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In Kelly, this Court held that section 26.043(2) encompassed claims asserted by homeowners to invalidate a lien on their property filed by a contractor.
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No. 05-16-00888-CV
06-27-2017
JOAINNE RHODES, Appellant v. JERRIE KELLY, Appellee
On Appeal from the 68th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-06302
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
In this case, appellant Joainne Rhodes contends the trial court improperly granted a default judgment in favor of appellee Jerrie Kelly as to Kelly's claim to enforce an alleged agreement to transfer an interest in real property. Further, Rhodes claims the trial court erred by denying Rhodes's motion for a new trial. Specifically, in three issues on appeal, Rhodes asserts (1) she was entitled to a new trial because she was not properly served with citation and, alternatively, satisfied the requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); (2) "[Kelly's] petition and motion for default judgment do not present sufficient evidence to grant a default judgment and fail upon the face of the documents"; and (3) Kelly was not entitled to recover the attorney's fees awarded to her by the trial court.
We decide against Rhodes on her three issues. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL CONTEXT
Rhodes and Kelly are sisters. In 2011, Rhodes and her son, Aaron Glover, co-owned a residential property located at 418 S.E. 13th Street in Grand Prairie, Texas ("the Property). Pursuant to a written lease agreement between Rhodes and Kelly dated June 21, 2011 ("the Lease"), Kelly agreed to pay $300.00 per month rent to live at the Property.
On June 2, 2015, Kelly filed this lawsuit against Rhodes and Glover. In her petition, Kelly asserted in part,
In or about October 2012, Defendant Rhodes agreed to sell the Property to Plaintiff in exchange for her providing full time care for Plaintiff and Defendant Rhodes' two sisters. Additionally, Plaintiff was to fix up the house and make it habitable once again (following Defendant Glover's damage). Finally, Plaintiff was to pay all taxes and other amounts related to the Property as they became due. In exchange for this, Plaintiff was to receive unencumbered title to the Property from Defendant Rhodes.Additionally, Kelly contended "[s]ince October 2012, Plaintiff has resided in and maintained the Property as her homestead" and "[d]espite spending over $30,000.00 on improvements and expenses related to the Property (including the taxes owed), Defendants have refused and continue to refuse to recognize Plaintiff's interest in the Property."
Kelly asserted claims for "breach of contract (specific performance)," "quiet title action," and promissory estoppel. Specifically, as to her breach of contract claim, Kelly stated in part (1) "Rhodes and Plaintiff entered into a valid agreement regarding the purchase of the Property"; (2) "Plaintiff has performed her contractual obligations"; (3) "Defendants have breached the contract by, without limitation, attempting to remove Plaintiff from the Property and failing to provide Plaintiff with title to the Property consistent with her ownership interest"; and (4) "[b]ecause Plaintiff has already paid for the Property in full, she seeks specific performance through Defendants' conveyance of legal, unencumbered title to the Property to Plaintiff." As to her "quiet title action," Kelly stated in part (1) "Defendant Rhodes agreed to provide Plaintiff with title to the Property in exchange for her providing medical care and assistance to their sisters and for making repairs and improvements following Defendant Glover's destruction/abandonment" and (2) "each Defendants' refusal to allow the title of the Property to accurately reflect Plaintiff's ownership interest clouds the title of Plaintiff to the Property, depreciates the market value, and prevents Plaintiff from enjoying the use of the Property in her own best interest as owner." Further, Kelly stated in the petition (1) "[i]n addition to the above amount, Plaintiff is entitled to recover reasonable attorney fees as defined in conformity with § 38.001 Tex. Civ. Prac. & Rem. Code," see TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2015), and (2) "Plaintiff is therefore entitled to recover from Defendant an additional sum to compensate Plaintiff for a reasonable fee for such attorney's necessary services in the preparation and prosecution of this action, as well as a reasonable fee for any and all necessary appeals to other courts."
On September 18, 2015, Kelly filed a motion for default judgment in which she requested judgment against Rhodes and Glover "quieting title to the subject property in favor of Plaintiff and awarding damages and attorney's fees as stated herein." Further, Kelly stated in the motion (1) "[o]n July 3, 2015, Defendants Aaron Glover and Joainne Rhodes were each properly served with citation and a copy of Plaintiff's Petition via personal service,"; (2) "Defendants have not filed an Answer, or any pleading constituting an Answer, and have not entered an appearance"; (3) "Plaintiff is entitled to a default judgment quieting title to the Property in Plaintiff's name and awarding the damages detailed in the attached Affidavit of Jerrie Kelly"; and (4) "[p]ursuant to the Lease, Plaintiff requested reasonable and necessary attorney fees and attaches as Exhibit 'J' the Affidavit of Corey Herrick proving attorney fees in this case and incorporates same by this reference." The exhibits attached to Kelly's motion included, among other things, affidavits by her and Herrick and copies of the Lease and several documents purportedly pertaining to payments made by Kelly described in her affidavit.
Kelly's affidavit stated in part,
1. . . . I am the Plaintiff in the above-entitled and numbered cause and the facts stated herein are within my personal knowledge and are true and correct.
2. I am the owner and sole resident of the property located at 418 S.E. 13th Street, Grand Prairie, Texas 75051, Dallas County, Texas, and I am the custodian of records for my purchase of that property.
3. Attached hereto are six (6) pages of records, consisting of a residential lease, as well as checks, receipts, and bank statements evidencing funds I paid in 2011 and 2014 on behalf of Defendants for plumbing work and past due water and tax bills.
4. These six (6) pages of records are kept by me in the regular course of business, and it was in the regular course of business of my purchase and ownership of the aforementioned property for an employee or representative, with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record or to transmit information thereof to be included in such records; and the records were made at or near the time or reasonably soon after the act, event, condition, opinion, or diagnosis that was recorded. The records attached hereto are the originals or exact duplicates of the originals.
. . . .
7. In or about June 2011, I executed a lease with Defendant Rhodes to reside at the Property. I moved in and paid rent to Defendant Rhodes in conformity with the lease. . . .
8. I made two payments on behalf of Defendants in 2011. On or about June 29, 2011, I made a payment of $599.36 to the City of Grand Prairie, for a past due water bill incurred prior to my lease. . . .
9. . . . In or about October 2012, following expiration of the lease (and my payments noted above) Defendant Rhodes approached me with an offer to sell Defendants' entire interest in the Property to me in exchange for my providing full time care for her and [another sister]. Additionally, I would be responsible for repairs to the house and for making it fully habitable once again (following Defendant Glover's aforementioned destruction). Finally, I was to pay all taxes and other amounts related to the Property as they became due, but was not responsible for any past due amounts that had been incurred by Defendants. In exchange for this, I was to receive full, unencumbered title to the Property from Defendant Rhodes.
