' motion to strike appellant's March 16, 2007 answer. The record does not show a written order regarding the October 8, 2007 amended answer or a ruling by the trial court on appellees' objection to the amended answer.
The record shows the following exchange regarding the granting of "the motion to strike the answer" and the denial of Westbrook's request for a continuance: THE COURT:
So if you were to be granted a continuance —
[WESTBROOK]:
Yes.
THE COURT:
— are you telling me you're going to get it all paid, or are you telling me you-what-what would —
[WESTBROOK]:
I'm telling you we have a case. I'm telling you we have a case. We do not owe the amount of money that they're saying that we-that she owes.
THE COURT:
Well, based on the evidence in front of me, I have to grant the motion to strike the answer. And if plaintiff chooses to go forward —
[WESTBROOK]:
May I ask another question, please?
THE COURT:
The continuance is denied also. And if plaintiff chooses to go forward, that's their choice. You can ask another question, sure.
[WESTBROOK]:
Okay. Could you tell me why you would not grant continuance when everything here that we have to go forward, we had filed-we had requested freedom of information from the plaintiffs. None of the information was given to us. Even if we-if she were here, we could not announce ready.
THE COURT:
Okay.
[WESTBROOK]:
So I'd like to understand why.
THE COURT:
Because things-proper requirements under the civil procedure rules have not been done and, therefore, I have to —
[WESTBROOK]:
Proper procedures?
THE COURT:
The proper procedure or rules have not been followed, so —
[WESTBROOK]:
We're-we're-we're not —
THE COURT:
— therefore, I have to grant it.
[WESTBROOK]:
I understand.
THE COURT:
Also, at this point, I have to ask you to step behind the bar because your answer has been stricken and you don't have authority to speak for her any longer.
[WESTBROOK]:
Okay. But could I ask a question as myself?
THE COURT:
No, ma'am.
[WESTBROOK]:
Nothing?
THE COURT:
No.
[WESTBROOK]:
Okay.
THE COURT:
Thank you.
[WESTBROOK]:
So what-what will occur from here?
THE COURT:
I don't know. It's up to counsel.
[WESTBROOK]:
Oh. Thank you.
II. REFUSAL OF THE AMENDED PLEADING
In her fourth issue, appellant asserts the trial court erred in "striking" her answers and "granting a `no-answer' default judgment." We construe this issue to contend, in part, the trial court erred in refusing the October 8, 2007 amended answer. See Tex. R. App. P. 38.1(f) ("The statement of an issue or point [in an appellant's brief] will be treated as covering every subsidiary question that is fairly included."). We begin by addressing that contention.
A. Standard of Review
We review a trial court's decision to deny or allow an amended pleading under an abuse of discretion standard. Graham v. Adesa Tex., Inc., 145 S.W.3d 769, 775 (Tex.App.-Dallas 2004, pet. denied) (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990)). A trial judge abuses his discretion when he acts arbitrarily or unreasonably without reference to any guiding rules or principles. See G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542 (Tex.App.-Dallas 2005, no pet.).
B. Applicable Law
Texas Rule of Civil Procedure 63, titled "Amendments and Responsive Pleadings," provides in relevant part [A]ny pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposing party.
Tex. R. Civ. P. 63. In accordance with rule 63, a trial judge has no discretion to refuse an amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment. Greenhalgh, 787 S.W.2d at 939; Landry's Seafood House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 435 (Tex.App.-Dallas 2007, pet. denied); see also KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 (Tex.App.-Dallas 2003, no pet.) (Texas law favors liberal amendment of pleadings and affording litigants opportunity to cure defects in pleadings whenever possible). The burden of showing prejudice or surprise rests on the party resisting the amendment. Greenhalgh, 787 S.W.2d at 939; see also Hakemy Bros., Ltd. v. State Bank and Trust Co., Dallas, 189 S.W.3d 920, 924 (Tex.App.-Dallas 2006, pet. denied); G.R.A.V.I.T.Y. Enters., Inc., 177 S.W.3d at 542; Graham, 145 S.W.3d at 775. However, a trial judge "may conclude that an amendment would reshape the cause of action, prejudice the opposing party, and unnecessarily delay the trial." Greenhalgh, 787 S.W.2d at 940. In such a situation, the opposing party's objection is sufficient to show surprise. Id.; see also Hakemy Bros., 189 S.W.3d at 924.
C. Application of Law to Facts
Appellees do not specifically address the trial court's refusal of the October 8, 2007 amended answer in their brief before this Court. We construe appellant's offer to the trial court of the amended answer as a request for "leave" pursuant to rule 63. See Goswami v. Metro. Sav. and Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988) (liberal interpretation given to rule 63). The trial judge stated on the record the amended answer was not allowed because he could not allow an amended answer filed within seven days of trial. However, that alone is not a reason to strike an amended pleading consistent with the requirements of rule 63.
