in Re: Estate of James Donald Loveless

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00005-CV ______________________________ IN RE ESTATE OF JAMES DONALD LOVELESS, DECEASED On Appeal from the 62nd Judicial District Court Franklin County, Texas Trial Court No. 9149 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Rosa Loveless appeals the trial court's judgment in favor of Wanda Loveless in an action to determine the heirs of James Donald Loveless, who died intestate in a traffic accident. The trial court signed the judgment on November 19, 2002. Rosa had to file a notice of appeal by December 19, 2002. See Tex. R. App. P. 26.1. Rosa filed her notice of appeal on January 10, 2003. Therefore, her appeal is untimely. Rosa filed a motion for extension of time in which to file her notice of appeal on January 10, 2002, in which she asserts she did not receive notice of the judgment until December 31, 2002. The rules allow this Court to extend the time for filing a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, a party files the notice of appeal in the trial court and files a motion in this Court requesting an extension of time. Tex. R. App. P. 26.3. In Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), the Texas Supreme Court held, under the Rules of Appellate Procedure then extant, that a motion for extension is implied when an appellant, acting in good faith, files an appeal bond after the time allowed by the rules, but still within the time for filing a request for an extension. Courts since Verburgt have applied its reasoning under a later version of the Rules of Appellate Procedure to notices of appeal filed within fifteen days of the last day for filing a notice of appeal. See, e.g., Chilkewitz v. Winter, 25 S.W.3d 382, 383 (Tex. App.-Fort Worth 2000, no pet.) (per curiam); Indus. Servs. U.S.A., Inc. v. Am. Bank, N.A., 17 S.W.3d 358, 359 (Tex. App.-Corpus Christi 2000, no pet.) (per curiam); Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex. App.-Houston [1st Dist.] 1999, no pet.). In those cases, the courts implied a request for an extension from the late filed notice of appeal and gave the appellant an opportunity to give a reasonable explanation of the need for an extension. This case does not present a situation in which we can imply a request for an extension because the notice of appeal was filed twenty-two days after it was due to be filed, well beyond the deadline under the rule for filing a request for an extension. See Tex. R. App. P. 26.3. This Court is without jurisdiction over the appeal. Rosa's motion to extend is overruled. (1) We dismiss the appeal for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: January 22, 2003 Date Decided: January 23, 2003 1. If, as Rosa contends, she did not receive timely notice of the judgment, she may have a remedy under Tex. R. Civ. P. 306a(4), (5). e. See, e.g., Murat\ v. Micand, 25 S.W. 312, 313 (Tex. Civ. App. 1894, no writ) (written contract was\ unenforceable because purpose of lease was for operation of house of ill repute, but\ parties nonetheless had landlord-tenant relationship for which landlord could sue for back\ rent). The parties may enter into a contract for sale of the property that provides that the\ parties are related as landlord and tenant in the event of a default, and the buyer thereafter\ defaults on the contract for sale. See, e.g., Martinez v. Daccarett, 865 S.W.2d 161 (Tex.\ App.—Corpus Christi 1993, no writ). Or, in the absence of a fixed term of occupancy or\ a written rental agreement, the landlord\'s transference of occupational possession by\ delivering keys to the tenant may establish a landlord-tenant relationship. See, e.g.,\ Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El Paso 1994, writ denied). \ In this case, Gomez alleged she had a rental agreement with Raines. Such an\ agreement would establish a landlord-tenant relationship between the parties. Once\ Raines failed to appear at trial and the trial court granted a default judgment against her,\ Raines was deemed to have admitted the existence of the landlord-tenant relationship\ given that Gomez\' petition alleged the existence of such. \ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( " \r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( " \r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( ' Close'); floatwnd.document.write( " " ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); } In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00037-CV ______________________________ MELISSA RAINES, Appellant V. SONIA GOMEZ, Appellee On Appeal from the County Court at Law Hopkins County, Texas Trial Court No. CV01-06329 Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross O P I N I O N In 2001, the justice court for precinct 2, place 1, of Hopkins County awarded Sonia Gomez a judgment of $5,000.00 plus court costs against Melissa Raines. Raines appealed to the County Court at Law of Hopkins County, but lost on a trial de novo when she failed to appear at trial. On further appeal to this Court, we found the trial court erred by granting a default judgment in favor of the plaintiff because Raines had not received proper notice of the trial setting. We then reversed the trial court's judgment and remanded the case for a new trial. Raines v. Gomez, 118 S.W.3d 875 (Tex. App.