Opinion
No. 05-08-00278-CV
Opinion issued August 24, 2009.
On Appeal from the County Court at Law No. 1 Dallas County, Texas, Trial Court Cause No. cc-04-12213-A.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
MEMORANDUM OPINION
Appellants D. Burch, Inc. ("Burch") and Millennium Restaurant Group, Inc. ("Millennium") appeal from the trial court's entry of a default judgment against them and in favor of appellee Rhonda Denise Catchings ("Catchings"). In three issues, Burch and Millennium contend the trial court erred by (1) denying them due process and abusing its discretion in denying their motion for new trial, (2) entering a judgment against Burch who was no longer before the Court as a defendant, and (3) entering a judgment in excess of $175,000 which is the maximum amount demanded through the third amended petition and entering judgment in amounts not supported by the evidence. We affirm and modify in part and reverse in part.
Background
Catchings filed a personal injury suit against Burch and Millennium. Both Burch and Millennium answered. In her second amended petition, Catchings failed to make references to Burch except in the style of the case.
After Catchings filed her third amended petition, Millennium's counsel filed a motion to withdraw and notified Millennium of its right to object to his motion. Millennium did not file an objection to its lawyer's motion to withdraw, and the trial court granted the motion in 2006. The record before us does not include another appearance of counsel on behalf of Millennium until 2008. On February 2, 2007, the trial court mailed notice of the May 21, 2007 trial setting directly to Millennium. Millennium failed to appear for the trial.
On June 18, 2007, counsel for Catchings faxed directly to Millennium a notice that the hearing on her motion for default judgment was set for June 22, 2007. Also on June 18, 2007, counsel for Catchings sent a copy of this notice to Millennium via certified mail, return receipt requested. Millennium received the certified mail on June 21, 2007. Millennium failed to appear at the hearing on the motion for default judgment.
Catchings presented the trial court with a proposed default judgment at the June 22, 2007 hearing but the trial court did not sign the default judgment until December 27, 2007. After the trial court signed the default judgment, a lawyer appeared on behalf of Millennium and filed a motion for new trial. In its motion for new trial, Millennium argued that it did not receive the notices sent to it by Catchings. The trial court denied the motion for new trial and this appeal ensued.
Analysis
We begin with appellants' second issue that the trial court erred in entering a judgment against Burch. An amended petition which omits a defendant acts as a voluntary dismissal as to that party. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972). In her brief, Catchings concedes that she dropped the allegations as to Burch in her second amended petition and that the trial court erred when it entered a judgment against Burch. We are persuaded that Catchings effectively dismissed Burch from the lawsuit at the point when she amended her pleadings and omitted all claims of liability against Burch. See Radelow-Gittens Real Property Management v. Pamex Foods, 735 S.W.2d 558, 560 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (even if a party's name remains in style of petition, that does not alter the effect of the omission of the same party from the body of the pleading). We, therefore, sustain appellants' second issue and reverse the judgment as to Burch.
We thus consider the remaining issues on appeal as to Millennium only. In the first issue, Millennium contends the trial court improperly denied its motion for new trial. A trial court's ruling on a motion for new trial will not be overturned on appeal absent an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987). To successfully obtain a new trial, Millennium was required to show: (1) the default was not intentional or a result of conscious indifference on Millennium's part, but was due to accident or mistake; (2) Millennium has a meritorious defense to Catchings's claim; and (3) the granting of a new trial would not delay or otherwise work to the injury of Catchings. Craddock v. Sunshine Bus. Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); Nichols v. TMJ Co., 742 S.W.2d 828, 830 (Tex. App.-Dallas 1987, no writ). Catchings concedes that Millennium has satisfied the second and third Craddock prongs. Therefore, we must look to the first Craddock prong to determine if the trial court properly denied Millennium's motion for new trial.
