Opinion
01-22-00154-CV
01-24-2023
JULIUS JOHNSON, Appellant v. NEAL VERMA AND AMITHA VERMA, Appellees
On Appeal from County Civil Court at Law No. 4 Harris County, Texas Trial Court Case No. 1178514
Panel consists of Justices Goodman, Hightower, and Guerra.
MEMORANDUM OPINION
RICHARD HIGHTOWER JUSTICE
Appellant, Julius Johnson, appeals the trial court's judgment dismissing his claims against appellees, Neal Verma and Amitha Verma (the Vermas). The judgment of dismissal resulted from Johnson's failure to replead as ordered by the trial court when it granted the Vermas' special exceptions. In what we construe as one issue, Johnson contends that he did not receive notice of the special exceptions. We affirm.
Background
This appeal arises from a landlord-tenant dispute. On November 30, 2021, Johnson, acting pro se, filed suit against the Vermas. In his original petition, Johnson stated that he was a tenant of the Cabo San Lucas Apartment Complex (the Complex), and he alleged that the Vermas were his landlords.
Johnson claimed that, between August 18, 2020 and August 20, 2020, someone had broken into his apartment twice through a window. He alleged that, although he reported the break-ins, the Complex did not fix his window until August 27, 2020. Johnson also asserted that criminal activity regularly occurred at the Complex. He claimed that the Complex failed to address the criminal activity and lacked security. Johnson alleged that he did not feel safe living there, requiring him to stay in other locations. In his petition, Johnson stated that the Complex's address was "10910 Gulf Fwy" but requested that mail be sent to him at a Reed Road address.
Johnson claimed that the Vermas had violated Texas Property Code section 92.056. See Tex. Prop. Code § 92.056 ("Landlord Liability and Tenant Remedies; Notice and Time for Repair"). He sought $250,000 in damages from each of the Vermas for pain, suffering, and emotional distress.
On December 14, 2021, the Vermas filed their original answer and a verified denial to the suit. The Vermas asserted, inter alia, that Johnson's petition contained "a defect in parties" because they were not the owners of the Complex, as alleged by Johnson. Rather, they were the owner's "agents," who had acted on the owner's behalf, indicating that they were the Complex owner's employees. The Vermas asserted that Johnson's lease expressly prohibited him from holding the owner's employees liable.
With their answer, the Vermas also filed special exceptions to Johnson's original petition. In particular, they excepted (1) to Johnson's failure to plead the necessary elements of a section 92.056 claim, (2) to Johnson's failure to plead any factual basis under which the Vermas, as employees, could be held liable under section 92.056 for the owner's alleged failure to repair Johnson's damaged apartment, and (3) to Johnson's damages claim because section 92.056 "does not provide a basis for damages related to pain and suffering and emotional distress."
On January 4, 2022, the trial court signed an order granting the Vermas' special exceptions. The trial court ordered Johnson (1) "[to] amend his Original Petition to identify any applicable causes of action that may apply"; (2) "[to] amend his Original Petition to allege all the elements necessary to support his cause of action under Section 92.056 of the Texas Property Code"; and (3) "[to] amend his Original Petition to remove his claim for pain and suffering and emotional distress."
The order required Johnson to replead "in accordance with this Order within 15 days." The order warned Johnson that, if he did not replead as ordered, his claims against the Vermas would be dismissed.
Johnson did not replead, and the trial court signed an order of dismissal on January 31, 2022. The order stated that all of Johnson's claims against the Vermas were dismissed because he had failed to replead as previously ordered.
Proceeding pro se, Johnson now appeals the trial court's judgment dismissing his claims. He does not assert that the trial court incorrectly determined that the Vermas' special exceptions should be granted. Instead, in what we construe as one issue, Johnson complains that he did not receive notice of the Vermas' special exceptions. See Caldwell v. Garfutt, No. 03-14-00019-CV, 2016 WL 105920 at *2 (Tex. App.-Austin Jan. 7, 2016, pet. denied) (mem. op.) (addressing "issues [raised by pro se appellant] as best as we can").
Analysis
A trial court sustaining special exceptions must give the plaintiff an opportunity to amend the pleading to cure the defect. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). If a plaintiff fails to amend his pleadings after being ordered to do so, the trial court may dismiss the case. See Hamby v. State Farm Mut. Auto. Ins. Co., 137 S.W.3d 834, 836 (Tex. App.-Houston [1st Dist.] 2004, pet. denied).
