Opinion
No. 05-07-01602-CV
Opinion issued November 13, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-07-09468-A.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Appellant Crown Asset Management, LLC, appeals the dismissal of its breach of contact lawsuit against Katrina Cornish for want of prosecution. In two issues, Crown argues the trial court erred by dismissing the case for want of prosecution and erred by "dismissing" Crown's motion for default judgment. We affirm.
Background
On June 22, 2007, Crown sued Cornish for breach of contract, alleging Cornish defaulted in making required payments on a credit card account to Crown's assignor, Providian, and that Cornish owed $2300. Crown's petition included seventeen requests for admissions. The record shows Cornish was served with process on July 19, 2007. However, she did not answer or otherwise appear. The trial court sent Crown a letter dated June 28, 2007, advising that case had been placed on the court's dismissal docket and would be dismissed on November 9, 2007, at 9:00 a.m., unless Crown "proved up a default judgment on or prior to that date."
Crown filed its motion for default judgment and supporting affidavit on October 9, 2007. The trial court then sent Crown a letter dated October 12, 2007, advising it was returning Crown's proposed default judgment unsigned because of specified deficiencies in Crown's motion. That letter reads in part as follows:
The record does not contain the proposed default judgment.
The enclosed Default Judgment is being returned to you unsigned because of one or more of the following reasons concerning the Motion for Default Judgment on file:
Petition does not give fair notice of claim against Defendant;
. . .
Judgment relies on causes of action that are not adequately pleaded;
. . .
Damages cannot be accurately calculated, no written instrument attached to petition;
No evidence of sale and delivery of merchandise or performance of services;
No evidence that the amount of the account or price charged is in accordance with an express contract or is usual, customary and reasonable;
. . .
No evidence of a systematic record kept and supported by an affidavit
Other: RFA's deficient
The boldface passage is handwritten; the remainder is typed.
Please understand that it is NOT NECESSARY to re-file all the paperwork associated with the Motion for Default Judgment, only the items identified above as necessary before a Default Judgment can be signed.
Crown took no further action.
On November 9, 2007, the trial court signed an order dismissing the case for the following reasons: (1) "[f]ailure to appear for a hearing or trial of which notice was had"; and (2) "[w]ant of [p]rosecution." Crown timely perfected this appeal. Cornish did not file a brief.
Analysis
Dismissal for want of prosecution
In its first issue, Crown argues the trial court erred by dismissing its case for want of prosecution. Crown does not challenge the other reason the court's order stated for dismissal: "failure to appear for a hearing or trial of which notice was had."
Rule 165a allows a trial court to dismiss a case sua sponte: (1) when a party seeking affirmative relief fails to appear for a hearing or trial of which it had notice; or (2) when a case is not disposed of within the time standards promulgated by the supreme court. Tex. R. Civ. P. 165a(1), (2); Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). "In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence." Villarreal, 994 S.W.2d at 630.
As a general rule, we must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support that judgment. See, e.g., Old Republic Ins. Co. v. Sisavath, No. 05-07-1391-CV, 2008 WL 4695491, at *2 (Tex.App.-Dallas Oct. 27, 2008, no pet.) (mem. op.); Hill v. Am. Home Assurance Co., No. 05-05-01431, 2007 WL 1139671, at *1 (Tex.App.-Dallas Apr. 18, 2007, no pet.) (mem. op.); Session v. Argonaut Sw. Ins. Co., No. 05-03-01479, 2004 WL 2378364, at *1 (Tex.App.-Dallas Oct. 25, 2004, no pet.) (mem. op.); Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The rule "is based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who does not challenge that error on appeal." Britton, 95 S.W.3d at 681.
We see no evidence in the record that Crown failed to appear at a hearing of which it had notice. However, Crown does not allege the trial court erred by dismissing the case for failure to appear at a hearing, and our rules of appellate procedure preclude us from reversing a trial court's order for a reason that was not raised on appeal. See, e.g., Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) ("We have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error."). We therefore overrule Crown's first issue.Motion for default judgment
In its second issue, Crown argues the trial court erred by "dismissing" its motion for default judgment.
According to the record, however, the trial court did not issue an order either denying or dismissing Crown's motion for default judgment. Instead, it returned the proposed default judgment unsigned because of "one or more of the following reasons." In order to complain on appeal that a trial court refused to rule on a "request, objection, or motion," the record must show "the complaining party objected to the refusal." Tex. R. App. P. 33.1(a)(2)(B); Old Republic Ins. Co., No. 05-07-1391-CV, 2008 WL 4695491, at *2. Crown does not argue, and the record does not show, that Crown objected to the trial court's refusal to sign the default judgment. Thus, this issue has not been preserved for our review. Id. We overrule Crown's second issue.
We affirm the trial court's judgment.