Opinion
No. 05-17-00307-CV
05-07-2018
FRANK KRAWIEC, INDIVIDUALLY AND D/B/A FRANK'S PERFECT PAINTING AND REMODELING, Appellant v. KEVIN HOLT, Appellee
On Appeal from the County Court at Law No. 2 Dallas County, Texas
Trial Court Cause No. CC-16-04250-B
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Boatright
Frank Krawiec, individually and doing business as Frank's Perfect Painting and Remodeling, brings this pro se restricted appeal from a no-answer default judgment. Kevin Holt sued Krawiec for injuries sustained while working for Krawiec. He asserted claims for negligence and gross negligence, and sought actual and punitive damages. Attempts to serve Krawiec were unsuccessful so the trial court ordered that Krawiec be served by substituted service. When Krawiec failed to answer, the trial court granted Holt's motion for default judgment, awarding Holt all the relief sought except for punitive damages. Krawiec filed an untimely motion for new trial, followed by an untimely notice of appeal. On May 9, 2017, this Court ordered that Krawiec's appeal would proceed as a restricted appeal.
DISCUSSION
To obtain a reversal in a restricted appeal, four elements must be satisfied: (1) a notice of restricted appeal must be filed within six months of the date of the judgment; (2) by a party to the suit; (3) who did not participate in the trial or hearing that resulted in the judgment and who did not file a timely postjudgment motion; and (4) error must be apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The record clearly establishes the first three elements; therefore, we only need to determine if Krawiec has shown error on the face of the record. The record for these purposes consists of all the papers before the trial court at the time the judgment was rendered. Champion v. Estlow, 456 S.W.3d 363, 364 (Tex. App.—Austin 2015, pet. denied).
Krawiec raises four issues on appeal. In his first issue, Krawiec complains that none of Holt's three motions for default had a certificate of service showing that a copy of the motion had been served on Krawiec. Once a defendant in a no-answer default case is served with process, he has received all the notice to which he is entitled. Cont'l Carbon Co. v. Sea-Land Serv., Inc., 27 S.W.3d 184, 188-89 (Tex. App.—Dallas 2000, pet. denied). The record confirms that Krawiec was served with citation and the petition. Therefore, Holt was not required to notify Krawiec before taking a default judgment.
Krawiec complains that Holt served documents on attorney Dane Butzer, even though Butzer did not enter an appearance in the lawsuit as Krawiec's attorney. Krawiec concedes that after receiving the petition, he contacted Butzer to represent him in the lawsuit, and Butzer called Holt's attorney to discuss the case. Despite phone calls and an email from Holt's attorney encouraging him to file an answer, Butzer did not enter an appearance or file an answer on behalf of Krawiec. Regardless, the record does not contain any documents with certificates indicating they were served on Butzer. This complaint presents nothing for our review.
Krawiec argues that the trial court abused its discretion by not holding an evidentiary hearing on Holt's motion for default judgment. He suggests that the trial court should have held a hearing to determine whether Krawiec knew about the lawsuit, had counsel, and if so, why counsel had not made an appearance. Krawiec provides no authority requiring the trial court to conduct such an investigation, and we know of none.
Krawiec also suggests that the trial court should have held an evidentiary hearing because "a request for hundreds of thousands of dollars should be handled with due diligence and not just signed off on." When a no-answer default judgment is entered, the non-answering party is deemed to have admitted both the truth of all facts properly pleaded and liability on any cause of action properly alleged by those facts. Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012). However, this presumption does not apply to unliquidated damages. When a default judgment is taken on an unliquidated claim, all allegations of fact set forth in the petition are deemed admitted except for the amount of damages. Texas Commerce Bank, Nat'l Ass'n v. New, 3 S.W.3d 515, 516 (Tex. 1999).
In his petition, Holt sought an unspecified amount of damages for past pain and suffering, past physical impairment, past medical expenses, future pain and suffering, future physical impairment, future medical expenses, and punitive damages. These are damages for personal injuries, which are unliquidated. Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.—Dallas 1994, no writ). When damages are unliquidated, the trial court must hear evidence as to damages, TEX. R. CIV. P. 243; however, such damages need not be presented with testimony. Whitaker v. Rose, 218 S.W.3d 216, 220 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Affidavits will satisfy the evidence requirement of Rule 243. New, 3 S.W.3d at 516.