10. I accepted Defendant Rhodes' offer and since October 2012 I have provided full time care for Defendant Rhodes and [another sister], fixed up the Property and made it fully habitable. I have also resided exclusively in the Property and maintained it as my homestead. However, despite fulfilling all terms of the contract, and despite spending over $30,000.00 on improvements and expenses related to the Property, Defendant Rhodes has refused and continues to refuse to provide me with title to the Property.
11. Pursuant to the contract I was also to be reimbursed for the plumbing and water charges incurred by Defendants and paid by me, on their behalf, in 2011. Further, the Property was not owned free and clear (as Defendant Rhodes had represented to me) due to taxes incurred on the Property prior to 2012. In order to avoid foreclosure of the tax liens, I was forced in 2014 to pay $7,134.18 owed to the Dallas County by Defendants for their unpaid taxes through 2011. . . . Despite my demands, Defendants have refused and continue to refuse to reimburse me for these payments.
. . . .
13. . . . [D]uring the past three years, Defendant Rhodes has paid no funds for rent, taxes, insurance, repairs/maintenance, utilities, or for any other fees associated with the Property, and has not resided in the Property since at least 2009.
14. The property has a current value of approximately Fifty Thousand Dollars ($50,000.00).
Herrick stated in part in his affidavit (1) "Plaintiff retained me to represent her in this suit for breach of contract, suit to quiet title, promissory estoppel (in the alternative) and for recovery of her attorney's fees against Defendants" and (2) "[t]he novelty and difficulty of the questions involved in this case required that my firm spend twenty-seven (27) hours at a rate of up to Three Hundred Dollars ($300.00) per hour and incur expenses of $831.00, for a total of Six Thousand Ninety-One Dollars ($6,091.00)."
The trial court signed a default judgment against Rhodes and Glover dated September 25, 2015. On October 9, 2015, both defendants filed general denial answers and motions for new trial. In an order dated November 19, 2015, the trial court's September 25, 2015 default judgment was set aside as to Glover and the case was reinstated as to the claims against him.
On approximately June 1, 2016, Kelly nonsuited her claims against Glover. Subsequently, the trial court signed a "Final Judgment" dated June 2, 2016, in which it (1) granted Kelly's motion for default judgment as to Rhodes; (2) awarded Rhodes's interest in the Property to Kelly; and (3) awarded Kelly damages against Rhodes in the amount of $10,547.05, attorney's fees and costs against Rhodes in the amount of $6,091.00, and additional attorney's fees against Rhodes in the event that Kelly prevails at certain "postjudgment stages."
Rhodes filed a motion for new trial on June 13, 2016. In that motion, Rhodes asserted arguments under three headings: "defective service of citation," "petition does not support default judgment," and "mistake or accident." Under "defective service of citation," Rhodes contended in part (1) "Defendant was never served"; (2) "Defendant[s] reside in West Chicago, Illinois however [sic] the return of service states that they were served on July 3, 2015 at 418 SE 18th Street, Grand Prairie, Texas 75051 at which neither Defendant resides"; (3) "Plaintiff falsified service documents"; and (4) the trial court "could not have granted a default judgment on the claim to Quiet Title with the pleadings and evidence filed with the [trial court] by Plaintiff." Under the second heading, i.e., "[p]etition does not support default judgment," Rhodes asserted in part (1) "Plaintiff has provided no contract that was executed between all the parties"; (2) "[t]hus, Plaintiff's petition does not support the default judgment"; (3) "[t]o prevail in a suit to quiet title, a plaintiff must prove . . . he has an interest in a specific property"; and (4) "[n]othing in the Plaintiff's pleading shows she has an interest in the Property." Under the third heading in her motion for new trial, Rhodes asserted that when a defendant does not file an answer because of a "mistake or accident," the trial court should set aside the default judgment and grant a new trial if the defendant can meet the requirements of Craddock. See 133 S.W.2d at 126. Specifically, Rhodes argued the requirements of Craddock were met in this case because:
14. . . . Defendant's failure to answer was not intentional, but was accidental. Specifically, she were [sic] never served with citation. Defendant at the time of service was barred from leaving the State of Illinois due to being out of jail on bond. . . .
15. . . . Defendant has a meritorious defense. Specifically, Defendant never entered into contract with Plaintiff for the purchase of any interest in the property. . . . [and]
16. . . . [A] new trial will not cause delay or otherwise injure Plaintiff. Defendant is ready for trial.
The exhibits attached to Rhodes's motion for new trial included (1) a copy of an August 19, 2015 demand letter respecting the Property sent by Kelly's counsel to Rhodes and Glover at an address in West Chicago, Illinois; (2) an affidavit of Glover; (3) an affidavit of Jim Lytle, described by Rhodes as her son's friend; (4) an "Affidavit of Service" by Charles P. Goodson pertaining to this case, with an attached "citation"; (5) a copy of an "Appearance Bond" pertaining to Rhodes's appearance in a criminal case against her in a state court in McLean County, Illinois, which bond stated in part that she was not to leave Illinois "without permission of the Court"; (6) a "receipt voucher" from the court in that same Illinois case, showing a fee was paid for a "copy of bond form"; and (7) a printout of a search result from a McLean County, Illinois, government website, showing details of criminal proceedings against Rhodes in that county.
Glover's affidavit stated in part,
My name is Aaron Glover. . . . I have read the responses to the Motion for New Trial. The facts stated within it are within my personal knowledge and are true and correct.
1. I have power of attorney for my mother Joainne Rhodes.
2. She does not reside in Texas.
3. My mother was living with me at the alleged time of service in West Chicago, Illinois.
4. She has never entered into a contract to sell any portion of the interest of the residence at issue in this suit to the Plaintiff.
5. Plaintiff is claiming repairs done to the house as hers when I am the person who paid for and actually performed the repairs to the residence.
6. My mother has never lived in the property.
7. She was residing in West Chicago, Illinois at the time of the alleged service due to her being out on bond and unable to leave the state.
8. Plaintiff is aware that she reside [sic] in West Chicago, Illinois as is evident from correspondence sent to me.
9. Had I been aware of the suit and received proper service I would have answered the suit.
Lytle's affidavit stated in part,
My name is Jim Lytle. . . . I have read the responses to the Motion for New Trial. The facts stated within it are within my personal knowledge and are true and correct.
1. Defendant Rhodes was in West Chicago at the time of the alleged service.
2. She does not reside in Texas.
3. Defendant Rhodes could not leave Illinois due to bond restriction, for her criminal case, from leaving the state on the date of the alleged service.
4. Defendant Rhodes was residing in West Chicago, Illinois with her son at the time of the alleged service.
Goodson's affidavit bore the trial court cause number and caption of this case and stated in part,
I, Charles P Goodson, being duly sworn, depose and say that on the 3rd day of July, 2015 at 3:15 pm, I:
executed service by delivering a true copy of the Citation, Copy of Plaintiff's Original Petition and Request for Disclosures, to Joainne Rhodes personally at 418 S E 18th Street, Grand Prairie, TX 75051, and informed said person of the contents therein, in compliance with state statutes.