—Texarkana 2003, no pet.) ("Raines I"). Our mandate issued December 10, 2003. The trial court conducted a new trial November 20, 2003—several days before we issued our mandate in the earlier appeal. Again, Raines did not attend the trial. The trial court, once more, granted a default judgment in favor of Gomez, which Raines now appeals and raises twelve points of error. We overrule points of error one through eleven, sustain Raines' final issue, and remand the case for a new hearing on damages. Errors in Findings of Fact and Conclusions of Law In her first and third points of error, Raines challenges the trial court's findings of fact and conclusions of law. "When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding." Alenia Spazio, S.P.A. v. Reid, 130 S.W.3d 201, 209 (Tex. App.—Houston [14th Dist.] 2003, pet. filed). "After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id. The trial court issued the following findings of fact and conclusions of law: FINDINGS OF FACT 1. Melissa Raines failed to appear on November 20, 2003. The whereabouts of Ms. Raines has [sic] been unknown to the court and the county clerk for approximately two years. All correspondence by Ms. Raines is through the mail with no return address. Ms. Raines has continuously refused to keep the court informed of her whereabouts and all due diligence was used by the clerk to keep her informed of court dates. 2. After no testimony was presented, the trial court deferred to the lower court's decision. 3. The Appellant failed to deposit the monthly rent during the proceedings as required by the court, with the exception of $200.00, which is one month[']s rent. The court ordered that sum to be submitted to Appellee. CONCLUSIONS OF LAW 1. The court found all procedural requirements, including proper notice[,] was given by Sonia Gomez to Melissa Raines. 2. Sonia Gomez is entitled to back rent and the all [sic] other relief allowed by law. In her third point of error, Raines contends the trial court erred by finding she did not deposit $200.00 into the court's registry. Raines has clearly misunderstood the trial court's findings: the trial court expressly found Raines had deposited $200.00 into the court's registry, which it awarded to Gomez in damages. We overrule Raines' third point of error. In her first point of error, Raines contends the trial court erred by finding that Raines' location was unknown. Raines contends she provided the trial court with a rural route address out of Paris, Texas. In her brief to this Court, Raines does not direct our attention to any change of address notice in the record. See Tex. R. App. P. 33.1 (record must show complaint was made to trial court by timely request, objection, or motion that complied with requirements of Rules of Civil Procedure); Tex. R. App. P. 38.1(h) (brief must contain appropriate citations to record). Nonetheless, we have independently reviewed the record and find the record lacks any such notice by Raines. The clerk's record, however, does contain no fewer than twenty-seven envelopes received from Raines, none of which bear her return address. Raines filed various motions with the trial court—numbering over thirty-five separate filings—but these lack her return mailing address, even though such is required by the Rules of Civil Procedure. See Tex. R. Civ. P. 57 (party not represented by attorney shall sign pleadings, state address and telephone number). We also take judicial notice of Raines' correspondence with this Court, which shows that none of Raines' envelopes have her return address and that none of her letters include a return mailing address. See Tex. R. Evid. 201(b) (judicially noticed fact must be one capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); Tex. R. Evid. 201(f) (judicial notice may be taken at any stage of proceeding). Moreover, all of Raines' filings with this Court—most especially her appellant's brief—fail to include her mailing address and telephone number, even though such is required by the Rules of Appellate Procedure. See Tex. R. App. P. 9.1(b). The record does include one envelope from the county clerk addressed to Raines at a Paris address. There is, however, no postal cancellation date on the envelope or other indication showing when the envelope was mailed. Raines invites this Court to speculate that this single envelope is proof the trial court had notice of Raines' proper mailing address. However, given the dearth of evidence to support such a conclusion, and considering the overwhelming weight of the record evidence in this case supporting the trial court's conclusion that Raines failed to supply the trial court with proper notice of