Holt asserts that his damages were supported by medical records and business records affidavits supporting the medical bills that he incurred. These affidavits are not included in our record on appeal; however, the trial court's docket sheet contains notations that such affidavits were filed. Krawiec does not contend that Holt failed to file affidavits supporting his damages. Nor does he challenge the sufficiency of the evidence to support the trial court's determination of damages. He merely challenges the lack of an evidentiary hearing. Because evidence of damages need not be presented with testimony, a hearing was not required. We overrule Krawiec's first issue.
In his second issue, Krawiec contends that Holt's attorney misled the trial court, denying Krawiec's right of access to the court and due process of law. He claims the record raises the following questions: (1) whether Krawiec was properly served with process, (2) whether Krawiec received proper notification of all documents filed in the case, and (3) whether Krawiec was represented by counsel. Krawiec acknowledges that the trial court granted Holt's motion for substituted service. In accordance with the trial court's order, the process server attached a copy of the citation with a copy of the petition and the order to Krawiec's front door at 14517 Crystal Lake Drive, Little Elm, Texas 75068, and filed her return with the court. Krawiec admits that on October 1, 2016, he retrieved the petition from his front door. We conclude Krawiec was properly served with process. As discussed above, once Krawiec was served with citation and the petition, Holt had no legal duty to notify him before taking a default judgment. No attorney entered an appearance or filed an answer on behalf of Krawiec. Therefore, according to the record, Krawiec was not represented by counsel in this case. We overrule Krawiec's second issue.
Krawiec next contends that the trial court did not have personal jurisdiction to enter a default judgment against him because he was improperly served with substituted service. "Where in personam jurisdiction is based upon substituted service, the record must affirmatively show strict compliance with the statute authorizing such service." Roberts v. Niekerk, 730 S.W.2d 341, 342 (Tex. App.—Dallas 1987, writ ref'd). The trial court authorized substituted service under Rule 106 of the Texas Rules of Civil Procedure, which provides in pertinent part:
(b) Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
TEX. R. CIV. P. 106(b). Krawiec asserts that Holt did not comply with Rule 106 because the affidavit in support of Holt's motion for substituted service did not sufficiently establish Krawiec's usual place of abode.(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
The petition stated that Krawiec could be served with process by serving him personally at 13517 Crystal Lake Drive, Little Elm, Texas 75068-2740. Holt filed a Motion to Substitute Service of Defendant Frank Krawiec, Individually and d/b/a Frank's Perfect Painting and Remodeling, stating that attempts to serve process on Krawiec had been unsuccessful. The motion stated it was reasonable to infer that 14517 Crystal Lake Drive, Little Elm, Texas 75068 was the address where Krawiec resided—not the address stated in Holt's petition. The motion was supported by the affidavit of Heather Bork, a private process server, detailing her attempts to personally serve Krawiec. Bork stated that she had identified Krawiec's automobile by license plate number and registration and noted that the automobile was in the driveway at 14517 Crystal Lake Drive, Little Elm, Texas 75068 on several occasions. She attested that she attempted to deliver notice of the lawsuit to Krawiec by delivering the petition and citation to his usual place of abode located at 14517 Crystal Lake Drive, Little Elm, Texas 75068. She then described her four unsuccessful attempts to serve Krawiec over a two-week period. Each time, she knocked on the residence door, received no response, and left a note on the door. She called and left voice mail messages for Krawiec but received no response. She also described her unsuccessful attempts to talk to neighbors.