"I certify that I am over the age of 18, have no interest in the above action , and am a Certified Process Server in good standing in the judicial circuit in which the process was served. I have personal knowledge of the facts set forth in this affidavit, and they are true and correct."
A hearing on Rhodes's motion for new trial was held on July 18, 2016. Both sides appeared through counsel, but no live testimony was presented by either side. According to the reporter's record, counsel for Rhodes asserted in part (1) "I have three witnesses to testify that Ms. Rhodes was living in Chicago. Was at a picnic, family picnic on July 3rd, the day of the alleged service of citation, and therefore couldn't be here"; (2) the trial court has no "power to grant a default judgment" because "the face of their petition is defective"; (3) "[t]he statute of limitations for oral contract is two years" and that limitations period expired before this suit was filed; (4) "[the] Statute of Frauds prevents the transfer of property on an oral contract"; (5) a suit to quiet title requires an interest in property, which "is only through a deed or a contract, none of which they have"; and (6) "the petition does not give enough evidence to prove that they're entitled to the claims they are seeking."
Counsel for Kelly objected to several of the exhibits attached to the motion for new trial. Specifically, (1) objections to the McLean County, Illinois, appearance bond, receipt voucher, and website printout described above were asserted on the grounds of lack of authentication and hearsay, and (2) an objection to Lytle's affidavit was asserted on the ground of lack of basis for his personal knowledge. The objections were not ruled upon. Additionally, counsel for Kelly argued (1) "service was effective on Ms. Rhodes in July 2015"; (2) "[w]e know this because we have an affidavit of service on file from a private process server firm"; (3) "the return of service speaks for itself"; (4) "[t]he process server, Charles Gibbons, I believe, is here today prepared to offer testimony if the Court would prefer"; (5) a parole order in Illinois "doesn't mean you can't violate that by coming to Texas"; (6) there is no evidence that Kelly falsified service documents; (7) "it's clear that [Kelly] filed causes of action, breach of contract, suit for quiet title, and in the alternative, promissory estoppel" and "did have testimony" in her motion; (8) Rhodes's Craddock argument "confuses the motion" because Craddock "presumes that service was indeed effective"; and (9) regardless, Rhodes has not fulfilled the requirements of Craddock.
Counsel for Rhodes responded in part (1) Lytle "is here to testify that at the time of service the Defendant was in Illinois at a family barbecue" and (2) the McLean County documents in question are "self-authenticating."
In an order dated July 18, 2016, Rhodes's motion for new trial was denied. This appeal timely followed.
II. DENIAL OF MOTION FOR NEW TRIAL
A. Standard of Review
We review a trial court's denial of a motion for new trial after a default judgment for abuse of discretion. See, e.g., MobileVision Imaging Serv., L.L.C. v. LifeCare Hosp. of N. Tex., L.P., 260 S.W.3d 561, 564 (Tex. App.—Dallas 2008, no pet.) (citing In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam)). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules and principles. See Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); see also Cooper v. Campbell, No. 05-15-00340-CV, 2016 WL 4487924, at *5 (Tex. App.—Dallas Aug. 24, 2016, no pet.) (mem. op.) (abuse of discretion does not occur when trial court bases its decision on conflicting evidence, as long as some evidence reasonably supports trial court's decision).
B. Analysis
In her first issue, Rhodes contends she was entitled to a new trial because she was not served with citation and, alternatively, she provided proof respecting all three Craddock elements. We address those arguments in turn.
1. Service of Citation
a. Applicable Law
A defendant who was not served with process prior to a default judgment is generally entitled to a new trial without any further showing. See MobileVision Imaging Serv., 260 S.W.3d at 564 (citing Fid. & Guar. Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 574 (Tex. 2006) (per curiam)). Texas Rule of Civil Procedure 106(a) provides in part that, unless a citation or order of the court directs otherwise, "the citation shall be served by any person authorized by Rule 103 by . . . delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto." TEX. R. CIV. P. 106(a). The officer or authorized person executing the citation must complete a return of service. TEX. R. CIV. P. 107(a). The return, together with any document to which it is attached, must include the following information: (1) the cause number and case name; (2) the court in which the case is filed; (3) a description of what was served; (4) the date and time the process was received for service; (5) the person or entity served; (6) the address served; (7) the date of service or attempted service; (8) the manner of delivery of service or attempted service; (9) the name of the person who served or attempted to serve the process; (10) if the person named in (9) is a process server certified under order of the Supreme Court, his or her identification number and the expiration date of his or her certification; and (11) any other information required by rule or law. TEX. R. CIV. P. 107(b). No default judgment shall be granted in any cause until proof of service shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment. TEX. R. CIV. P. 107(h); see also TEX. R. CIV. P. 239 (at any time after defendant is required to answer, "the plaintiff may in term time take judgment by default against such defendant if he has not previously filed an answer, and provided that the return of service shall have been on file with the clerk for the length of time required by Rule 107").
Service of citation must be in strict compliance with the rules of civil procedure to establish jurisdiction over a defendant and support a default judgment. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); see also Adame v. Palisades Collection, L.L.C., No. 05-11-00793-CV, 2012 WL 2564717, at *1-2 (Tex. App.—Dallas Jul. 3, 2012, no pet.) (mem. op.) (defective service may be raised for first time on appeal). "If strict compliance is not shown, the service of process is invalid and of no effect." Cervantes v. Cervantes, No. 03-07-00381-CV, 2009 WL 3682637, at *3 (Tex. App.—Austin Nov. 5, 2009, no pet.) (mem. op.) (citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985)); see also Wilson, 800 S.W.2d at 836 (default judgment is improper against defendant who has not been served in strict compliance with law, even if he has actual knowledge of lawsuit). "In a direct attack on a default judgment, there are no presumptions in favor of a valid issuance, service, and return of the citation." Adame, 2012 WL 2564717, at *2.
"However, strict compliance with the rules does not require 'obeisance to the minutest detail.'" Westcliffe, Inc. v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 290 (Tex. App.—Dallas 2003, no pet.) (quoting Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 871 (Tex. App.—Houston [1st Dist.] 1995, no writ)); Cervantes, 2009 WL 3682637, at *3. "Errors such as mistaken capitalization in the defendant's name and spelling errors too minor to raise any doubt that the correct person was served are insufficient to validate service." Westcliffe, 105 S.W.3d at 290. "As long as the record as a whole, including the petition, citation, and return, shows that the citation was served on the defendant in the suit, service of process will not be invalidated." Cervantes, 2009 WL 3682637, at *3 (quoting Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App.—Austin 2004, pet. denied)).
