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Crown Asset Mgmt. v. Hernandez

Court of Appeals of Texas, Fifth District, Dallas
Oct 22, 2008
No. 05-07-01392-CV (Tex. App. Oct. 22, 2008)

Summary

noting that superseded original petition was no longer part of pleadings in case

Summary of this case from Manning v. Jones

Opinion

No. 05-07-01392-CV

Opinion issued October 22, 2008.

On Appeal from the County Court at Law No. 1 Dallas County Texas, Trial Court Cause No. cc-07-02696-A.

Before Justices MORRIS, WHITTINGTON, and O'NEILL.


MEMORANDUM OPINION


This appeal follows the trial court's order dismissing for want of prosecution Crown Asset Management, L.L.C.'s lawsuit against Rebecca Hernandez. In two issues, Crown contends the trial court abused its discretion in denying its motion for default judgment and by dismissing its lawsuit. We affirm the trial court's dismissal order. On February 21, 2007, Crown sued Hernandez to collect an alleged deficiency of $13,742.70 after a foreclosure on the collateral securing a retail sales installment loan. Hernandez was served with Crown's original petition on March 17, 2007 but failed to file an answer or otherwise respond to the lawsuit. Crown moved for a default judgment on April 23, 2007 and later filed an amended affidavit to support the default judgment. On July 12, 2007, the trial judge sent Crown a letter advising it of certain deficiencies she perceived in its motion for default judgment that had to be addressed before she would sign a default judgment. On July 18, 2007, Crown filed a first amended original petition. The trial court sent Crown a letter on August 15, 2007 advising that the case would be dismissed on September 14, 2007 unless, on or before that date, Crown either (1) moved for and had a hearing on a motion for summary judgment or (2) proved up a default judgment. Hernandez was served with the amended petition on August 16, 2007. The trial court signed an order dismissing the case without prejudice on September 20, 2007.

We first address Crown's complaint that the trial court erred in denying its motion for default judgment. Crown asserts that it supplied evidence to support all of the elements of a breach of contract action in its first amended original petition. But Crown never moved for a default judgment based on its amended petition. The only motion for default judgment in our record was filed in connection with Crown's original petition. Upon the filing of its first amended original petition, however, Crown's original petition was superceded and no longer part of the pleadings in the case. See Tex. R. Civ. P. 65. Thus, Crown's motion for default judgment addressed allegations found in a dead pleading. Because Crown did not move for a default judgment on its live pleading, its first amended petition, the trial court did not err in refusing to grant a default judgment in this case. Crown also challenges the trial court's dismissal order.

We review a dismissal for want of prosecution under an abuse of discretion standard. See Vann v. Brown, 244 S.W.3d 612, 614 (Tex.App.-Dallas 2008, no pet.). After Crown filed its first amended original petition, the trial court sent its August 15 letter informing Crown its case would be dismissed on September 14, 2007 unless, on or before that date, it either moved for and have heard a motion for summary judgment or prove up a default judgment. Crown did neither before the date set by the trial judge. Under these facts and circumstances, we cannot conclude the trial court abused its discretion in dismissing the case for want of prosecution. We affirm the trial court's judgment.


Summaries of

Crown Asset Mgmt. v. Hernandez

Court of Appeals of Texas, Fifth District, Dallas
Oct 22, 2008
No. 05-07-01392-CV (Tex. App. Oct. 22, 2008)

noting that superseded original petition was no longer part of pleadings in case

Summary of this case from Manning v. Jones
Case details for

Crown Asset Mgmt. v. Hernandez

Case Details

Full title:CROWN ASSET MANAGEMENT, L.L.C., Appellant v. REBECCA HERNANDEZ, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 22, 2008

Citations

No. 05-07-01392-CV (Tex. App. Oct. 22, 2008)

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