Opinion
No. 05-09-00333-CV
Opinion issued July 23, 2010.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-01195-2008.
Before Justices MOSELEY, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
We withdraw our June 17, 2010 opinion and judgment. This is now the opinion of this Court.
Phillip M. Carter d/b/a Carter Contractors appeals the trial court's denial of his motion for new trial. In two issues, Carter claims the trial court erred in awarding additional attorney's fees and the trial court abused its discretion in denying his motion for new trial because Wendell M. Lavergne did not prove Carter received notice of the hearing. We affirm.
Lavergne, the owner of the Vanity Salon Day Spa, sued Carter for breach of contract, fraud, negligent misrepresentation, malice, and violations of the Texas Deceptive Trade Practices Act. On October 30, 2007, following a nonjury trial, the trial court orally ruled in favor of Lavergne, but one month later, the trial court signed an order dismissing the case for want of prosecution.
On May 21, 2008, Lavergne filed a verified petition for bill of review stating he had not received notice from the trial court of its intent to dismiss the case for failure to submit timely a judgment to the trial court and the failure to act was an accident. The following day, the trial court granted the bill of review and ordered the dismissal set aside. Carter filed a motion to set aside the bill of review and, thereafter, an answer. A hearing was set for November 10, 2008. Carter filed a motion for continuance on the ground he had not received adequate notice of the November 10 hearing. The continuance was granted and the hearing reset for January 8, 2009. When Carter did not appear at the hearing, the trial court signed an order granting the bill of review and a final judgment in Lavergne's favor.
On January 22, 2009, Carter filed an unverified motion for new trial claiming he had not received notice of the January 8 hearing. In support of the motion, he attached a copy of the November 7, 2008 correspondence from Lavergne informing Carter of the November 10, 2008 hearing and Carter's November 7, 2008 motion for continuance. That same day, Lavergne filed a response, attaching the affidavit of Elizabeth Velazquez, a paralegal at the law firm representing Lavergne. Velazquez testified she spoke with opposing counsel's paralegal on November 7, 2008 regarding the dates available for a hearing and the paralegals agreed to have the hearing set on January 8, 2009. Velazquez also testified that on December 29, 2008, she faxed a letter to Carter's counsel's office confirming the 9:00 a.m. hearing on January 8, 2009.
One week later, Carter filed a "Notice of Filing of Business Records Affidavit." The notice was accompanied by an affidavit of Kelly Kemp, the office manager and custodian of business records at the law firm representing Carter. In the affidavit, Kemp testified the pages attached to her affidavit were originals or copies of reports detailing the facsimile activity for the law firm on December 29, 2008 as well as January 21, 2009.
No testimony was given at the February 12, 2009 hearing on Carter's motion for new trial. However, during a break, Carter filed an amended motion for new trial purporting to be verified. When the hearing resumed, Carter stated he had previously filed a business records affidavit and asked the trial court to take judicial notice of the records. Carter also offered "those records in support of [Carter's] Motion for New Trial." The trial court replied, "All right. Then I will take judicial notice of the same." At the conclusion of the hearing, the trial court denied Carter's motion for new trial. This appeal followed.
In his first issue, Carter contends the trial court abused its discretion in denying his motion for new trial. Carter claims he properly raised the issue of lack of notice in both his motion for new trial and his amended motion for new trial and Lavergne failed to refute his claim.
We review a trial court's ruling on a motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). We may not overrule the trial court's decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles. Landerman v. State Bar of Tex., 247 S.W.3d 426, 433 (Tex. App.-Dallas 2008, pet. denied).
A motion for new trial "shall be filed prior to or within thirty days after the judgment or other order complained of is signed." Tex. R. Civ. P. 329b(a). A party may file an amended motion for new trial without leave of court before any earlier motion for new trial is overruled and within thirty days after the judgment. Tex. R. Civ. P. 329b(b). The court may not enlarge the period for taking any action under the rules relating to new trials except as the rules allow. Tex. R. Civ. P. 5. "Read together, [these rules] demonstrate that an amended motion for new trial filed more than thirty days after the trial court signs a final judgment is untimely." Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
To be entitled to a new trial, the defaulting party in a post-answer default judgment must first establish the failure to appear was not intentional or the result of conscious indifference. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005). Evidence that notice of the hearing was not received is sufficient to require setting aside a default judgment. Id.