If a defendant did not receive suit papers, generally a default judgment must be set aside. Id. at *5. However, an exception to this rule exists when the return of service includes the proper recitations and nonreceipt is uncorroborated. Id. The return of service is considered prima facie evidence of the facts asserted therein. Id. "The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party." Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); accord Adame, 2012 WL 2564717, at *2; Cervantes, 2009 WL 3682637, at *5.
b. Application of Law to Facts
Rhodes argues (1) she provided two affidavits "to support that she was not in Texas at the time of alleged service"; (2) she "was also prepared to have live testimony from two individuals that would attest to her being in West Chicago, Illinois at a family picnic at the time of the alleged service"; (3) service of citation on her personally at "418 SE 18th Street, Grand Prairie, Texas 75051" on the date alleged "was an impossibility" because at the time of the alleged service of citation, she "was free on bond in Illinois and, per her bond agreement, prohibited from leaving the state till after her case was adjudicated without prior approval"; (4) "the address listed in the affidavit of the process server does not even exist"; and (5) "[i]t has historically been the practice of courts in Texas to liberally grant motion for new trials [sic] when a no answer default judgment has been entered if the Appellant provides more than just bare allegation of no service." Additionally, in her reply brief in this Court, Rhodes asserts she provided "self-authenticating evidence that at the time of alleged service she was not allowed to leave the State of Illinois" and "[t]hus, her evidence was not hearsay or it fell under an exception to the hearsay rule and as such was admissible evidence to prove non-service of citation."
Kelly responds (1) Lytle's affidavit "failed to state the basis for any personal knowledge he claimed to possess regarding Appellant" and was "irrelevant"; (2) the other evidence objected to by Kelly at the hearing described above was "unauthenticated" and "hearsay"; (3) "the mere fact that leaving Illinois . . . may have allegedly violated [Rhodes's] parole does not establish that she could not have done so"; and (4) although the process server's return of service "incorrectly notes the address for service as '418 S.E. 18th Street' instead of '418 S.E. 13th Street,' which is the address of the [Property]," "[t]his typographical error does not negate the fact that service was effected on Ms. Rhodes."
As described above, "[t]he recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party." Primate Constr., Inc., 884 S.W.2d at 152. Accordingly, we turn to Rhodes's "proof" respecting her assertion that she was not served. See id. The record shows Goodson stated in the "Affidavit of Service" that "on the 3rd day of July, 2015 at 3:15 pm, I: executed service by delivering a true copy of the Citation, Copy of Plaintiff's Original Petition and Request for Disclosures, to Joainne Rhodes personally at 418 S E 18th Street, Grand Prairie, TX 75051, and informed said person of the contents therein, in compliance with state statutes." The parties do not dispute that the address of the Property is "418 S.E. 13th Street." However, Rhodes cites no evidence in the record to support her position that "the address listed in the affidavit of the process server does not even exist." Moreover, to the extent Rhodes contends the address listed in the affidavit of the process server contained an error, (1) such alleged error consisted of only one incorrect digit, i.e., an "8" in place of a "3, and (2) the process server's affidavit states a copy of the citation was delivered to "Joainne Rhodes personally." Rhodes does not explain, and the record does not show, how the alleged incorrect digit "raise[d] any doubt" as to the identity of the person served. See Westcliffe, 105 S.W.3d at 290-91 (concluding unauthorized correction of typographical error in address where defendant could be found and served did not invalidate service, where petition, citation, and return established proper person was served).
Additionally, Rhodes cites Texas Rule of Evidence 902 in support of her position that her evidence respecting proceedings against her in McLean County, Illinois, was "self-authenticating." Specifically, Rhodes contends in part that her "Appearance Bond" and the receipt voucher showing payment for a copy of that bond are self-authenticating under subsections (2) and (4) of rule 902. The record shows the "Appearance Bond" contains (1) a "Certificate of Defendant" signed by Rhodes in which she certifies she understands the terms and conditions of the bond and (2) a box containing the statement, "Signed and acknowledged before me and bond received by me this 6th day of February, 2015," with an "official signature" below that statement. There are no other signatures or certifications on either document. Rhodes does not explain, and the record does not show, how those documents meet (1) the requirement of subsection 902(2)(B) respecting certification by a public officer as to the official signature on the document and the capacity of the signer or (2) the requirement of subsection 902(4) requiring certification of a copy as correct. Further, Rhodes contends subsection 902(5) applies to the printout of a search result from a McLean County, Illinois, government website, showing details of criminal proceedings against Rhodes in that county. Rhodes cites no authority to support her position that a website search result is a "publication" for purposes of that subsection. Moreover, (1) that search result merely lists details of Illinois criminal proceedings against Rhodes and does not describe a requirement to remain in Illinois, and (2) none of the McLean County evidence shows Rhodes was physically prevented from leaving Illinois or purports to describe her location on the date of the alleged service in question.
That rule states in relevant part as follows:
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state[;] . . . a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; [and]
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed But Are Signed and Certified. A document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and
(B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.
. . . .
(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1) [or] (2), . . . a statute, or a rule prescribed under statutory authority.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.TEX. R. EVID. 902 (emphasis original).
Also, Rhodes relies on (1) the affidavits of Glover and Lytle and (2) her assertions that she was "prepared to have live testimony from two individuals that would attest to her being in West Chicago, Illinois at a family picnic at the time of the alleged service" and "[i]t has historically been the practice of courts in Texas to liberally grant motion for new trials [sic] when a no answer default judgment has been entered if the Appellant provides more than just bare allegation of no service." In the portion of her appellate brief respecting those arguments, Rhodes cites generally to Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc., 143 S.W.3d 538 (Tex. App.—Austin 2004, no pet.).
The record does not show any live testimony was presented at the hearing described above or that Rhodes objected to the lack of such testimony. Further, although Glover stated in his affidavit that Rhodes "does not reside in Texas," "was living with me at the alleged time of service in West Chicago, Illinois," and "was residing in West Chicago, Illinois at the time of the alleged service due to her being out on bond and unable to leave the state," none of those statements specifically address Rhodes's location on the alleged date of service in question or preclude her presence in Texas on that date. Additionally, Lytle stated in part in his affidavit that "Rhodes was in West Chicago at the time of the alleged service." However, in a challenge to a return of service, "[t]he test of the evidence, from whatever source, is whether it demonstrates independent facts and circumstances that support, and thus corroborate, the challenger's claim." In re Spiller, 303 S.W.3d 426, 432 (Tex. App.—Waco 2010, no pet.) (emphasis added) (quoting Min v. Avila, 991 S.W.2d 495, 503 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). Lytle did not testify in his affidavit that he saw Rhodes in Chicago, nor does Rhodes explain how Lytle's statement demonstrates any "independent facts or circumstances" respecting her position. See id. Further, the record contains no affidavit or testimony of Rhodes respecting whether she was served. Rhodes cites no authority, and we have found none, to support the position that Lytle's affidavit, alone, meets the requirement to show more than "uncorroborated proof of the moving party." See Primate Constr., Inc., 884 S.W.2d at 152; Davis v. Davis, 521 S.W.2d 952, 954 (Tex. Civ. App.—Fort Worth 1975, no writ) (in order to dispute recitations in return of service, "[t]here should be at least two witnesses or one witness with strong corroborative facts and circumstances proceeding from a source other than the witness").
