John Ocie Roberts v. Eleanor Carte and Ac Carte

NUMBER 13-01-766-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JOHN OCIE ROBERTS, Appellants, v. ELEANOR CARTE AND A. C. CARTE, Appellees. On appeal from the 197th District Court of Cameron County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Castillo, and Chavez Memorandum Opinion by Justice Castillo Appellant John Ocie Roberts appeals pro se from a post-answer default judgment. By eight issues, Roberts asserts that the trial court erred in granting the default judgment and in denying his motion for new trial. We affirm. I. RELEVANT FACTS A. Background Roberts entered into a contract for deed with appellees Eleanor and A.C. Carte to purchase forty acres of land. He fell delinquent in his payments. On September 18, 2000, Roberts sued, seeking a declaratory judgment as to the parties' respective rights under the contract for deed. He also alleged breach of contract and statutory and common-law fraud. He sought attorney fees. The Cartes counterclaimed for breach of contract and judicial foreclosure. Roberts answered the counterclaim. B. Court Proceedings 1. The February 15, 2001 Order The trial court signed an order dated February 15, 2001, setting the case on the dismissal docket for want of prosecution. The order stated: NOTICE OF HEARING ON ORDER FOR DISMISSAL It is hereby ordered that notice of the Court's intention to dismiss the above entitled and numbered cause be given to each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers on file. Such notice shall be by mailing a copy of this order in the United States Postal Service. On the 28TH day of MARCH, 2001, at 9:00 A.M. this cause will be dismissed for want of prosecution unless at such time and in open Court good cause be shown for the case to be maintained on the docket. If the Court determines to maintain the case on the docket, this case shall be set for trial. The case may be continued thereafter only for valid and compelling reasons specifically determined by court order. Signed for entry on this the 15th day of February, 2001. 2. The March 22, 2001 Order The trial court issued a second order setting a hearing. The second order stated: ORDER SETTING HEARING TO REINSTATE CASE AND FOR TRIAL SETTING FOR CASE On this the 22nd day of March, 2001, came on to be considered Plaintiff's John Ocie Roberts, Motion to Reinstate case and to set trial date. After considering the same, the Court grants the Motion. It is hereby ordered, adjudged and decreed that this case is reinstated on the docket and the hearing for trial setting is for the 28th day of March, 2001 at 9:00 a.m. Signed for entry on this the 22nd day of March, 2001. The second order shows "COPIES TO" the Cartes' attorney and to Roberts. 3. The March 28, 2001 Hearing Roberts did not appear at the March 28, 2001 hearing to set his case for trial. The Cartes' attorney appeared at a hearing that afternoon and asked for a trial setting on the Cartes' counterclaim: THE COURT: It's a trial setting? [COUNSEL]: Yes, ma'am. THE COURT: Okay. [COUNSEL]: But the reason, Judge, I'm before you is because there is a pro se plaintiff on the other side. THE COURT: Who is the pro se plaintiff? [COUNSEL]: They were not here this morning, Judge. The reason why I came back at 1:30 was my clients, we've been sued in this case. The reinstatement was for today for the trial, and also I filed a counterclaim against the pro se plaintiff. I'm here to reinstate the counterclaim. Janet was good to give me dates for August 10th and 13th. But what I'm asking the court to do, Judge, is being that he's not here for his reinstatement, I'm asking the court to dismiss his case and I'm asking the court to sever my counterclaim so I can go forward on August 10th and August 13th for trial. I'm also asking, Judge – He demanded a jury trial. My understanding of the rules is that if he's not here to object, I can ask that it be taken off the jury docket and heard before the court. Your Honor knows this already. I'm asking that it be taken off the jury docket, Judge, and placed on the bench docket for that date with no objection. THE COURT: It will be granted. 4. The Severance Order of April 4, 2001 As a result, the trial court signed an order: (1) dismissing Roberts's case-in-chief; (2) granting the Cartes' motion to reinstate their counterclaim; (3) severing the Cartes' counterclaim; and (4) setting the Cartes' counterclaim for trial. Roberts appealed the severance order to this Court. The trial court set the case for announcements on August 10, 2001 at 9:00 a.m. and a bench trial on August 13, 2001 at 9:00 a.m. The order shows "cc: John Ocie Roberts, pro se Party, 1726 N. Commerce, Harlingen, Texas 78550." A similar notation shows the name and address of the Cartes' attorney. 