Opinion
No. 05-09-01168-CV
Opinion filed September 28, 2011.
On Appeal from the 14th Judicial District Court Dallas County, Texas, Trial Court Cause No. 08-13097-A.
Before Justices BRIDGES, RICHTER, and MURPHY.
MEMORANDUM OPINION
John D. Copeland raises three issues on appeal related to a final default judgment rendered in favor of Teresa Ward Cooper and against him for $1.3 million in unliquidated damages. We conclude the failure to have a court reporter make a record of the hearing on unliquidated damages constitutes error requiring reversal, and we therefore remand for a new trial on unliquidated damages.
Although "Jay Sandon Cooper" is listed as the appellee, the judgment rendered in the trial court was in favor of Teresa Ward Cooper. Teresa intervened in the underlying suit, and Jay non-suited his claims. The parties were never realigned.
Procedural Background
Following the death of Cooper's prior attorney, she hired Copeland to represent her in a pending federal lawsuit she had brought against the Dallas Police Association for alleged unlawful discrimination and retaliation. Copeland was hired just before Cooper's response to the Association's summary judgment motion was to be filed. Cooper learned Copeland was ineligible to practice law in Texas when the Association filed a motion to strike the summary judgment response Copeland filed on Cooper's behalf. Judgment was eventually granted against Cooper on her federal claims.
Thereafter, Cooper's husband, Jay Sandon Cooper, filed a pro se action against Copeland alleging deceptive trade practices claims and seeking monetary damages of the $2,500 paid to Copeland, plus additional damages of $1,200,000 (incidental and consequential), $1,200,000 (mental anguish), and unspecified punitive damages. Cooper intervened in that action.
Copeland was served with the original petition and the petition in intervention; he did not file an answer. On June 26, 2009, following several dismissal notices to the Coopers, the associate judge conducted a prove-up hearing. After the hearing, Cooper's husband non-suited his claims, and the associate judge signed a final judgment in favor of Cooper for $1,302,500. The judgment contains the following recitation prior to the decretal:
The Court, after hearing the evidence and arguments of counsel, is of the opinion that [Cooper] is entitled to recovery of and from [Copeland] the sum of $1,202,500.00, plus an additional $50,000.00 for mental anguish, as well as an additional $50,000.00 for punitive or exemplary damages, and all costs of court and prejudgment and post-judgment interest as allowed by law.
Copeland filed a timely, but unverified motion for new trial on July 27, 2009. The motion was never set for hearing. On September 9, 2009, the day Copeland's motion for new trial was overruled as a matter of law, he filed an unsworn "Affidavit" at 4:24 p.m. in support of his "Amended Motion for New Trial." Thereafter, on October 5, 2009, Copeland filed an amended motion for new trial and an affidavit sworn to before a notary public. The trial court conducted a hearing on the amended motion on October 9, 2009, the day the trial court's plenary jurisdiction expired, and denied the motion after finding Copeland had not sought leave of court to file his untimely amended motion. Copeland appealed.
Copeland raises three issues on appeal: (1) whether the judgment should be set aside because he satisfied the Craddock requirements; (2) whether a new trial on unliquidated damages is required because he did not participate in the June 26 prove-up hearing, no reporter's record exists for appellate review, and the absence of the record is not due to any fault of Copeland; and (3) whether a new trial on unliquidated damages is required because he did not receive notice of the prove-up hearing. We first address the absence of a reporter's record.
Absence of Reporter's Record for Unliquidated Damages
In no-answer default cases, a defendant's liability for all causes of action pleaded is conclusively established and all allegations of fact are deemed admitted except as to the amount of unliquidated damages. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam). A plaintiff must prove its claim for unliquidated damages with competent evidence that is consistent with the cause of action pleaded. See Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.-Dallas 1994, no writ). The trial court also is required to conduct a hearing as to unliquidated damages. Tex. R .Civ. P. 243. In the absence of a court reporter's record or other evidence, an appellate court is unable to determine if sufficient evidence supports the amount of damages awarded. See Carstar Collision, Inc. v. Mercury Fin. Co., 23 S.W.3d 368, 370 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). If an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, a new trial may be required where the right to have the case reviewed on appeal can be preserved in no other way. Id.
Here, it is undisputed there was no court reporter present at the rule 243 prove-up hearing and the record contains no exhibits or other evidence supporting the amount of damages awarded. In response to Copeland's arguments and referencing Texas Government Code section 54.509, which allows for court reporters and other means of preserving the record of a hearing before an associate judge, Cooper first argues that Copeland had the right to request a reporter and did not. But she does not dispute that Copeland had no notice of the hearing and did not appear. Next, Cooper argues the fact finder has great discretion in awarding damages and it is presumed, in the absence of a complete record, the evidence supports the trial court's judgment. While that is the general rule, it does not displace the requirement for reversal when, by no fault of appellant, he is unable to produce a record. Id. Finally, Cooper attempts to distinguish case law relied on by Copeland that requires reversal when there is no record of a default hearing. She argues that the cases are either family law cases, where a reporter is required, or are not good law.