Finally, the case cited by Rhodes, Limestone, involved an appeal from the overruling of plaintiff Limestone Construction, Inc.'s motion for new trial following a default no-evidence summary judgment in favor of defendant Summit Commercial Industrial Properties, Inc. See 143 S.W.3d at 540. Limestone's motion for new trial was based solely on its claim that it did not receive prior notice of Summit's summary judgment motion and hearing. Id. at 544. The court of appeals stated in part, "We initially note that the historical trend is towards the liberal granting of motions for new trial filed after default judgments. But bare allegations of lack of notice do not suffice; instead, the nonmovant must offer evidence, either in the form of an affidavit or live testimony." Id. (citations omitted). Then, the court of appeals stated "[i]n this case, the presumption of service was rebutted in two ways," i.e. by an affidavit of Limestone's attorney denying receipt of notice of the summary judgment motion and by Summit's own affidavit, which showed the package containing the summary judgment motion was eventually returned to Summit by the postal service as "unclaimed." Id. at 544-45. The court of appeals concluded that evidence warranted reversal of the denial of Limestone's motion for new trial. Id. at 547.
In support of the second sentence in that quotation, the court of appeals cited a portion of Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992), in which the supreme court stated as follows:
When applying the Craddock test, the trial court looks to the knowledge and acts of the defendant as contained in the record before the court. Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984). Where factual allegations in a movant's affidavits are uncontroverted, it is sufficient that the motion for new trial and accompanying affidavits set forth facts which, if true, would satisfy the Craddock test. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); Strackbein, 671 S.W.2d at 38-39. However, conclusory allegations are insufficient. Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872, 875 (Tex. App.—Fort Worth 1982, writ ref'd n.r.e.).
In the case before us, to the extent Rhodes argues that pursuant to Limestone, she was required merely to provide "more than just bare allegation of no service" to prevail on her challenge respecting service of citation, we disagree. Limestone did not mention or address the "corroboration" requirement described above. See Primate Constr., Inc., 884 S.W.2d at 152. Further, Limestone (1) involved a presumption of service that was rebutted "in two ways" and (2) is not necessarily inconsistent with the corroboration requirement described above. See id. We decline to adopt Rhodes's interpretation of Limestone.
On this record, we conclude the trial court did not abuse its discretion by concluding the recitations in the return of service were not rebutted by Rhodes. See id.; Adame, 2012 WL 2564717, at *2; Cervantes, 2009 WL 3682637, at *5. Accordingly, we conclude the trial court did not abuse its discretion by denying Rhodes's motion for new trial based on alleged lack of service.
2. Craddock Elements
a. Applicable Law
Unless lack of service of citation is established, a defendant moving for a new trial after a default judgment must prove the three familiar elements from Craddock: (1) the defaulting party's failure to answer or to appear was not intentional, or the result of conscious indifference, but was due to a mistake or an accident; (2) the defaulting party has a meritorious defense or claim; and (3) the motion is filed at a time when the granting of a new trial will not occasion delay or work other injury to the prevailing party. See MobileVision Imaging Serv., 260 S.W.3d at 564 (citing Craddock, 133 S.W.2d at 126). When a defaulting party moving for new trial meets all three elements of the Craddock test, a trial court abuses its discretion if it fails to grant a new trial. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). However, if the motion and accompanying affidavits fail to establish each prong of the Craddock test, then the trial court's denial of a new trial will be upheld. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).
A defendant's burden as to the first Craddock element has been satisfied when the factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff. Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012); In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam). In determining if the defendant's factual assertions are controverted, the court looks to all the evidence in the record. In re R.R., 209 S.W.3d at 115 (citing Dir., State Emp. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994)). When the defendant's factual assertions are controverted, the question of whether the defendant's failure to answer was intentional or the result of conscious indifference is a fact question. See, e.g., Fernandez v. Peters, No. 03-09-00687-CV, 2010 WL 4137491, at *6 (Tex. App.—Austin Oct. 19, 2010, no pet.) (mem. op.) (citing Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993)).
b. Application of Law to Facts
In the case before us, Rhodes asserts (1) her "non answer" was "not intentional" and (2) "the fact that Ms. Rhodes was never served with citation alone renders the rest of the Craddock test moot." Kelly responds in part that Rhodes "did not prove that service was improper." The evidence in the record includes the affidavits and other exhibits described above that were attached to Kelly's motion for default judgment and Rhodes's motion for new trial. The exhibits attached to Rhodes's motion for new trial included, in part, the process server's "Affidavit of Service." Although no additional evidence was presented at the hearing on that motion, counsel for Kelly contended at that hearing that (1) "service was effective on Ms. Rhodes in July 2015"; (2) "[w]e know this because we have an affidavit of service on file from a private process server firm"; and (3) "the return of service speaks for itself." Thus, the record does not show Rhodes's factual assertions were uncontroverted. Accordingly, the question of whether Rhodes's failure to answer was intentional or the result of conscious indifference was a fact question. See Fernandez, 2010 WL 4137491, at *6. Further, as described above, the record contains some evidence that Rhodes was served with citation.
On this record, we conclude the trial court did not abuse its discretion by concluding Rhodes did not satisfy the first element of Craddock. See id.; see also Advanced Aesthetics, Inc. v. Creative Beauty Innovations, Inc., No. 2-04-078-CV, 2005 WL 327176, at *1 (Tex. App.—Fort Worth Feb. 10, 2005, pet. denied) (mem. op.) (affirming denial of motion for new trial for failure to establish first Craddock element where trial court conducted hearing in which it did not deny parties' ability to further develop facts and parties relied solely on competing affidavits). In light of that conclusion, we need not address the other two elements of Craddock. See Richardson v. Torres, No. 03-14-00341-CV, 2015 WL 5096553, at *3 (Tex. App.—Austin Aug. 25, 2015, no pet.) (mem. op.) (addressing only first element of Craddock where that element was dispositive of Craddock test).
We decide against Rhodes on her first issue.
