Texas Faith Partners, D/B/A Traditions Square Apartments v. Kimberly Lindke

IN THE TENTH COURT OF APPEALS No. 10-06-00028-CV Texas Faith Partners, d/b/a Traditions Square Apartments, Appellant v. Kimberly Lindke, Appellee From the 335th District Court Burleson County, Texas Trial Court No. 24,255 MEMORANDUM Opinion Lindke brought suit against Texas Faith Partners for bad-faith retention of an apartment security deposit, for fraud, and for violations of the Deceptive Trade Practices–Consumer Protection Act and Texas Theft Liability Act. See Tex. Bus. & Comm. Code Ann. §§ 17.41-17.63 (Vernon 2002 & Supp. 2006); Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001-134.005 (Vernon 2005). The trial court rendered a default judgment for Lindke. Texas Faith Partners brings this restricted appeal. See Tex. R. App. P. 30. We reverse. In Texas Faith Partners’ first issue, it contends that it filed an answer, and thus that the trial court erred in rendering a no-answer default judgment when an answer was on file. Lindke argues that Texas Faith Partners did not file an answer. “[A]t any time after a defendant is required to answer, the plaintiff may . . . take judgment by default against such defendant if he has not previously filed an answer, and provided that the citation with the officer’s return thereon shall have been on file with the clerk for the length of time required . . . .” Tex. R. Civ. P. 239; see id. 107. “A default judgment may not be rendered after the defendant has filed an answer.” Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam) (citing Kinnard v. Herlock, 20 Tex. 48 (1857)); accord In re K.B.A., 145 S.W.3d 685, 692 (Tex. App.—Fort Worth 2004, no pet.); see Toliver v. Dallas Fort Worth Hosp. Council, 198 S.W.3d 444, 449 (Tex. App.—Dallas 2006, no pet.). Lindke’s causes of actions were predicated upon Texas Faith Partners’ not returning Lindke’s $300 security deposit after Lindke vacated an apartment which she leased from Texas Faith Partners. Lindke served her petition on Texas Faith Partners’ on-site apartment manager, Linda Warden. Warden filed with the trial court clerk a letter accompanied by her report of the disposition of Lindke’s deposit. The letter stated: CAUSE NO. 24,255 KIMBERLY LINDKE Vs. TEXAS FAITH PARTNERS D/b/a TRADITION SQUARE APARTMENTS TO THE HONORABLE COURT: I LINDA WARDEN COME, ON BEHALF OF TEXAS FAITH PARTNERS D/B/A TRADITION SQUARE APARTMENTS. PLEASE FIND ATTACHED OUR PAPERWORK TO EXPLAIN THE REASON FOR NOT RETURNING MS. LINDKES DEPOSIT OF $ 300.00. I ALSO HAVE FURTHER PROOF IN PICTURES. RESPECTFULLY SUBMITTED, /S/ Linda Warden MANAGER Tradition Square Apts 710 N. Hall Caldwell, Tx. 77836 (I C.R. at 20.)[1] The accompanying report states, in relevant part: Deductions: . . . 3. Damages to apartment including cleaning, repairs, and $210.00 missing property. (SEE ATTACHED SHEET) 4. Carpet: ¨ Shampoo/Dye þ Replace cost 20% per yr $91.20 . . . Total Charges: $301.20 . . . ( $ )=RESIDENT REFUND $1.19 $ = BALANCE DUE . . . Additional Remarks: THE APT. WAS IN TERRIBLE CONDITION. CARPET HAS TO BE REPLACED,PAINT,ALL BLINDS REPLACE, STOVE, REF. BATHROOM KIT. IN GENERAL A MESS (I C.R. at 21.) The Texas Supreme Court has held that “a defendant, who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant’s current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case.” Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (per curiam); accord Hughes v. Habitat Apts., 860 S.W.2d 872 (Tex. 1993) (per curiam). Texas Faith Partners argues that Warden’s letter satisfies those requirements. Citing two cases decided by the Austin Court, Lindke argues, however, “The mere fact that an instrument is filed identifying the parties, the case and the defendant’s address does not compel a finding that the instrument is an answer.”[2] (Br. at 2 (citing Guadalupe Econ. Servs. Corp. v. DeHoyos, 183 S.W.3d 712, 716 (Tex. App.—Austin 2005, no pet.); Narvaez v. Maldonado, 127 S.W.3d 313, 318 (Tex. App.—Austin 2004, no pet.)).) Assuming that those cases are not contrary to Smith v. Lippmann, those Austin cases hold that in the absence of any “letter” answering the plaintiff’s petition, and in the absence of the defendant’s address, an instrument filed does not constitute an answer. Guadalupe Econ. Servs., 183 S.W.3d at 715; Narvaez, 127 S.W.3d at 318. Those cases are distinguishable, since Warden’s letter here contains Texas Faith Partners’ mailing address and factually answers the allegations in Lindke’s petition. Warden’s letter and report identify the parties, the trial court cause number, and Texas Faith Partners’ address, and respond factually to the allegations in Lindke’s petition. Warden’s letter and report thus constitute an answer for Texas Faith Partners. The face of the record thus reflects that the trial court erred in rendering a no-answer default judgment. We sustain Texas Faith Partners’ first issue. We need not reach Texas Faith Partners’ other issues. Having sustained Texas Faith Partners’ first issue, we reverse and remand. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance concurs in the judgment) Reversed and remanded Opinion delivered and filed January 17, 2007 [CV06] [1] The body of the letter is printed; the address is hand-written. The face of the letter also states, in handwriting: 06.29.05 A copy of this answer faxed to: Plaintiff’s Attorney: Christopher Rosas Attn: Roxanna 713-552-0231 (I C.R. at 20.) Since the trial court clerk filed the letter on June 8, 2005, we take it that this handwritten addendum was later added by the clerk. [2] Lindke also cites Investors Diversified Services v. Bruner for the proposition, “Absent language in an instrument seeking judgment or an adjudication on some question, an act of a defendant cannot constitute an answer, even for the purposes of preventing default judgment.” (Br. at 2-3 (citing Investors Diversified Servs., Inc. v. Bruner, 366 S.W.2d 810, 815 (Tex. App.—Houston [1st Dist.] 1963, writ ref’d n.r.e.).) We understand that case not to be in accordance with the current Texas Rules of Civil Procedure, or to have been overruled by Smith v. Lippmann. See Tex. R. Civ. P. 85; Smith v. Lippmann, 826 S.W.2d 137.