5. The Judgment of August 17, 2001 Roberts did not appear for trial on August 13, 2001. The trial court signed a final judgment on August 17, 2001 in favor of Eleanor Carte and Celeste Bowman, independent executrix of the estate of A.C. Carte. II. JURISDICTION In various sub-issues, Roberts asserts that the trial court did not have jurisdiction to enter a judgment and had no jurisdiction over him. However, the rule in Texas is that a party who has appeared in litigation remains before the court for all purposes. See Von Briesen, Purtell & Roper, S.C. v. French, 78 S.W.3d 570, 575 (Tex. App.–Amarillo 2002, pet. dism'd w.o.j.). Roberts invoked the trial court's jurisdiction when he filed the lawsuit against the Cartes. Further, Roberts appeared again when he answered the counterclaim, which was the live pleading pending before the trial court when it signed the judgment. We conclude that the trial court had jurisdiction over the Cartes' counterclaim and over Roberts. See id. Also in sub-issues, Roberts argues that the trial court did not have jurisdiction to try the Cartes' counterclaim because the severed part of the case was on appeal. The record shows that the trial court set the severed counterclaim for trial after Roberts failed to appear at the hearing to set the whole case for trial. The trial court dismissed Roberts's claim for want of prosecution, severed it from the Cartes' counterclaim, and set the counterclaim for trial. Meanwhile, Roberts appealed the severance order in his appeal of the dismissal of his claim against the Cartes. Contrary to Roberts's argument, his earlier appeal was from the severed case. An order of severance is interlocutory in the remaining (or ongoing) case and is not appealable. Barrows v. Ezer, 624 S.W.2d 613, 616 (Tex. Civ. App.–Houston [14th Dist.] 1981, no writ). Accordingly, our exercise of jurisdiction over Roberts's earlier appeal in the severed case had no effect on the trial court's continuing jurisdiction over the Cartes' counterclaim in the cause from which the appealed case was severed. See id. We overrule Roberts's sub-issues arguing that the trial court lacked jurisdiction over the Cartes' counterclaim while he challenged the severance order in his appeal of his severed claim against the Cartes. III. ISSUES PRESENTED Roberts presents eight issues for our review. He asserts that: (1) the default judgment was entered without notice to him of a trial setting; (2) the trial court abused its discretion in severing the case; (3) the judgment awards double recovery to the Cartes; (4) the Cartes' counterclaim was improperly reinstated; (5) the Cartes' attorney misled the trial court by not advising the trial court of the pending appeal of a compulsory counterclaim; (6) the trial court erred in enforcing an invalid contract; (7) the trial court erroneously interpreted the written contract; and (8) the judgment granted more relief than requested. IV. DEFAULT JUDGMENT In his first issue, Roberts asserts that the trial court erred in granting a default judgment without fair notice to him of the trial. He states that the record is devoid of any proper evidence of notice to him. A. Standard of Review A trial court must set aside a post-answer default judgment on satisfaction of a three-prong test. Craddock v. Sunshine Bus Lines Inc., 133 S.W.2d 124, 126 (Tex. 1939); Mathis v. Lockwood, 132 S.W.3d 629, 631 (Tex. App.–Dallas 2004, pet. filed). The party seeking to set aside a default judgment should demonstrate that: (1) the party's failure to appear was not intentional or the result of conscious indifference; (2) there is a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury to the opposing party. Mathis, 132 S.W.3d at 631. A party who receives no notice of a trial setting satisfies the first prong of Craddock and does not have to meet the remaining prongs of the test to be entitled to a new trial. Id. Where the elements of the Craddock test are satisfied, it is an abuse of discretion for the trial court to deny a motion for new trial. Id. In reviewing the judgment of the trial court where there are no findings of fact and conclusions of law requested or filed, the judgment must be upheld on any legal theory that finds support in the evidence. Id. B. Notice Failure to give notice to a party of a trial setting is grounds for reversal of a default judgment. Hanners v. State Bar of Texas, 860 S.W.2d 903, 907 (Tex. App.