Opinion
NO. 01-16-00643-CV
07-10-2018
ROSE PATRICIA ANN SHIELDS, OSCAR URBINA, ARNOLD SHIELDS, INDIVIDUALLY, D/B/A GALVESTON SERVICE COMPANY, D/B/A BLU SHIELDS CONSTRUCTION, AND BLU SHIELDS CONSTRUCTION, LLC, Appellants v. COMMERCIAL STATE BANK, DOUGLAS FAVER, SUZANNE HUBBARD, DANIEL JURGENA, ROXANNE TOMOLIALO, JOSEPH COX, THOMAS WALSH, AND GINA F. DOMINIQUE, Appellees
On Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2015-06750
MEMORANDUM OPINION
Appellants Rose Patricia Ann Shields, Oscar Urbina, Blu Shields Construction, LLC, and Arnold Shields, individually, d/b/a Galveston Service Company, d/b/a Blu Shields Construction challenge a post-answer default judgment rendered against them in favor of Suzanne Hubbard, Daniel Jurgena, Roxanne Tomolialo, Joseph Cox, and Thomas Walsh. In four issues, Appellants assert (1) the trial erred by rendering "an a ambiguous judgment that is not definite and certain"; (2) the judgment should be set aside because Appellants "establish the Craddock factors"; (3) the evidence is not legally and factually sufficient to support the judgment; and (4) the amount of damages awarded does not conform with the pleadings.
Although listed as appellees in the style, Commercial State Bank and Douglas Faver are not parties to this appeal. Appellants initially sued the bank and Faver but later nonsuited their claims against them.
We affirm as modified.
Background
Arnold Shields, individually, d/b/a Galveston Service Company, d/b/a Blu Shields Construction, and Blu Shields Construction, LLC build homes in Galveston and Harris Counties. During 2013 and 2014, Arnold Shields and his businesses entered into three separate construction contracts: (1) with Suzanne Hubbard and Daniel Jurgena to build a home; (2) with Roxanne Tomolialo and Joseph Cox to build a restaurant; and (3) with Thomas Walsh and Gina F. Dominique to build a home. After disputes arose regarding each of the contracts, Shields and his businesses filed suit in February 2015 against Hubbard, Jurgena, Tomolialo, Cox, Walsh and Dominique. The suit alleged causes of action against the six defendants for breach of contract and for tort theories, including fraud, civil conspiracy, intentional infliction of emotional distress, and business disparagement.
The six defendants answered and asserted counterclaims against Shields and his businesses. In their counterclaim, Walsh, and Dominique brought claims for fraud, breach of contract, money had and received, and violations of the Texas Deceptive Trade Practices Act. Hubbard, Jurgena, Tomolialo, and Cox counterclaimed, alleging claims of fraud and breach of contract. They also added Rose Patricia Ann Shields and Oscar Urbina as "counter-defendants."
Walsh and Dominique filed a motion to dismiss Shields's and his companies' claims under the Texas Citizens Participation Act (TCPA). In September 2015, the trial granted the motion in part, dismissing Shields's and his companies' claims for business disparagement, intentional infliction of emotional distress, and conspiracy relating to business disparagement, but the court denied the motion to dismiss as Shield's and his companies' claims for breach of contract, fraud, or tortious interference. See generally TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011 (West 2015). The trial court later granted Walsh and Dominique's motion for attorney's fees under the TPCA, awarding them $8,400 in fees against Shields and his businesses. See id. § 27.009(a).
Trial was originally set for July 11, 2016. On May 20, 2016 and July 18, 2016, respectively, the trial court granted the motions to withdraw filed by the attorneys representing Shields, his companies, Rose Patricia Anne Shields, and Oscar Urbina (hereinafter Appellants). The trial court then reset trial for August 29, 2016.
Appellants did not appear at trial. As a result, the trial court dismissed all of Appellants' claims against Walsh, Dominque, Hubbard, Jurgena, Tomolialo, and Cox. However, the counter-claims filed against Appellants proceeded to trial.