her new mailing address, we cannot say the trial court's finding of fact on this issue is not supported by the record. We overrule Raines' first point of error. Trial De Novo In her second point of error, Raines contends the trial court erred by "upholding" the judgment of the justice court rather than conducting a trial de novo. When a matter is appealed from a justice court to a county or district court, the cause shall be tried de novo. Tex. R. Civ. P. 574b. The record from the justice court, however, is forwarded with the appeal and becomes part of the record in the trial de novo. See Tex. R. Civ. P. 574. The record in this case shows the trial court called the matter for trial November 20, 2003. Raines failed to appear. The trial court's judgment reflects it rendered a default judgment based on Raines' failure to appear. A trial court may award a default judgment to a plaintiff if the defendant fails to appear at trial. Tex. R. Civ. P. 239; In re Parker, 20 S.W.3d 812, 815 (Tex. App.—Texarkana 2000, no pet.). In this case, the trial court acted pursuant to its express authority under Rule 239. No error occurred. The Mandate In her fourth point of error, Raines contends the trial court lacked jurisdiction to enter its November 20 judgment because our mandate of reversal in the first appeal had not yet issued. "A mandate is the official notice of the action of the appellate court, directed to the court below, advising it of the action of the appellate court and directing [the trial court] to have [the appellate court's] judgment duly recognized, obeyed, and executed." Lewelling v. Bosworth, 840 S.W.2d 640, 642 (Tex. App.—Dallas 1992, no writ). However, the issuance of the appellate court's mandate is unnecessary to render a judgment final. Cont'l Gin Co. v. Thorndale Mercantile Co., 254 S.W. 939, 940–41 (Tex. 1923). "The Texas Rules of Civil Procedure dealing with the issuance and return of the mandate subsequent to judgment of remand in the [appellate court] are procedural and not necessary to the jurisdiction of the trial court." Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex. 1972) (citing Cont'l Cas. Co. v. Street, 364 S.W.2d 184 (Tex. 1963)). Accordingly, the trial court did not lack jurisdiction to conduct a new trial before the issuance of our mandate. We overrule Raines' fourth point of error. Lack of Evidence to Support the Judgment In her fifth issue, Raines contends the trial court's judgment is not supported by any evidence because Gomez failed to offer evidence or testimony at trial. "As a general rule, no evidence is required to support a default judgment." Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2001, no pet.). When a default judgment is granted because a party has failed to appear for trial, "it is said that the non-answering party has 'admitted' the facts properly pled and the justice of the opponent's claim . . . ." Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); see also Osteen, 38 S.W.3d at 814. Raines failed to appear at trial; the trial court properly deemed her failure as an admission to the facts pled in Gomez' original petition. The evidence is, therefore, sufficient to support the trial court's judgment. Notice of Trial Setting In her sixth point of error, Raines complains the trial court's judgment should be reversed because she failed to receive notice of the trial setting when the court mailed the notice to an address in Sulphur Springs, rather than to a different address. Tex. R. Civ. P. 21a requires the trial court to mail notices of trial to all litigants "to the party's last known address." As discussed above, Raines did not file a notice of change of address with the trial court. The documents she filed with the trial court, as well as the envelopes in which they were mailed, generally lacked Raines' return address. Raines has not provided her correct mailing address on any of her correspondence with this Court. The record shows the trial court mailed notice of the trial setting to Raines' last known address, which was in Sulphur Springs. We overrule Raines' sixth point of error. Notice To Vacate In her seventh point of error, Raines contends the trial court erred in finding Gomez had, before filing her eviction suit, provided Raines with notice to vacate the property in question. Tex. Prop. Code Ann. § 24.005(a) (Vernon 2000) requires a landlord to give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. In her sworn complaint for eviction, Gomez stated, "Plaintiff [Gomez] has given defendants a written notice to vacate and demand for possession. Such notice was delivered to defendants [Raines] on the 8[th] day of Aug, 2001 by personal delivery or by mail." When, as discussed earlier, Raines failed to appear at trial, she was deemed to have admitted the allegations contained in Gomez' sworn original petition. See Stoner, 578 S.W.2d at 682. Accordingly, the record supports the trial court's finding that Gomez had met the conditions precedent to instituting an action for forcible entry. Cf. Goggins v. Leo, 849 S.W.2d 373, 380 (Tex. App.