The law is clear that in post-answer default judgments-where judgment cannot be rendered on the pleadings and a plaintiff must offer evidence to prove his case-the failure to have the court reporter present to make a record is reversible error. See Nelson v. Britt, 241 S.W.3d 672, 677 (Tex. App.-Dallas 2007, no pet.). Equally clear is that the court must hear evidence of unliquidated damages in a no-answer default. See Tex. R .Civ. P. 243; Dolgencorp of Tex., Inc., 288 S.W.3d at 930. While Cooper emphasizes in response to Copeland's due process arguments that she was not required to give Copeland notice of her rule 243 hearing on unliquidated damages, she also does not dispute Copeland's absence, the court reporter's absence, or the lack of any record evidencing the $1.3 million in unliquidated damages awarded against Copeland. Without any record of the evidence resulting in this final judgment, Copeland has no means to preserve his right to appellate review of the award; similarly, we are unable to perform any meaningful analysis. See Carstar Collision, Inc., 23 S.W.3d at 370. We therefore sustain Copeland's second issue based on the undisputed absence of a reporter's record that is not due to any fault of Copeland. We do not reach the remaining points argued by Copeland in his second and third issues. Tex. R. App. P. 47.1. We also observe that in his reply brief on appeal, Copeland argues for the first time the associate judge did not have jurisdiction to conduct the rule 243 hearing. In light of our resolution of issue two, we need not address this argument further. Id.
Motion for New Trial and Craddock Factors
In his first issue, Copeland contends he satisfied the Craddock factors and is also entitled to a new trial on liability. Cooper argues in response that Copeland's untimely new trial motion cannot be the basis of appellate review. We agree with Cooper on this issue.
A motion for new trial is timely if it is filed within thirty days after the date on which the trial court judgment is signed. See Tex. R. Civ. P. 329b(a); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 739-40 (Tex. 2001) (per curiam); Equinox Enters., Inc. v. Associated Media Inc., 730 S.W.2d 872, 874 (Tex. App.-Dallas 1987, no writ). A motion for new trial not ruled on within seventy-five days after the judgment is signed is overruled by operation of law. Tex. R. Civ. P. 329b(c). Although Copeland's original unverified motion for new trial was timely, it was overruled by operation of law. Id. His amended motion was filed without leave of court and more than thirty days after the appellate timetable began to run. It was untimely. Tex. R. Civ. P. 329b(b); In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) (orig. proceeding) ("an amended new-trial motion is timely filed only before the court overrules a prior one"). As a result, the amended motion is a nullity and cannot be considered. Equinox Enters., Inc., 730 S.W.2d at 875 (citing L.B. Foster Co. v. Glacier Energy, Inc., 714 S.W.2d 48, 49 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.)). We therefore review only the original motion for new trial to determine if Copeland satisfied the Craddock factors.
The trial court would have abused its discretion by not granting a new trial if Copeland met all three Craddock elements-(1) Copeland's failure to answer was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; (2) the motion for a new trial set up a meritorious defense; and (3) the motion was filed at a time when the granting thereof would occasion no delay or otherwise work an injury to Cooper. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Copeland never brought his motion for new trial to the trial court's attention, and it was overruled by operation of law. See Tex. R. Civ. P. 329b(c). But Copeland did not argue that his original unverified motion met the Craddock factors-rather, he relied on his amended motion and the affidavit filed in support. Because it was untimely, we cannot assign error to that motion. See Equinox Enters., Inc., 730 S.W.2d at 875.
Copeland bases his original motion for new trial on lack of notice of the default hearing and lack of evidence to support the judgment and damage awards. Although he stated in the motion he has a "meritorious defense" because the damages Cooper "claims to have suffered were not due to any fault" of Copeland, he had the burden of not only alleging a meritorious defense, but also supporting the assertion with affidavits or other evidence. See id. at 876; see also Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (motion for new trial to set aside default judgment must be supported by affidavits or other competent evidence). Copeland also had to meet all the Craddock factors, and he offered no argument whatsoever on the third requirement in his original motion for new trial. Even if we consider the unsworn "affidavit" filed in support of the amended motion after 4:00 p.m. on the day his original motion was overruled by operation of law, that document similarly does not mention the third Craddock factor. We will not disturb a trial court's ruling on a motion for new trial unless an abuse of discretion is shown. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). On this record, the trial court did not abuse its discretion by allowing the unverified motion for new trial to be overruled by operation of law.
Conclusion
We reverse that portion of the judgment awarding Cooper $1.3 million in unliquidated damages and remand for a new trial on those damages. In all other respects, we affirm the trial court's judgment.