Krawiec argues the process server's affidavit was insufficient to show that the 14517 Crystal Lake Drive address was his usual place of abode because: (1) the address in the affidavit was different from the address in the original petition and citation, which stated that he could be served at 13517 Crystal Lake Drive, Little Elm, Texas 75068; and (2) the process server never made contact with anyone at 14517 Crystal Lake Drive and did not talk to any nearby neighbors. Krawiec argues that the affidavit was not supported by probative evidence as required by this Court's opinion in Garrels v. Wales Transp., Inc., 706 S.W.2d 757 (Tex. App.—Dallas 1986, no writ). We disagree with Krawiec's interpretation that Garrels required additional evidence to support the affiant's statement of the address of Krawiec's usual place of abode.
In Garrels, the plaintiff's unsworn motion for substituted service stated that a particular address was the defendant's home address, but the supporting affidavit did not include such a statement. Id. at 758-59. Concluding that the unsworn motion was insufficient, this Court stated that before the trial court may order substituted service under Rule 106, "there must be evidence of probative value that the location stated in the affidavit is the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found." Id. at 759. Garrels does not require the affidavit to state how the affiant concluded the address was the usual place of abode of the defendant; it requires the affidavit, as opposed to the unsworn motion, to state that the address was the defendant's usual place of abode. James v. Comm'n for Lawyer Discipline, 310 S.W.3d 586, 591 (Tex. App.—Dallas 2010, no pet.). We conclude the trial court complied with Rule 106 and did not err in granting Holt's motion for substituted service. Krawiec has not established that the trial court lacked personal jurisdiction; therefore, we resolve his third issue against him.
In his fourth issue, Krawiec argues that the default judgment is not final because it does not address all of Holt's issues, specifically Holt's claim for punitive damages. An appeal may be taken only from a final judgment unless a statute specifically authorizes an interlocutory appeal. TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a) (West 2015 & Supp. 2017). A final judgment is one that disposes of all parties and all issues involved in the lawsuit. Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986). A judgment following a trial on the merits is presumed to be final; however, there is no such presumption of finality following a default judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding). "A judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001).
In this case, the default judgment does not appear to dispose of all claims because it does not explicitly dispose of Holt's claim for punitive damages. A default judgment that does not dispose of the punitive damage issue is not final. Houston Health Clubs, 722 S.W.2d at 693. Whether a judgment is final must be determined from its language and the record in the case. Lehmann, 39 S.W.3d at 205-06. "An order does not dispose of all claims and all parties merely because it is entitled 'final', or because the word 'final' appears elsewhere in the order, or even because it awards costs." Id. at 205. A judgment is not final unless its words unequivocally express an intent to finally dispose of the case. Id. at 200.
According to the record, Holt's motion for default judgment included all of his claims against both defendants, including his claims for actual and punitive damages. The trial court's order granting Holt's motion is titled "Final Default Judgment." The judgment disposes of all parties by clearly stating that (i) default judgment is granted against defendants Frank Krawiec, Individually and Frank Krawiec D/B/A Frank's Perfect Painting and Remodeling, and (ii) defendants are jointly and severally liable. It awards damages for past medical expenses, past and future physical pain, mental anguish, and physical impairment, costs, interest, and any and all other relief the court deems appropriate. It also provides for writs and processes necessary to enforce and collect the judgment. Although the judgment does not contain language denying all relief not granted, such language alone is not dispositive. In re Burlington, 167 S.W.3d at 829-30. However, the judgment states "the Court GRANTS the motion for default judgment and renders final judgment as follows." Such language, together with the document title, disposal of all parties, and provision for enforcing the judgment, clearly expresses the trial court's intent to finally dispose of the case. We conclude the judgment is final and overrule Krawiec's fourth issue.
CONCLUSION
Having resolved all of his issues against him, we conclude that Krawiec has failed to show error apparent on the face of the record. We affirm the trial court's judgment.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE 170307F.P05
JUDGMENT
On Appeal from the County Court at Law No. 2, Dallas County, Texas
Trial Court Cause No. CC-16-04250-B.
Opinion delivered by Justice Boatright. Justices Francis and Evans participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee KEVIN HOLT recover his costs of this appeal from appellant FRANK KRAWIEC, INDIVIDUALLY AND D/B/A FRANK'S PERFECT PAINTING AND REMODELING. Judgment entered this 7th day of May, 2018.