The record does not show appellees presented "evidence of surprise or prejudice," as required by rule 63, regarding the amended answer. See Greenhalgh, 787 S.W.2d at 939. Further, the record does not show the amended answer asserted "a new cause of action or defense." See id.; Landry's Seafood House-Addison, 233 S.W.3d at 435. Rather, the trial judge stated only that he could not accept the amended answer because it was filed within seven days of trial. Accordingly, on this record, we conclude the trial court abused its discretion by refusing the October 8, 2007 amended answer. See Chapin Chapin, Inc. v. Tex. Sand Gravel Co., Inc., 844 S.W.2d 664, 665 (Tex. 1992) (where changes in amended answer were procedural and did not change substantive issue for trial, trial court abused its discretion by refusing to allow party to amend answer); Graham, 145 S.W.3d at 776 (trial court erred in denying leave to file amended petition where amended petition did not "reshape" cause of action so as to prejudice defendants or cause undue delay, and defendants failed to present evidence of unfair surprise).
A letter from a pro se litigant identifying the parties, the case, and the defendant's current address has been deemed sufficient to prevent a no answer default judgment. Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992); see also Hock v. Salaices, 982 S.W.2d 591, 593 (Tex.App.-San Antonio 1998, no pet.) (granting default judgment against defendant who has attempted to acknowledge or dispute pending lawsuit is inconsistent with judicial goals default judgment seeks to further). We note the handwritten attachment to the amended answer, which states Westbrook has power of attorney to act on behalf of appellant, appeared to manifest an intent by appellant to answer. Texas Rule of Civil Procedure 45 provides in part "[a]ll pleadings shall be construed so as to do substantial justice." Tex. R. Civ. P. 45(d). However, we expressly make no comment as to the validity of the amended answer. It was the timeliness of the amended answer, not the sufficiency of the amended answer, that was the expressed reason for striking the amended answer.
Texas Rule of Appellate Procedure 44.1(a) provides
No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to the court of appeals.
Tex. R. App. P. 44.1(a). The Texas Supreme Court has recognized "the impossibility of prescribing a specific test" for harmless error review, as the standard "is more a matter of judgment than precise measurement." Reliance Steel Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008). A reviewing court must evaluate the "whole case." Id.
Here, the record shows the trial court's refusal of the amended answer precluded appellant from proceeding in her effort to enter a proper appearance and participate at trial. After a trial in which appellant did not participate, the trial court entered judgment in favor of appellees. Therefore, we conclude the trial court's refusal of the amended answer constituted reversible error. See Tex. R. App. P. 44.1(a); cf. Taylor v. Taylor, 254 S.W.3d 527, 535 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (sanction that precluded party from effectively presenting merits of his defense "probably caused the rendition of an improper judgment" pursuant to rule 44.1(a) and thus required reversal).
III. DISPOSITION OF THE APPEAL
In her first and second issues, appellant asserts the evidence was legally insufficient to support the trial court's judgment because (1) the identity of the owner on the tax roll does not match the identity of the defendant, and the taxing entities offered no other evidence the defendant owes delinquent taxes; and (2) there was no evidence required notices were "delivered" as required by the tax code. We recognize the legal sufficiency challenges raised by appellant in her first and second issues are "points calling for rendition of judgment." See Lone Star Gas Co. v. R.R. Comm'n of Tex., 767 S.W.2d 709, 710 (Tex. 1989) ("Prior to ordering a remand, points calling for rendition of judgment should be considered."); see also Tex. R. App. P. 43.3. However, even if appellant's first or second issues were sustained, resolution of those issues would not result in greater relief for appellant, in this case, than that afforded by our resolution of the error addressed above with respect to appellant's fourth issue. See Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex.App.-Houston [1st Dist.] 2008, no pet.). That is, we would still remand, rather than reverse and render, if we sustained either of appellant's legal sufficiency issues because the trial court's error in refusing the amended pleading likely "prevented this case from being properly developed and presented at trial." Id.; see also Armstrong v. Benavides, 180 S.W.3d 359, 364 (Tex.App.-Dallas 2005, no pet.) (where appellate court sustains legal sufficiency challenge in default judgment case, remand to trial court is proper because facts have not been fully developed); Tex. R. App. P. 43.3(b).
Regardless of the sufficiency of the evidence presented by appellees, we conclude justice would be best served by remanding this case. See Scott Bader, 248 S.W.3d at 822; Tex. R. App. P. 43.3. Therefore, we do not address appellant's first or second issues. See Lone Star Gas, 767 S.W.2d at 711 ("the rules [of appellate procedure] do not require or contemplate advisory opinions on issues not essential to the final disposition of a case").
IV. CONCLUSION
To the extent appellant asserts the trial court erred in refusing the October 8, 2007 amended answer, we resolve appellant's fourth issue in her favor. We need not address appellant's other issues. We reverse the trial court's judgment and remand this case to the trial court for further proceedings in accordance with this opinion. See Tex. R. App. P. 43.2(d).
I.
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