III. SUFFICIENCY OF PLEADING AND EVIDENCE
A. Standard of Review and Applicable Law
A default judgment must be supported by a petition which states a cause of action. Paz v. Fatima Constr. & Cleaning Co. LLC, No. 05-15-00911-CV, 2016 WL 4050405, at *2 (Tex. App.—Dallas Jul. 27, 2016, no pet.) (mem. op.) (citing Fairdale Ltd. v. Sellers, 651 S.W.2d 725, 725 (Tex. 1982)); see 2811 Assocs., Ltd. v. Metroplex Lighting & Elec., 765 S.W.2d 851, 852 (Tex. App.—Dallas 1989, writ denied). In determining if a cause of action has been pleaded, the trial court must be able to determine from the pleadings alone the elements of the cause of action and the relief sought with reasonable certainty and without resorting to other sources. Paz, 2016 WL 4050405, at *2. The purpose of this rule is to ensure the defendant had fair notice of the basis of the plaintiff's cause of action. Id.
In determining fair notice, the pleadings must provide the defendant with sufficient information to enable him to determine the basis of the claims and must not disclose any invalidity of the claim on its face. Id. (citing Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988)). A petition is sufficient if a cause of action reasonably may be inferred from what is stated in the petition, even if an element of the action is not specifically alleged. Id. (citing Westcliffe, 105 S.W.3d at 292). Absent a clear abuse of discretion, "we will not unsettle a trial court's determination as to whether pleadings include sufficient allegations to give fair notice of a claim." Mandeville v. Mandeville, No. 01-15-00119-CV, 2015 WL 7455436, at *6 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet.) (mem. op.).
A successful breach of contract claim requires proof of the following elements: (1) a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. See Varel Indus., L.P. v. PetroDrillbits Int'l, Inc., No. 05-14-01556-CV, 2016 WL 4535779, at *5 (Tex. App.—Dallas Aug. 30, 2016, pet. denied) (mem. op.). Further, pursuant to section 26.01 of the Texas Business and Commerce Code, a "contract for the sale of real estate" is "not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him." TEX. BUS. & COM. CODE ANN. § 26.01(b)(4) (West 2015); see Chambers v. Pruitt, 241 S.W.3d 679, 687 (Tex. App.—Dallas 2007, no pet.). However, under the partial performance exception to the statute of frauds, contracts that do not meet the requirements of the statute of frauds, but have been partially performed, may be enforced in equity if denial of enforcement would amount to a virtual fraud. Chambers, 241 S.W.3d at 687 (citing Exxon Corp. v. Breezevale, Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet. denied)). When the oral agreement at issue involves the sale of real property, a well-established three-prong test is applied to determine partial performance. Id. The elements necessary to relieve a parol sale of land from the operation of the statute of frauds are (1) payment of the consideration; (2) possession by the vendee; and (3) the making by the vendee of valuable and permanent improvements on the land with the vendor's consent or, without such improvements, the presence of facts that would make the transaction a fraud on the purchaser if the oral contract was not enforced. Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 801 (Tex. App.—Dallas 2013, no pet.) (citing Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921)).
The effect of a suit to quiet title is to declare invalid or ineffective the defendant's claim to title. See, e.g., Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. App.—El Paso 2012, pet. denied). The plaintiff has the burden of supplying the proof necessary to establish his superior equity and right to relief. Id. The elements of the cause of action to quiet title are that the plaintiff must show (1) an interest in a specific property, (2) title to the property is affected by a claim by the defendant, and (3) the claim, although facially valid, is invalid or unenforceable. Id.; see also Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.—Beaumont 2000, pet. denied) (showing of equitable title based on performance under contract can constitute showing of greater right in property).
Pursuant to section 16.004 of the Texas Civil Practice and Remedies Code, a person must bring suit on an action for specific performance of a contract for the conveyance of real property not later than four years after the day the cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004 (West 2002); see also TEX. BUS. & COM. CODE ANN. § 2.725 (West 2009) ("An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued."); CIV. PRAC. & REM. § 16.051 (West 2015) ("Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.").
When a default judgment is taken against non-answering defendants on an unliquidated claim, all allegations of fact contained in the petition are deemed admitted, except for the amount of damages. Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.—Dallas 2005, no pet.) (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)). "As a result, an appellant is precluded from challenging the legal and factual sufficiency of the evidence supporting liability in a no-answer default judgment." Adame, 2012 WL 2564717, at *3. However, a post-answer default judgment can generally be challenged for sufficiency of the evidence. See Gavin v. Meissner Pub., Ltd., No. 02-12-00127-CV, 2014 WL 2143678, at *3 (Tex. App.—Fort Worth May 22, 2014, no pet.) (mem. op.).
In a legal sufficiency review, the ultimate test is whether the evidence allows reasonable minds to reach the finding under review. Dallas Cent. Appraisal Dist. v. Friends of Military, 304 S.W.3d 556, 557-58 (Tex. App.—Dallas 2009, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). Anything more than a scintilla of evidence is legally sufficient to support a challenged finding. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Id. When the trial court does not issue findings of fact and conclusions of law following a bench trial, we imply the trial judge made all the necessary findings to support its judgment and we may uphold the judgment on any legal theory supported by the pleadings and evidence. Brauss v. Triple M Holding GmbH, 411 S.W.3d 614, 620 (Tex. App.—Dallas 2013, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)); Weisfield v. Tex. Land Fin. Co., 162 S.W.3d 379, 381 (Tex. App.—Dallas 2005, no pet.).
B. Application of Law to Facts
In her second issue, Rhodes contends "[Kelly's] petition and motion for default judgment do not present sufficient evidence to grant a default judgment and fail upon the face of the documents." Specifically, according to Rhodes, (1) "[Kelly] plead no cause of action for which she could recover"; (2) "[Kelly's] petition contains no contract or any other evidence of intentions of Ms. Rhodes to transfer her interest to [Kelly]"; (3) "[a]n oral contract must be sued upon within two years of the obligation occurring"; (4) Kelly "did not commence her suit until after the statute of limitations had run on all her claims"; (5) "[Kelly's] claim for breach of contract and promissory estoppel is prohibited by the statute of frauds"; (6) "the court is prohibited from awarding [Kelly] a claim for specific performance without there being a writing containing the terms of the agreement"; and (7) "[t]here is no possible way that the trial court could have found that any of the requirements for a cause of action for quiet title existed in [Kelly's] petition" because "[Kelly's] only theory as to her interest is an alleged oral contract that is disputed and . . . violates the statute of frauds." Additionally, Rhodes argues in part in her reply brief on appeal (1) "[Kelly] has provided no evidence that she has ever paid rent to [Rhodes]" and (2) an "alleged receipt for improvements" attached to Kelly's affidavit described above "is clearly insufficient because on its face it is hearsay."
Kelly responds in part (1) "[t]here is legally sufficient evidence to support the judgment"; (2) the pleadings "provide a clear claim and sufficient evidence to support breach of contract"; (3) the petition "did not violate the statute of limitations"; and (4) "[a]n oral agreement, including for the sale or lease of real estate may be enforceable despite the Statute of Frauds if the agreement has been partially performed."
