Opinion
NO. 09-11-00260-CV
04-05-2012
DAVID QUINTON GRANT AND DAVID LYNN GRANT, Appellants v. TONI THOMAS AND TONY BAILENTIA, Appellees
On Appeal from the County Court at Law No. 1
Jefferson County, Texas
Trial Cause No. 117925
MEMORANDUM OPINION
In this restricted appeal, David Lynn Grant and David Quinton Grant appeal a no-answer default judgment awarding damages to Toni Thomas and Tony Bailentia for injuries sustained in an automobile collision.
Factual and Procedural Background
Appellees filed suit on February 3, 2011. On February 22, 2011, citations were filed with a return indicating both appellants were served with the petition. Appellants failed to file an answer. Appellees requested the court to enter a default judgment. At the default judgment hearing, appellees testified that appellant, David Quinton Grant, ran a stop sign, and collided with a vehicle in which they were passengers. Because of the accident, Toni Thomas received a back injury and an injury to her right knee. She testified that she still suffers pain from both injuries and is under a physician's care. She testified it appears she will continue to have pain in the future from these injuries. As a result of the accident, Tony Bailentia also received injuries to his back. He explained that he suffers from three pinched nerves, which cause numbness in both his feet. He testified that his physicians have been unable to heal his injuries and as a result, he anticipates that his pain would continue into the future. The trial court awarded appellees each $25,000 in unliquidated damages resulting from the collision.
Restricted Appeal
In a restricted appeal, a party can prevail only if the party establishes: (1) it filed notice of the appeal within six months after the trial court signed the judgment, (2) it was a party to the underlying lawsuit; (3) the party did not participate in the trial, did not timely file any postjudgment motions, and did not request findings of fact and conclusions of law; and (4) the error complained of is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The "face of the record" includes all of the papers on file in the appeal, including the clerk's and reporter's record at the time of the default judgment. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Laas v. Williamson, 156 S.W.3d 854, 857 (Tex. App.—Beaumont 2005, no pet.). The only issue in this restricted appeal concerns whether error is apparent on the face of the record.
Appellants appear to contest their liability by arguing that they did not run into appellees' vehicle, but rather the vehicle in which appellees were passengers, ran into the vehicle driven by David Quinton Grant. A default judgment on an unliquidated claim admits all allegations of fact alleged in the petition except the amount of damages. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984); see also Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). Because appellants failed to answer the petition, the trial court awarded appellees a default judgment; therefore, all assertions made in the appellee's petition are thus admitted as fact. Appellants do not contest the evidence supporting the causal nexus between the collision and appellees' alleged injuries, nor do they contest the evidence presented in support of the trial court's award of unliquidated damages.
In their petition, appellees alleged that David Quinton Grant negligently ran a stop sign and collided with the vehicle in which appellees were passengers. Appellees further alleged they received injuries that were proximately caused by this negligent act. Appellees alleged that David Lynn Grant owned the vehicle operated by David Quinton Grant and had negligently entrusted his vehicle to a reckless driver. Both appellees alleged physical pain and suffering in the past and future, as well as mental anguish in the past and future. We find that appellants' failure to file an answer to appellee's petition conclusively established their liability.
Appellants further argue that they are entitled to a new trial because their failure to file an answer was due to their lack of understanding of the legal terms used in the papers that were served them. There is no evidence in the record that appellants did not understand the documents they received, nor is there any evidence that they tried in any way to get help in understanding the documents or citations. Moreover, the citations informed appellants that they had been sued, and that they must answer the suit or risk a default judgment. We find appellants' argument without merit. See In re R.R., 209 S.W.3d 112, 115 (Tex. 2006). Further, because a restricted appeal is limited to error apparent on the face of the record, we have no latitude to review any issue related to the facts and circumstances surrounding appellants' alleged misunderstanding of the citations they received.
Having concluded that no error appears on the face of the record, we affirm the trial court's default judgment.
AFFIRMED.
CHARLES KREGER
Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.