Summary
noting that defective answer, including one that lacks certificate of service, is sufficient to preclude default judgment and holding that plaintiff is not entitled to default judgment when some or all defendants failed to serve him with copy of their answer
Summary of this case from Dougherty v. BrewerOpinion
No. 04-04-00165-CV
Delivered and Filed: February 2, 2005.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-16453, Honorable David Berchelmann, Jr., Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Alexis Morganfield appeals the trial court's order granting a directed verdict in favor of John Lopez, National Car Rental System, Inc., and ANC Rental Corporation. Morganfield presents five issues on appeal, asserting the trial court erred by: (1) denying Morganfield's motion for reconsideration of default judgment; (2) granting the appellees' motion in limine; (3) denying Morganfield's motion for continuance; (4) denying Morganfield's request for a jury trial; and (5) holding Morganfield, who appeared pro se, to the same legal standards as others. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex.R.App.P. 47.4.
Although the appellees contend that Morganfield has failed to appeal the final judgment thereby failing to preserve any issue for appeal, Morganfield addresses the reason the directed verdict was improper in addressing whether the denial of his request for a jury trial resulted in harm.
1. In his first issue, Morganfield contends that the trial court erred in denying his motion for reconsideration of default judgment. Morganfield asserts that he was entitled to a default judgment because some or all of the appellees failed to serve him with a copy of their answer. Assuming Morganfield has preserved his complaint for appellate review and assuming some or all of the appellees failed to serve Morganfield with their answer, a defective answer, including one that lacks a certificate of service, is sufficient to preclude a default judgment. See Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 658 (Tex.App.-San Antonio 2002, no pet.); Hock v. Salaices, 982 S.W.2d 591, 594 n. 4 (Tex.App.-San Antonio 1998, no pet.). The clerk's record contains a copy of an answer filed on behalf of all of the appellees before the date Morganfield requested a default judgment. Accordingly, Morganfield's first issue is overruled.
2. In his second issue, Morganfield complains that the trial court erred in granting the appellees' motion in limine because it was not signed or served on him before trial. Morganfield's argument focuses on the effect that granting the motion had on his ability to introduce a settlement agreement to which ANC was not a party and his opportunity to question Lopez regarding the source of his paycheck. Neither Morganfield nor the appellees provide a record citation to the trial court's ruling granting the appellees' motion. Assuming the motion was ruled upon, a trial court's ruling granting a motion in limine is not a ruling on the admissibility of the evidence and does not preserve error. Hartford Accident and Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963); Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 511 (Tex.App.-El Paso 1999, no pet.); Southwest Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex.App.-Fort Worth 1999, pet. denied). To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court in order to complain of the exclusion on appeal. Wyler, 999 S.W.2d at 511; Southwest Country Enterprises, Inc., 991 S.W.2d at 493.
In this case, Morganfield did not make an offer of proof with regard to any evidence he contends was erroneously excluded. Accordingly, Morganfield has failed to preserve this complaint for our review.
We further note that when Morganfield referred to the motion in limine during the course of the trial, the trial court responded, "Look, you're trying the case to me. You don't have to worry about the motion in limine."
3. In his third issue, Morganfield contends that the trial court erred in denying his motion for continuance to enable him to pursue additional discovery regarding ANC. Morganfield's request for a continuance was not in writing, and his oral request for a continuance does not preserve error. See Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex.App.-Dallas 2003, pet. denied). Even if error was preserved, the granting or denial of a motion for continuance is within the trial court's sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). The trial court's action will not be disturbed unless the record discloses a clear abuse of discretion. Id. In this case, the record reflects that Morganfield had been granted at least four prior continuances. The order granting the fourth continuance stated, "No more continuances will be allowed." Morganfield's primary complaint to the trial court in seeking another continuance was his inability to retain counsel; however, Morganfield's second attorney withdrew more than nine months before trial. Accordingly, the trial court did not abuse its discretion in denying the motion for continuance.
4. In his fourth issue, Morganfield contends that the trial court erred in proceeding without a jury. By failing to object to the absence of a jury when a trial court calls a case for a bench trial, any error in the denial of a jury is waived. Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat'l Assurance Co., 875 S.W.2d 385, 387 (Tex.App.-Dallas 1993, no writ). Morganfield relies heavily on this court's opinion in Cardenas v. Montfort, Inc., 894 S.W.2d 406 (Tex.App.-San Antonio 1994), writ denied, 924 S.W.2d 156 (Tex. 1996). In Cardenas, however, we emphasized that the record "clearly show[ed] a lack of assent to the removal of the cause from the jury docket." 894 S.W.2d at 409. In emphasizing the unique facts presented in Cardenas, we stated:
This is not a case in which a party with a perfected right to a jury trial appeared in court, announced ready for trial and proceeded to put on its case with an opening statement, witness examination and a closing argument without any objection, comment or argument on the failure to call a jury. This case involves an extremely unusual set of facts. The record shows that an unsophisticated plaintiff appeared for trial without an attorney, protested that she could not proceed pro se, did not announce ready, did not cross-examine any witnesses, presented only vague oral testimony about her damages, and protested throughout the entire proceeding that she needed the assistance of an attorney. The record further shows that the trial court granted her attorney's motion to withdraw a mere thirteen days before trial.
894 S.W.2d at 409. In this case, Morganfield presented an opening statement, called Lopez as a witness and extensively questioned him, presented his own testimony, and introduced exhibits as evidence. Morganfield had been given four continuances, and his second attorney withdrew more than nine months before trial. The only reference Morganfield made to a jury request was in the following exchange that occurred after the opening statement and the witness testimony was presented:
THE COURT: Go ahead, sir. Go ahead. Do you have any exhibits or anything that you want to offer or are you ready to rest?
MR. MORGANFIELD: Yes, sir, well, I would like to have these medical records in as exhibits. Well, I don't really know the law because I asked for a jury trial, but I didn't get it because I didn't pay the money and he waived a jury trial and I don't know if my attorney ever taken [sic] care of that matter. I've been abandoned. But I would like to have the medical records in as exhibits.
After introducing the exhibits, Morganfield rested. Unlike the facts presented in Cardenas, we hold that under the facts presented in this case, Morganfield waived his complaint regarding his request for a jury trial.
Prior to his opening statement, Morganfield acknowledged the difference between a jury trial and a bench trial. In response to the trial court's instruction to call his first witness, Morganfield stated, "I would like to bring — right now, I would like to — since you are the judge in this matter so I take it you're the jury, so I would like to speak to you first." The trial court responded, "Okay. You're going to make an opening statement. Go ahead, let me hear it."
5. In his last issue, Morganfield contends that the trial court erred in holding him "to the strict standards of the laws" since he was a "pro se plaintiff." Pro se litigants, however, are held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex.App.-San Antonio 1999, pet. denied). Accordingly, Morganfield's fifth issue is overruled.
The trial court's judgment is affirmed.