Specifically, with regard to the first prong, Millennium complains that it did not receive notice of the June 22, 2007 hearing and thus the default was not intentional or a result of conscious indifference. When a defendant does not receive notice of a post-answer default judgment proceeding, it is deprived of due process. LBL Oil Co. v. Int'l Power Srvcs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (citing Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80 (1988)). However, the law presumes a trial court will hear a case only after proper notice to the parties. Jones v. Tex. Dept. of Public Safety, 803 S.W.2d 760, 761 (Tex. App.-Houston [14th Dist.] 1991, no writ). To rebut this presumption, Millennium has the burden to affirmatively show lack of notice. Id. (citing Williams v. Holley, 653 S.W.2d 639, 641 (Tex. App.-Waco 1983, writ ref'd n.r.e.)).
The trial court serves as fact finder at a hearing on a motion for new trial and, accordingly, is the sole judge of the witnesses' credibility. Hanners v. State Bar of Texas, 860 S.W.2d 903, 908 (Tex. App.-Dallas 1993, no writ). As evidence in favor of its motion for new trial, Millennium attached the affidavit of Steve Craft, Vice President of Millennium. In his affidavit, Craft states, "Based upon the docket sheet, there was apparently another hearing held on June 22, 2007. Again, neither Defendant received any notice of this hearing or they would have appeared." No additional evidence was provided by Millennium to support its claim that it did not receive notice of the June 22 hearing. The trial court's record also contains evidence that notice of the hearing was provided to Millennium. In the affidavit of Jeffrey J. Beltz, trial attorney for Catchings, Beltz states:
On June 18, 2007, I had delivered to each Defendant, via certified mail with return receipt requested, a notice of the hearing set for June 22, 2007, at 2:00 p.m. . . . . The notice sent to Defendant Millennium Restaurant Group, Inc. was received by Defendant on June 21, 2007. . . . Additionally, I faxed a copy of both notices to Defendant on June 18, 2007.
Attached to Beltz's affidavit are the following documents: (1) a June 18, 2007 notice letter addressed to Craft on behalf of Millennium which notifies Millennium of the June 22, 2007 hearing; (2) a fax confirmation sheet sent to Craft dated June 19, 2007; (3) a green card addressed to Craft on behalf of Millennium with a mailing number that matches the number on the notice letter and a signature confirming delivery; (4) a certified mail receipt with a mailing number that matches the number on the notice letter and addressed to Craft on behalf of Millennium; and (5) a printout of an online confirmation sheet from the United States Post Office that states the certified mailing that matches the mailing number contained in the notice letter was delivered to Millennium at 2:16 p.m. on June 21, 2007.
Under Rule 21a of the rules of civil procedure, all notices, other than citation, may be served by delivering a copy to the party either in person, by agent, or by certified or registered mail, at the party's last known address. Tex. R. Civ. P. 21a; Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.-Houston [1st Dist.] 1997, pet. denied). Rule 21a creates the presumption that a mailed letter, properly addressed and with postage paid, is received by the addressee. Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). Millennium does not contend that the notices were improperly addressed or that postage was not paid by Catchings. Thus, we conclude the record contains some evidence that proper notice was given. See Osborn, 961 S.W.2d at 411. Millennium has failed to overcome the presumption that it was notified of the trial setting. Therefore, the trial court did not abuse its discretion by implicitly finding that Millennium received notice. Therefore, the first Craddock prong is not met, and we overrule Millennium's first issue. See Craddock, 133 S.W.2d at 126.
Millennium does not challenge the timeliness of the notice and, thus, we do not consider it here. See Tex. R. Civ. P. 245.
In its third issue, Millennium argues the trial court erred as a matter of law in entering a judgment in excess of $175,000 and erred in entering judgment in an amount not supported by the evidence. Any judgment rendered by the trial court must be in conformity with the pleadings. Tex. R. Civ. P. 301; Simon v. BancTexas Quorum, N.A., 754 S.W.2d 283, 286 (Tex. App.-Dallas 1988, writ denied) (judgment cannot grant more damages than pleaded). In her third amended petition, Catchings states she has suffered damages in the total amount of $175,000. Yet, the default judgment awards Catchings over $230,000. Catchings concedes the trial court's judgment should be modified to limit the actual damages awarded to $175,000. We agree that any judgment rendered in favor of Catchings should not exceed $175,000. See Simon, 754 S.W.2d at 286.