—Houston [14th Dist.] 1993, no writ) (evidence showed tenant failed to vacate after landlord made demand for possession). We overrule Raines' seventh point of error. Raines' Motion to Vacate the Judgment In her eighth, ninth, and tenth points of error, Raines contends the trial court erred by failing to grant her motion to vacate the default judgment. Raines asserts in her eighth point of error that no enforceable rental agreement existed because the residence was not suitable for habitation. The Texas Legislature enacted subchapter B of Chapter 92 of the Property Code to incorporate the implied warrant of habitability from Texas common law. Churchill Forge, Inc. v. Brown, 61 S.W.3d 368, 376 (Tex. 2001) (citing Kamarath v. Bennett, 568 S.W.2d 658 (Tex. 1978) (common-law warranty of habitability)). "Subchapter B sets out specific minimum standards of habitability, procedures for enforcing those standards, and remedies for the landlord's failure to meet those standards." Id.; see also Tex. Prop. Code Ann. §§ 92.051–.061 (Vernon 1995 & Supp. 2004). Raines contends the home was not suitable for habitation because "the heat, the water heater, and the kitchen stove were all gas appliances" and, therefore, it was impossible to live in the house without gas. The clerk's record contains a document, purportedly from TXU Electric & Gas, that supposedly gives notice to the occupants of the residence in question that the company has turned off the gas because of leaking gas pipes. The document, however, was not admitted at trial, nor was it accompanied by a business records affidavit to explain its source or authenticity. Instead, it appears Raines merely filed the purported document during the course of the litigation, yet did so without accompanying verification (such as a business records affidavit). The document is, at best, mere hearsay, given Raines' apparent failure to properly authenticate the filing. See, e.g., Tex. R. Evid. 803(6) (business records of regularly conducted activity excepted from hearsay prohibition). As such, we cannot consider it as evidence that the house was uninhabitable. There is nothing in the record to support Raines' claim that "the heat, the water heater, and the kitchen stove were all gas appliances, . . . ." Such an assertion, even if true, is outside the record before us. See Tex. R. App. P. 38.1(h) (contentions made on appeal must be supported by appropriate citation to record). There is nothing else in the record to suggest the house was uninhabitable. We therefore overrule Raines' eighth point of error. In her ninth point of error, Raines claims the trial court erred by not granting her motion to vacate the judgment because, according to Raines, Gomez pled no viable cause of action and failed to properly join a claim for rent by not alleging specific dates for which rent was owed. A plaintiff's original petition should contain "a statement in plain and concise language of the plaintiff's cause of action . . . ." Tex. R. Civ. P. 45(b). "That an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole." Id. "The test of the 'fair notice' pleading requirement is whether an opposing attorney of reasonable competence, with pleadings before him, can ascertain nature and basic issues of controversy and testimony probably relevant." City of Alamo v. Casas, 960 S.W.2d 240, 251 (Tex. App.—Corpus Christi 1997, no pet.). "The purpose of the fair notice rule is to give the opposing party information sufficient to enable him to prepare a defense." Id. (citing Tex. R. Civ. P. 45, 47; Roark v. Allen, 633 S.W.2d 804, 809–10 (Tex. 1982); Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982); Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex. 1981)). In this case, Gomez' original complaint sued for eviction and "unpaid rent." The petition also alleged Raines had failed to vacate the property since May 1, 1998. Though Gomez did not specifically state she was seeking unpaid rent for the period of May 1, 1998 through October 15, 2001, we believe an attorney of reasonable competence could have reviewed Gomez' original petition and fairly determined Gomez was seeking both to have Raines evicted and to recover back rent for that same time period. We also believe Gomez' petition gave Raines sufficient information to enable her to prepare a defense, should she have one. Accordingly, we cannot say Gomez failed to plead a viable cause of action. We overrule Raines' ninth point of error. In her tenth point of error, Raines contends the trial court erred by not vacating the default judgment when Raines allegedly did not receive forty-five days' advance notice of the trial setting. The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Tex. R. Civ. P. 245 (emphasis added). This case had previously been set for trial December 20, 2001. Accordingly, the trial court was not required to give Raines forty-five days' notice of future hearing dates, but only required