The record contains Carter's unverified motion for new trial, filed fourteen days after the January 8, 2009 judgment. Attached to the motion is a copy of Lavergne's November 7, 2008 correspondence informing Carter of the November 10, 2008 hearing and Carter's November 7, 2008 motion for continuance. Neither document addresses or establishes Carter did not receive notice of the January 2009 hearing. Furthermore, although the motion for new trial alleges Carter did not receive notice, it is an unverified motion and, therefore, is not evidence that Carter did not receive notice of the hearing.
Carter's verified amended motion for new trial was filed February 12, 2009-thirty-five days after the trial court's final judgment was signed. Because the amended motion for new trial was filed outside the thirty-day period imposed by rule 329b, the amended motion for new trial was untimely and could not be considered in determining whether Carter established he did not receive notice of the hearing.
Also in the record is Carter's January 29, 2009 one-page document entitled "Notice of Filing of Business Records Affidavit." Attached to the notice is Kemp's affidavit in which she states she is the custodian of business records at the law firm representing Carter. According to Kemp, the attached pages 1 and 2 detail the facsimile activity for the law firm on December 29, 2008; the attached page 3 details the facsimile activity for January 21, 2009. Kemp states page three "evidences that any facsimiles received from or transmitted to fax number 214-265-8196 are so indicated on the report as such number will appear on such activity report." Kemp does not testify to whom the 214-265-8196 fax number belongs or explain why the presence of the number on page 3 is relevant to the motion for new trial. Carter first asked the trial court to take judicial notice of the records, then offered "those records in support of" the motion for new trial. Although the trial court did not admit the affidavit and records into evidence at the hearing on the motion for new trial, the trial court did state it would take judicial notice of the records. There was no testimony or evidence offered at the hearing regarding the significance of the documents. The facsimile records fail to establish Carter did not have notice of the hearing.
By filing the motion for new trial, Carter had the initial burden to establish he did not receive notice of the hearing. Because he did not do so, we need not address whether the affidavit filed in support of Lavergne's response to the motion is sufficient to establish Carter received notice or to refute his claim of no notice. Because Carter failed to establish he did not receive notice of the January 2009 hearing, we cannot conclude the trial court abused its discretion in denying his motion for new trial. We overrule Carter's first issue.
In his second issue, Carter contends the trial court erred in granting "additional attorney's fees" to Lavergne, "more than doubling the original judgment without notice to appellant." The entire argument presented by Carter encompasses one paragraph. He cites no authority and provides no analysis. See Tex. R. App. P. 38.1(i). Because he fails to properly brief this issue, we conclude it is waived.
Furthermore, although Carter complains that the January 8, 2009 final judgment awards additional attorney's fees, the record shows there was no judgment awarding Lavergne any attorney's fees prior to this judgment. In fact, the case was dismissed for want of prosecution in November 2007 because Lavergne failed to timely present the trial court with a judgment. To the extent Carter complains the January 2009 judgment awards a different amount than what the trial court's orally pronounced following trial, written orders or judgments control over conflicting oral pronouncements. See Wise Bus. Servs., Inc. v. Incisive Info, Inc., 2009 WL 998685, at *4 (Tex. App.-Dallas Apr. 15, 2009, no pet.) (mem. op.) (trial court's judgment and findings show trial court simply changed mind after oral pronouncement and before judgment; in civil cases, any time conflict exists between oral pronouncements made by judge and written judgment, written judgment controls); In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 914 n. 3 (Tex. App.-Dallas 2006, orig. proceeding [mand. denied]) (holding that written order controlled over conflicting oral pronouncement). We overrule Carter's second issue.
We affirm the trial court's judgment.