Thus, we turn to the second part of Millennium's issue to determine whether the amount awarded is supported by the evidence. To reverse an award of damages on insufficiency of the evidence grounds, the Court must find that the evidence supporting the award is so weak as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). In reviewing an insufficiency of the evidence challenge, the court of appeals must first consider, weigh, and examine all of the evidence which supports and that which is contrary to the fact finder's determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989) (per curiam).
In this case, the default judgment divided the award of damages into the following categories: (1) physical pain and mental anguish in the past; (2) physical pain and mental anguish in the future; (3) physical impairment in the past; (4) physical impairment in the future; (5) lost earning capacity in the past; (6) lost earning capacity in the future; (7) reasonable and necessary medical expenses in the past; (8) reasonable and necessary medical expenses in the future; (9) physical disfigurement in the past; and (10) physical disfigurement in the future.
The process of awarding damages for amorphous, discretionary injuries such as pain and suffering or mental anguish is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.-Texarkana 2002, no pet.). The presence or absence of pain, either physical or mental, is an inherently subjective question because the process is not readily susceptible to objective analysis. Dawson v. Briggs, 107 S.W.3d 739,751 (Tex. App.-Fort Worth 2003, no pet.). Accordingly, the trier of fact is given broad discretion when determining such damages. Southwest Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 951-52 (Tex. App.-San Antonio 1997, no writ).
During the hearing on the motion for default judgment, Catchings offered various exhibits, including documents concerning her injury, income tax returns, and the deposition transcript of her orthopedic surgeon. Catchings also testified at the June 22, 2007 hearing. With regard to her damages, the evidence demonstrates, in pertinent part, as follows:
*Catchings incurred fractures to her right leg (breaking her fibula and tibia). At the time of the accident, bone was protruding from the skin.
*Due to her injuries, Catchings was transported to Parkland Hospital via ambulance. The ambulance service billed Catchings $593.03 for the service.
*The head of orthopedic trauma at Baylor was on call that day and performed surgery on Catchings. In surgery, he inserted a nail into her knee and a rod into her lower leg. Parkland charged her $14,229.50 for the surgery and related services.
*The surgeon testified that the recovery time for such surgery is generally six to ten months or longer.
*The surgeon also indicated future surgeries may be required to remove the screws on the intramedullary nail from Catchings's leg and that those future surgeries would cost between $2,000 and $6,000. The recover time for such a surgery would be a year or longer.
*UT Southwestern Medical Center also charged Catchings for medical expenses incurred as a result of this injury in the amount of $5,998.50.
*Catchings testified that her injuries caused her severe pain. Her surgeon testified she would likely suffer from some pain as a result of surgery for the rest of her life.
*Catchings was unable to walk for three months following the surgery. She was unable to drive and relied upon taxis for transportation. Her car was repossessed because she was unable to make the payments. Her physical limitations forced her to move into a ground floor apartment. She required assistance getting dressed, bathing, and eating.
*She is unable to do the same amount of physical activity as she was prior to the accident. Catchings also testified that she has been unable to earn the amount of money she was able to earn prior to the accident.
*Catchings testified that she suffered from mental anguish, including depression, anxiety and worry.
*Her leg is permanently disfigured.
*The injuries caused Catchings to lose income. She was unable to work for three months. She estimates that, at the time of the accident, her income was between $12,000 and $13,000 per month. When she did return to work, she was only able to work three or four days a week, less than the six days a week she had been working prior to the accident. Her income has been "considerably less" since the accident.
Based on Catchings's testimony and other documents contained within the record, we hold that the evidence is sufficient to support an award of $175,000 as requested in Catchings's third amended petition. Cain, 709 S.W.2d at 176. Therefore, we affirm the trial court's judgment against Millennium and modify the award to equal $175,000. See Simon, 754 S.W.2d at 286.
In summary, we reverse the judgment of the trial court as to Burch. We affirm the judgment of the trial court as to Millennium and modify the judgment to reflect an award of $175,000 to Catchings.