The sole authority cited by Rhodes in support of her position on appeal that "[a]n oral contract must be sued upon within two years of the obligation occurring" is Cannaday v. Martin, 98 S.W.2d 1009 (Tex. Civ. App.—Amarillo 1936, writ dism'd). However, the statute of limitations relied upon in that case was repealed in 1985. See id. We disagree with Rhodes's position that lack of compliance with the statute of limitations is shown on the face of the petition. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.004, 16.051; TEX. BUS. & COM. CODE ANN. § 2.725; see also Ratsavong v. Menevilay, 176 S.W.3d 661, 670 (Tex. App.—El Paso 2005, pet. denied) (applying four-year statute of limitations in action for breach of oral contract to sell real estate).
Additionally, the record shows Kelly stated in her petition (1) in approximately October 2012, Rhodes agreed to give Kelly the Property in exchange for Kelly providing care to certain family members, making improvements to the Property, and paying taxes and other amounts related to the Property; (2) "[s]ince October 2012, [Kelly] has resided in and maintained the Property as her homestead,"; and (3) Kelly "performed her contractual obligations" and spent "over $30,000.00 on improvements and expenses related to the Property (including the taxes owed)." On this record, we conclude the petition provides fair notice of each of the elements necessary to relieve a parol sale of land from the operation of the statute of frauds. See Stovall & Assocs., 409 S.W.3d at 801; see also Ratsavong, 176 S.W.3d at 668-69 (applying statute of frauds exception to facts respecting oral contract to sell real estate and concluding elements were satisfied). Further, in light of that conclusion, we cannot agree with Rhodes's position that the petition does not state a cause of action to "quiet title." See Vernon, 390 S.W.3d at 61; see also Wright, 26 S.W.3d at 578 (showing of equitable title based on performance under contract can constitute showing of greater right in property).
Also, Rhodes argues "the court is prohibited from awarding [Kelly] a claim for specific performance without there being a writing containing the terms of the agreement." However, "specific performance is not a separate cause of action, but rather it is an equitable remedy used as a substitute for monetary damages when such damages would not be adequate." Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied). The record shows Rhodes did not mention or address the availability of the remedy of specific performance in the trial court. Therefore, her argument on appeal respecting specific performance presents nothing for this Court's review. See TEX. R. APP. P. 33.1; see also Crump v. Frenk, 404 S.W.3d 146, 154 n.12 (Tex. App.—Texarkana 2013, no pet.) (although appellant raised issue in trial court respecting appellee's failure to prove damages, legal issue of whether trial court could award appellee specific performance as remedy was separate from that issue and could not be raised for first time on appeal); Franco v. Lopez, 307 S.W.3d 551, 554-55 (Tex. App.—Dallas 2010, no pet.) (where appellant's complaint that appellee was barred from seeking specific performance was asserted for first time on appeal, error was "waived" respecting that issue). On this record, we conclude the trial court did not abuse its discretion by concluding Kelly's petition was sufficient as to at least two of her claims, i.e., her claim for breach of contract and her "quiet title action."
Additionally, as described above, Rhodes complains of a lack of "sufficient evidence." Rhodes does not specifically describe whether that evidentiary complaint pertains to legal insufficiency or factual insufficiency. However, Rhodes complains the record shows no evidence of several elements of Kelly's causes of action, namely (1) a written agreement, (2) an "interest" of Kelly in the Property, and (3) improvements to the Property by Kelly. We construe those arguments as challenges to the legal sufficiency of the evidence to support implied findings of the trial court respecting liability. See, e.g., Morris v. Fuller, No. 02-09-00442-CV, 2011 WL 4711967, at *4 (Tex. App.—Fort Worth Oct. 6, 2011, no pet.) (mem. op.) (construing assertion of "no evidence" as legal sufficiency challenge). Assuming without deciding that a challenge to the legal sufficiency of the evidence to support liability is proper in this case, we address those challenges.
Although Rhodes acknowledges a "failure to answer," neither party addresses the propriety or impropriety of a challenge to the legal sufficiency of the evidence. See Adame, 2012 WL 2564717, at *3 (appellant is precluded from challenging legal and factual sufficiency of evidence supporting liability in no-answer default judgment).
As a preliminary matter, the record shows Rhodes's hearsay objection to Kelly's evidence respecting improvements was asserted for the first time in Rhodes's appellate reply brief. Therefore, Rhodes's hearsay complaint presents nothing for this Court's review. See Pickens v. Pickens, 62 S.W.3d 212, 216 n.2 (Tex. App.—Dallas 2001, pet. denied) (hearsay objection is waived if not asserted in trial court); see also TEX. R. APP. P. 33.1. Further, as described above, where certain elements are shown, a sale of land can be relieved from the statute of frauds. See Chambers, 241 S.W.3d at 687. Those elements are (1) payment of the consideration; (2) possession by the vendee; and (3) the making by the vendee of valuable and permanent improvements on the land with the vendor's consent or, without such improvements, the presence of facts that would make the transaction a fraud on the purchaser if the oral contract was not enforced. See Stovall & Assocs., 409 S.W.3d at 801.
The record shows Kelly testified in her affidavit,
9. . . . In or about October 2012, . . . Defendant Rhodes approached me with an offer to sell Defendants' entire interest in the Property to me in exchange for my providing full time care for her and [a sister of Rhodes and Kelly]. Additionally, I would be responsible for repairs to the house and for making it fully habitable once again (following Defendant Glover's aforementioned destruction). Finally, I was to pay all taxes and other amounts related to the Property as they became due, but was not responsible for any past due amounts that had been incurred by Defendants. In exchange for this, I was to receive full, unencumbered title to the Property from Defendant Rhodes.
10. I accepted Defendant Rhodes' offer and since October 2012 I have provided full time care for Defendant Rhodes and [a sister of Rhodes and Kelly], fixed up the Property and made it fully habitable. I have also resided exclusively in the Property and maintained it as my homestead. However, despite fulfilling all terms of the contract, and despite spending over $30,000.00 on improvements and expenses related to the Property, Defendant Rhodes has refused and continues to refuse to provide me with title to the Property.
11. Pursuant to the contract I was also to be reimbursed for the plumbing and water charges incurred by Defendants and paid by me, on their behalf, in 2011. Further, the Property was not owned free and clear (as Defendant Rhodes had represented to me) due to taxes incurred on the Property prior to 2012. In order to avoid foreclosure of the tax liens, I was forced in 2014 to pay $7,134.18 owed to the Dallas County by Defendants for their unpaid taxes through 2011. . . . Despite my demands, Defendants have refused and continue to refuse to reimburse me for these payments.
. . . .
13. . . . [D]uring the past three years, Defendant Rhodes has paid no funds for rent, taxes, insurance, repairs/maintenance, utilities, or for any other fees associated with the Property, and has not resided in the Property since at least 2009.