The trial court signed a final judgment on September 15, 2016. In the judgment, the trial court found that Appellants had "proper notice of the trial setting" but nonetheless "failed to appear for trial." Based on the counterclaims against Appellants, the trial court awarded (1) actual damages of $87,700 to Walsh; (2) actual damages of $181,101 to Jurgena and Hubbard; and actual damages of $98,847 to Cox and Tomolialo. All of the counter-plaintiffs were awarded their attorney's fees, and Walsh was also awarded punitive damages and treble damages under the DTPA. The prevailing parties requested findings of fact and conclusions of law, but none were signed by the trial court.
Gina Dominque was a counter-plaintiff along with Walsh. For reasons not apparent from the record, Dominque was not awarded damages.
Appellants appealed the September 15, 2016 judgment by filing a notice of appeal on October 12, 2016. They did not file a motion for new trial or other post-judgment motion to challenge the default judgment. Appellants also did not request preparation of the reporter's record or make arrangements to pay for it. Appellants now raise four issues, challenging the default judgment rendered against them.
Appellants initiated this appeal by filing a notice of appeal in August 2016, appealing the order awarding attorney's fees under the TCPA. The October notice of appeal, appealing the final judgment, was also filed under this appellate cause number.
Setting Aside Default Judgment
In their second issue, Appellants assert that the post-answer default judgment should be set aside under the test established in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). There, the Texas Supreme Court established three requirements that a defendant must satisfy in order to have a default judgment set aside and obtain a new trial: (1) the failure to file an answer or appear at a hearing was not intentional or the result of conscious indifference, but was a mistake or accident; (2) a meritorious defense; and (3) a new trial will not result in delay or prejudice to the plaintiff. Id.
Appellants do not dispute that they were aware of the August 29, 2016 trial setting. Nonetheless, they claim, with regard to the first Craddock factor, that their failure to appear at trial "was not due to conscious indifference." Appellants cite the withdrawal of their attorneys as the reason they did not attend trial. They assert that they did not have adequate time to retain new counsel nor did they, as pro se litigants, have adequate time to prepare for trial.
Appellants acknowledge that, following their counsels' withdrawal, the trial court reset trial to a later date, but they assert that they did not have sufficient time to hire new counsel before trial or prepare for trial. The record, however, does not reflect that Appellants requested any further continuance of trial or otherwise informed the trial court of any difficulties they were having in retaining new counsel after trial was reset Cf. Aduli v. Aduli, 368 S.W.3d 805, 817-18 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (concluding party failed to preserve error regarding the timing of attorney's withdrawal on the day of trial because party only opposed motion to withdraw but did not request a continuance).
Appellants filed a notice of appeal on October 12, 2016, 27 days after the September 15, 2016 default judgment. Thus, Appellants knew about the default judgment within the 30-day period in which they could have filed a motion for new trial. See TEX. R. CIV. P. 329b.
The trial court granted the post-answer default judgment against Appellants because they failed to appear at the trial. But Appellants did not file a motion for new trial or otherwise raise in the trial court any of the arguments they now present in their brief to support setting aside the default judgment under Craddock. As a prerequisite to this Court's review, the record must show that Appellants raised the matter complained of to the trial court in the form of a timely request, objection, or motion. TEX. R. APP. P. 33.1(a); see also Evans v. Linares, No. 14-14-00468-CV, 2015 WL 1874232, at *2 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015, pet. dism'd w.o.j.) (mem. op.) (holding that complaints on which appellant relied to set aside default judgment were waived because they were not presented to trial court). Accordingly, Appellants' request that the default judgment be set aside under Craddock is waived. See Evans, 2015 WL 1874232, at *2; Washington v. Taylor, No. 01-08-00255-CV, 2010 WL 1571201, at *2 (Tex. App.—Houston [1st Dist.] Apr. 8, 2010, no pet.) (mem. op.) (holding that that appellant waived his complaint that he did not receive notice of hearing because he did not file motion for new trial).
Moreover, by not filing a motion for new trial, Appellants did not introduce any evidence extrinsic to the record to support satisfaction of any of the Craddock factors. As illustrated by the above discussion, the record contains no evidence bearing on, at a minimum, the first Craddock factor. Thus, a motion for new trial was essential for Appellants to introduce the extrinsic evidence needed to satisfy their burden. See Onwubuche v. Olowolayemo, No. 01-10-00945-CV, 2012 WL 1067950, *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no pet.) (mem. op.) ("Because the defaulting party has the burden to show that the elements of the Craddock test are satisfied, . . . the defaulting party must put forward any necessary evidence on these issues; typically a motion for new trial is the vehicle for offering such evidence into the record."); Harris v. Burks, No. 01-06-00128-CV, 2007 WL 1776048, *2 (Tex. App.—Houston [1st Dist.] June 21, 2007, no pet.) (mem. op.) ("[C]omplaints regarding a trial court's failure to set aside a default judgment must be raised in a motion for new trial because the trial court must hear evidence to determine whether the Craddock factors have been met.").