On appeal, Johnson asserts that he was not served with the Vermas' special exceptions. To the extent that Johnson's complaint raises a due-process concern, we note that a party must first present due-process arguments to the trial court to pursue them on appeal. Goffney v. Hous. Indep. Sch. Dist., No. 01-08-00063-CV, 2009 WL 2343250, at *6 (Tex. App.-Houston [1st Dist.] July 30, 2009, pet. denied) (mem. op.); see Ratsavong v. Menevilay, 176 S.W.3d 661, 671 (Tex. App.-El Paso 2005, pet. denied) (holding that due-process claims were waived because they were not brought to trial court's attention). Here, Johnson fails to direct us to the place in the record reflecting that he presented an objection to the trial court about non-service of the special exceptions. Thus, any due-process complaint has not been preserved. See Tex. R. App. P. 33.1(a); Menevilay, 176 S.W.3d at 671.
We also note that the certificate of service signed by the Vermas' attorney shows that the special exceptions were sent by certified mail to the Reed Road address-the address that Johnson indicated in his petition was his mailing address. On appeal, Johnson states that "the mailing address I provided [was] not my living home" because at that time he did not "hav[e] a residence anymore." However, Johnson was required to provide a proper address for the Vermas to use in serving him with the special exceptions. See Tex. R. Civ. P. 57 ("A party not represented by an attorney shall sign his pleadings, state his address, telephone number, email address, and, if available, fax number."). Thus, the Vermas were entitled to rely on the Reed Road address Johnson that provided in his original petition
In addition, Texas Rule of Civil Procedure 21a provides that "court papers served by certified mail must be sent 'by certified or registered mail, to the party's last known address.'" In re E.A., 287 S.W.3d 1, 5 (Tex. 2009) (quoting Tex.R.Civ.P. 21a). "Service by mail is 'complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office of official depository. . ..'" Id. (quoting Tex.R.Civ.P. 21a). A certificate of service is prima facie evidence of service. Id. Accordingly, the certificate of service signed by the Vermas' attorney was prima facie proof that Johnson was served with the special exceptions. See id. And, as mentioned, Johnson does not show that he complained to the trial court about a lack of service. Cf. Tex. R. Civ. P. 21a(e) (providing that party may offer proof that document not received, or, if service was by mail, that document was not received within three days from date that it was deposited in mail).
Moreover, Johnson does not dispute that he received the trial court's January 4, 2022 order granting the special exceptions. The order specified what Johnson needed to amend in his petition and directed him to replead within 15 days or face dismissal of his claims. In short, the record indicates that Johnson not only had notice of the special exceptions and that that they were granted, but it also reflects that he was given an opportunity to cure the deficiencies in his petition. As mentioned, a trial court sustaining special exceptions must give the plaintiff an opportunity to amend the pleading to cure the defect. Friesenhahn, 960 S.W.2d at 658. Here, the record reflects that Johnson had that opportunity but failed to act, resulting in the dismissal of his claims.
We note that the record contains a January 26, 2022 letter from Johnson to the trial court, indicating that he had "receive[d] [his] mail" from the trial court on January 24, 2022. In the letter, Johnson appeared to seek an extension to permit him "[t]o show proof of [his] petition" to demonstrate why he was "not comfortable with the living environment of [the Complex]." The letter reiterated Johnson's allegations in his petition about criminal activity in the Complex and his claim that he could not live there because he did not feel safe. The letter did not ask the trial court for additional time to replead and did not address the special exceptions or the deficiencies in his original petition. Instead, the letter essentially reasserted many of the allegations made in Johnson's original petition.
On appeal, Johnson also asserts that the Vermas' special exceptions were granted because he "was not aware due to being a Pro Se." However, it is well-established that pro se litigants "are held to the same standard as parties represented by counsel to avoid giving unrepresented parties an advantage over represented parties." Stewart v. Tex. Health & Hum. Servs. Comm'n, No. 03-09-00226-CV, 2010 WL 5019285, at *1 n.1 (Tex. App.-Austin Dec. 9, 2010, no pet.) (mem. op.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)).
We overrule Johnson's sole appellate issue.
Conclusion
We affirm the judgment of the trial court.