That evidence demonstrates Kelly (1) entered into an agreement with Rhodes, (2) paid the consideration, (3) took possession of the Property, and (4) made valuable improvement with the owner's consent. See Ratsavong, 176 S.W.3d at 668-69. Therefore, the record supports a conclusion that evidence of a written contract was unnecessary to establish liability respecting Kelly's breach of contract claim. See id. Also, the record shows Rhodes "refused . . . to provide [Kelly] with title to the Property" and did not make payments to Kelly pursuant to the alleged contract. On this record, we conclude the evidence is legally sufficient to support liability against Rhodes respecting Kelly's breach of contract claim. See Varel Indus., L.P., 2016 WL 4535779, at *5 (describing elements of breach of contract claim). Further, that same evidence shows an "interest" of Kelly in the Property for purposes of her claim to quiet title. See Vernon, 390 S.W.3d at 61; Wright, 26 S.W.3d at 578. Because the trial court's judgment can be upheld on the basis of either of those two claims, see Brauss, 411 S.W.3d at 620, we need not address Kelly's promissory estoppel claim.
We decide against Rhodes on her second issue.
IV. ATTORNEY'S FEES
A. Standard of Review and Applicable Law
The determination of whether attorney's fees are available in a particular case is a question of law, which we review de novo. See, e.g., Cent. Forest S/C Partners, Ltd. v. Mundo-Mundo, Inc., 184 S.W.3d 296, 299 (Tex. App.—Dallas 2005, no pet.) (citing Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex. 1999) (per curiam)). "Absent a mandatory statute, a trial court's jurisdiction to render a judgment for attorney's fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney's fees is a nullity." Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877 (Tex. App.—Dallas 2009, no pet.).
"A failure to segregate attorney's fees in a case containing multiple causes of action, only some of which entitle the recovery of attorney's fees, can result in the recovery of zero attorney's fees." Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). "However, if no one objects to the fact that the attorney's fees are not segregated as to specific claims, then the objection is waived." Id.
Section 38.001 of the civil practice and remedies code provides in part that a party may recover reasonable attorney's fees, in addition to the amount of a valid claim and costs, if the claim is for an oral or written contract. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2015).
B. Application of Law to Facts
In her third issue, Rhodes contends the trial court erred "in awarding [Kelly's] attorney fees based on the alleged lease agreement." According to Rhodes, (1) "[a]ttorney's fees must be specifically plead in order to be recovered"; (2) "[t]here is no claim related to the lease plead in [Kelly's] petition"; (3) "[t]he motion upon which the attorney fees were granted was [Kelly's] motion for default judgment"; (4) "[i]n that motion, [Kelly] is clearly asking for attorney fees based on the lease agreement"; and (5) "[t]his lease agreement, however, mention[s] nothing about attorney fees nor does [Kelly] have any claims against Ms. Rhodes that relate to the lease agreement." Additionally, Rhodes asserts "even if attorney fees were allowable in this situation the trial court still erred in granting them based on [Kelly's] motion and affidavit of her attorney because [Kelly's] attorney did not segregate the recoverable fees from the claims for which attorney fees are not recoverable."
Kelly responds that "[a]ttorney's fees were properly pled and awarded under Texas Civil Practice & Remedies Code § 38.001." According to Kelly, "[t]he phrase referring to the lease in [Kelly's] default judgment motion is likely a typographical error, but its presence does not negate [Kelly's] request in her pleadings for attorney's fees pursuant to [section 38.001]." Also, Kelly asserts "[Rhodes] was properly served with notice of [Kelly's] breach of contract claim" and that notice "clearly alleges that [Rhodes] and [Kelly] had a contract that was breached by [Rhodes] and that [Kelly] is seeking damages and attorney's fees as a result."
The record shows Kelly stated in her petition (1) "[i]n addition to the above amount, Plaintiff is entitled to recover reasonable attorney fees as defined in conformity with § 38.001 Tex. Civ. Prac. & Rem. Code" and (2) "Plaintiff is therefore entitled to recover from Defendant an additional sum to compensate Plaintiff for a reasonable fee for such attorney's necessary services in the preparation and prosecution of this action, as well as a reasonable fee for any and all necessary appeals to other courts." Subsequently, Kelly stated in her motion for default judgment, "Pursuant to the Lease, Plaintiff requested reasonable and necessary attorney fees and attaches as Exhibit 'J' the Affidavit of Corey Herrick proving attorney fees in this case and incorporates same by this reference." In that affidavit, Herrick stated in part (1) "Plaintiff retained me to represent her in this suit for breach of contract, suit to quiet title, promissory estoppel (in the alternative) and for recovery of her attorney's fees against Defendants" and (2) "[t]he novelty and difficulty of the questions involved in this case required that my firm spend twenty-seven (27) hours at a rate of up to Three Hundred Dollars ($300.00) per hour and incur expenses of $831.00, for a total of Six Thousand Ninety-One Dollars ($6,091.00)." The trial court (1) granted a default judgment against Rhodes on the claims in this case, which included breach of contract, and (2) awarded attorney's fees to Kelly in the amount of $6,091.00, plus additional fees in the event of post-judgment proceedings, without stating a specific basis for the attorney's fees.
Even assuming without deciding that Kelly's reference to the Lease in her request for attorney's fees in her motion for default judgment cannot be disregarded as a "typographical error," the record does not show the language used by her in that motion would limit the basis for her requested attorney's fees solely to the Lease. Rather, that request also unequivocally incorporated Herrick's statements in his affidavit that attorney's fees were being sought in connection with Kelly's claims in this case, including breach of contract. Thus, on its face, the motion for default judgment did not seek to eliminate or abandon the ground for recovery of attorney's fees pleaded by Kelly in her petition, but rather, at most, described an additional purported ground for recovery of those fees.
Nor does Rhodes specifically argue such.
To the extent Rhodes complains the ground for recovery of attorney's fees pleaded by Kelly in her petition did not authorize the attorney's fees awarded, "a party wishing to argue on appeal that a statute does not authorize an award of attorney's fees must preserve its complaint in the trial court." Enzo Investments, LP v. White, 468 S.W.3d 635, 651 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Because the record shows Rhodes did not address or mention attorney's fees in her motion for new trial or at any other stage of the proceedings in the trial court, that complaint presents nothing for this Court's review. See id. Likewise, to the extent Rhodes complains of a failure to segregate the attorney's fees in question, she did not object in the trial court to a lack of segregation of those fees. See Solis, 951 S.W.2d at 389. Consequently, Rhodes's complaint respecting failure to segregate attorney's fees was "waived." See id.
We decide Rhodes's third issue against her.
V. CONCLUSION
We decide against Rhodes on her three issues. The trial court's judgment is affirmed. 160888F.P05
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
JUDGMENT
On Appeal from the 68th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-15-06302.
Opinion delivered by Justice Lang. Justices Myers and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee JERRIE KELLY recover her costs of this appeal from appellant JOAINNE RHODES. Judgment entered this 27th day of June, 2017.