to give reasonable notice. See id. In this case, the trial court sent Raines a notice of the trial setting twenty-eight days in advance, which we hold is a reasonable amount of time given the procedural history of the case. We overrule Raines' tenth point of error. Arbitration Agreement In her eleventh point of error, Raines contends the trial court lacked jurisdiction because the parties had an arbitration agreement. Raines has not directed our attention to any arbitration agreement between the parties. Nor has our review of the record uncovered an alleged arbitration agreement between the parties. Accordingly, Raines has not brought forth an adequate record to support our review of this alleged error. See Tex. R. App. P. 38.1(h) (argument should contain citation to record in support of contention made). We overrule Raines' eleventh point of error. Award of Damages In her final point of error, Raines contends the trial court erred in awarding damages to Gomez when Gomez did not testify at trial regarding that issue. "A trial court may award unliquidated damages based on affidavit testimony." Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 37 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Tex. Commerce Bank v. New, 3 S.W.3d 515, 516–17 (Tex. 1999) (holding that, in no-answer default judgments, affidavits as unobjected-to hearsay constitute probative evidence, thereby satisfying Tex. R. Civ. P. 243's requirement that there be evidence of unliquidated damages)). Unliquidated damages are those "that cannot be determined by a fixed formula and must be established by a judge or jury." Black's Law Dictionary 419 (8th ed. 2004). Moreover, the Rules of Civil Procedure describe the types of damages that are recoverable by a landlord in a suit for forcible entry and detainer: On the trial of the cause in the county court the appellant or appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal [from justice court]. Damages may include but are not limited to loss of rentals during the pendency of the appeal and reasonable attorney fees in the justice and county courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property Code have been met. Only the party prevailing in the county court shall be entitled to recover damages against the adverse party. He shall also be entitled to recover court costs. He shall be entitled to recover against the sureties on the appeal bond in cases where the adverse party has executed such bond. Tex. R. Civ. P. 752. In this case, the trial court heard detailed testimony of Raines' failure to pay rent for specific months in 2001. Unfortunately for Gomez, however, this testimony occurred during the first trial, the judgment for which was reversed. On remand, the trial court did not take judicial notice of Gomez' prior testimony. Nor did Gomez present any evidence about the number of months Raines had failed to pay rent, the cost of repairing any damage to the structure that was not attributable to normal wear and tear of the facilities, any lost rental income during the pendency of the appeal, or any other damages Gomez might have had related to this matter. Additionally, while Gomez' sworn complaint does claim damages of $5,000.00, the complaint provides no evidence or allegations that quantify or substantiate a claim for that amount. In essence, the trial court had no evidence before it to support a judgment for damages. Accordingly, we sustain Raines' final point of error. We must now determine whether the lack of evidence regarding damages requires reversal of the trial court's full judgment, or whether we may remand the case for a new hearing only on damages. If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error. The court may not order a separate trial solely on unliquidated damages if liability is contested. Tex. R. App. P. 44.1(b). Raines' failure to appear at trial constituted an admission of liability. Stoner, 578 S.W.2d at 682. The Rules of Appellate Procedure expressly authorize us to remand the case for a hearing on unliquidated damages when, as is the case here, conducting a separate hearing solely on damages will not be unfair to the parties. Alvarado v. Reif, 783 S.W.2d 303, 305 (Tex. App.—Eastland 1989, no writ) (without record evidence of unliquidated damages, case must be reversed for new trial as to damages issue); cf. Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001) (appellate court erred by remanding case for new hearing on damages only where defendant contested liability at jury trial); Browning Oil Co. v. Luecke, 38 S.W.3d 625, 647–50 (Tex. App.—Austin 2000, pet. denied) (interest of justice required reversing case for new hearing only on damages). Accordingly, we remand the case for a new hearing limited to the issue of Gomez' damages. Summary For the reasons stated, we affirm the trial court's default judgment, but remand the case for a new hearing on the issue of Gomez' damages. Donald R. Ross Justice Date Submitted: June 8, 2004 Date Decided: July 30, 2004