We overrule Appellants' second issue.
Sufficiency of the Evidence
In their third issue, Appellants assert that "the evidence in this matter is not legally or factually sufficient to support the Final Judgment."
The court reporter filed an information sheet with this Court, indicating that there is a reporter's record. She also informed the Court that Appellants have not "requested that the reporter's record be prepared" nor have they "paid or made arrangements to pay for the record."
In their brief, Appellants point out that, initially, they were pro se on appeal. However, they ultimately retained counsel, who filed a brief on their behalf. Appellants contend that, while pro se, they "ask[ed] for all materials required for appeal," but "a reporters' record was not included." However, Appellants do not point to a request in the record in which they specified preparation of the reporter's record nor do they contend that they made payment arrangements for the record. See TEX. R. APP. P. 34.6(b)(1) ("At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter's record."). Appellants acknowledge that their appellate counsel could have requested the reporter's record but state, "Due to time constraints of the briefing process, Appellants' new counsel cannot wait to make another request, which would take several weeks, to resolve this matter."
An appellant has the burden to bring forward a sufficient record to show the trial court's claimed error. Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When an appellant brings a legal or factual sufficiency of the evidence challenge, it is the appellant's burden to show there was insufficient evidence submitted at trial. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991).
Here, Appellants chose to file their brief and have the case submitted without the reporter's record. In the absence of a reporter's record, we must presume that the record supports the trial court's factual determinations supporting the judgment. See Schafer, 813 S.W.2d at 155; Roberson v. Chevalier, No. 01-13-00307-CV, 2014 WL 3512767, at *2 (Tex. App.—Houston [1st Dist.] July 15, 2014, no pet.) (mem. op.); Nicholson, 226 S.W.3d at 583.
We overrule Appellants' third issue with regard to their challenge to the legal and factual sufficiency of the evidence.
Excessiveness of Actual Damages
Also in their third issue, and in their fourth issue, Appellants complain that the amount of actual damages awarded by the trial court exceeds the amount damages "sought by the pleadings." Specifically, Appellants point out that, in his pleading, Walsh requested actual damages of $68,867.20 but was awarded actual damages of $87,700 in the judgment. Hubbard, Jurgena, Tomolialo, and Cox did not specify in their counter-petitions the exact of amount of actual damages sought from Appellants. Nonetheless, Appellants assert that the damages awarded to the counter-plaintiffs "are not supportable by the pleadings and evidence," citing the factual allegations and documents attached to the counter-petitions.
A default judgment, like all judgments, must conform to the pleadings. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); see also TEX. R. CIV. P. 301 ("The judgment of the court shall conform to the pleadings[.]"). A default judgment cannot be rendered for an amount greater than the amount pleaded. Capitol Brick, Inc. v. Fleming Mfg. Co., Inc., 722 S.W.2d 399, 401 (Tex. 1986). However, we have held, in a default-judgment case, that any error with respect to awarding damages in an amount greater than had been pled is waived if the complaining party fails "to object to the amount of the judgment." Siegler v. Williams, 658 S.W.2d 236, 240 (Tex. App.—Houston [1st Dist.] 1983, no writ); see also Coleman v. Dean, No. 04-14-00811-CV, 2015 WL 5156921, *6 (Tex. App.—San Antonio Sept. 2, 2015, pet. dism'd) (holding complaint that damages award exceeded amount pled waived when not raised on trial court). "The party making such an objection should do so in a motion to limit the judgment to the amount pleaded or raise the issue in a motion for new trial." Siegler, 658 S.W.2d at 240.
Here, Appellants were aware of the judgment within the 30-day period following its signing. During this period, Appellants could have filed a motion for new trial or other post-judgment motion to alert the trial court to their objection regarding the amount of the damages award and to afford the trial court an opportunity to remedy any error. However, Appellants failed to do so. Thus, any error with respect to the excessiveness of the damages award is waived. See id.
We overrule the remainder of Appellants' third issue and their fourth issue.
Ambiguity of the Judgment
In their first issue, Appellants contend that the trial court erred by rendering "an ambiguous judgment that is not definite and certain." They point out that "[a] judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated." Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994).
Appellants assert that the judgment is not definite and certain because it awards damages to Walsh against "Plaintiffs and Counter-Defendants" without specifically identifying the counter-defendants against whom Walsh obtained judgment. Appellants correctly point out that, while they were sued by other counter-plaintiffs, Rose Patricia Ann Shields and Oscar Urbina were not sued by Walsh.
Appellants correctly point out that the recitals on the first page of the judgment also define "Plaintiffs and Counter-Defendants" in different ways. In the judgment's first paragraph "Plaintiffs and Counter-Defendants" are limited to "Arnold Shields, Individually, Arnold Leo "Blu" Shields, Individually, Arnold Shields d/b/a Galveston Service Company, Arnold Shields d/b/a Blu Shields Construction and Blu Shields Construction, LLC." The next paragraph in the judgment defines "Counter-Defendants" as "Arnold Shields, Individually, Arnold Leo "Blu" Shields, Individually, Arnold Shields d/b/a Galveston Service Company, Arnold Shields d/b/a Blu Shields Construction and Blu Shields Construction, LLC, Rose Patricia Ann Shields and Oscar Urbina." The third paragraph then defines "Plaintiffs and Counter-Defendants" to include "Arnold Shields, Galveston Services Company, Blu Shields Construction, and Blu Shields Construction, LLC, Rose Patricia Ann Shields and Oscar Urbina." In short, the phrase "Plaintiffs and Counter-Defendants" appears to have varying meanings within the judgment. Thus, the phrase is ambiguous when used alone in the judgment to award damages to Walsh against "Plaintiffs and Counter-Defendants" without identifying the counter-defendants from whom Walsh may recover. As a result, the phrase may fairly be read to include Rose Patricia Ann Shields and Oscar Urbina. It is undisputed that Walsh did not name Rose Patricia Ann Shields and Oscar Urbina as counter-defendants.
The Supreme Court of Texas has recognized that "Rule 239 of the Texas Rules of Civil Procedure provides for default judgment only against 'a defendant.'" Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 65 (Tex. 2008) (citing TEX. R. CIV. P. 239). And we are mindful that "[i]t is . . . essential to due process in our civil justice system that judgment may not be granted in favor or against a party not named in the lawsuit." Metromedia Rest. Servs., Inc. v. Strayhorn, 188 S.W.3d 282, 286 (Tex. App.—Austin 2006, pet. denied) (citing, inter alia, Texaco, Inc. v. Wolfe, 601 S.W.2d 737, 742 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.)); see also Fuqua v. Taylor, 683 S.W.2d 735, 738 (Tex. App.—Dallas 1984, writ ref'd n.r.e.) ("Judgment may not be granted in favor of a party not named in the suit as a plaintiff or a defendant."). Here, Rose Patricia Ann Shields and Oscar Urbina had no notice that Walsh was pursuing claims against them and were not afforded any opportunity to respond to any claims by him.
Walsh concedes that, if we conclude—as we have—that the phrase "Plaintiffs and Counter-Defendants" is ambiguous with respect to the award he received in the judgment, we may modify the judgment to accurately reflect the parties against whom he is entitled to recover. We agree. This Court has the power to modify the judgment of the trial court to make the record speak the truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Shamoun v. Shough, 377 S.W.3d 63, 78 (Tex. App.—Dallas 2012, pet. denied); see also Fuqua, 683 S.W.2d at 738-39 (modifying judgment to include only those persons who were parties to suit). Accordingly, given the record and the circumstances of this case, we modify the judgment to reflect that Walsh recover only against those parties that he named in his counter-petition as counter-defendants, which does not include Rose Patricia Ann Shields and Oscar Urbina. See TEX. R. APP. P. 43.2(b).
We sustain Appellants' first issue, as discussed.
Conclusion
We affirm the judgment of the trial court as modified.
Laura Carter Higley
Justice Panel consists of Justices Higley, Brown, and Caughey.