–Dallas 1993, no writ). A person who is not notified of a trial setting and consequently suffers a default judgment need not establish a meritorious defense to be entitled to a new trial. Id. The law presumes that a trial court hears a case only after proper notice to the parties. Id. at 908. To overcome this presumption, the appellant must affirmatively show lack of notice. Id. Here, however, Roberts concedes he received notice of the March 22 order requiring that he appear to set the case for trial. The March 22 order set the March 28 hearing at 9:00 a.m. for that purpose. However, Roberts did not appear at the March 28 docket call to set a trial date. The trial court's February 15 order stated, "The case may be continued thereafter only for valid and compelling reasons specifically determined by court order." When Roberts failed to appear at the docket call to set the case for trial, the trial court was free to reinstate the dismissal of his case for want of prosecution. See Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 694-95 (Tex. App.–Amarillo 1998, pet. denied) (holding that trial court has broad discretionary power and inherent authority to control its own docket). Significantly, Roberts did not claim in his motion for new trial he did not receive the April 4 order setting the Cartes' counterclaim for trial on April 13. We hold that Roberts did not overcome the presumption that the trial court heard the case only after proper notice to the parties. See Hanners, 860 S.W.2d at 908. We overrule Roberts's first issue. V. MOTION FOR NEW TRIAL A. Requirements The requirements of motions for new trial are governed by the Texas Rules of Civil Procedure. Rule 321 requires a party to designate each point it relies on in a motion for new trial in such a way that the trial court can identify and understand the complaint. See Tex. R. Civ. P. 321. The purpose of a motion for new trial is to provide an opportunity for the trial court, by granting a new trial, to cure any errors. D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.–Dallas 1993, no writ). In addition, rule 322 provides that the court shall not consider points in a motion for new trial couched only in general terms. See Tex. R. Civ. P. 322. Therefore, the allegations in a motion for new trial must be sufficiently specific to enable the trial court to understand what the movant alleges was error. B. Standard of Review In considering whether a new trial should be granted where an answer has been filed but the defendant fails to appear, the same rules apply as in cases where no answer has been filed. Cocke v. Saks, 776 S.W.2d 788, 789 (Tex. App.–Corpus Christi 1989, writ denied). It is within the discretion of the trial court to decide whether the facts of a case warrant vacating a default judgment and granting a new trial. Id. at 789. The proponent of the motion for new trial has the burden of presenting it to the trial court, obtaining a hearing on it, and presenting evidence to substantiate any factual matters necessary to show entitlement to the requested relief. Id. We again uphold the decision on any legal theory that finds support in the evidence. See Mathis, 132 S.W.3d at 631. C. Roberts's Grounds for New Trial On September 13, 2001, Roberts filed a sworn motion for new trial asserting that: (1) he had appealed the April 4, 2001 severance order; (2) a jury trial was necessary to determine the parties' intent in the contract; (3) dismissal of his suit was improper; (4) he was not informed of any hearing to dismiss the case; (5) the March 28, 2001 hearing was to set a trial; (6) he objected that a visiting judge presided over the case; (7) the judgment was void because the trial court had no authority to render it; (8) the judgment on appeal was not final, arguing that the trial court could not have rendered the judgment of August 17, 2001; (9) he was denied procedural and substantive due process; and (10) the trial court lacked subject-matter jurisdiction. The trial court signed an order denying the motion for new trial on September 19, 2001. D. Analysis Throughout his brief, Roberts argues that the trial court erred in denying his motion for new trial. Roberts had the burden of presenting his motion to the trial court, obtaining a hearing on it, and presenting evidence to substantiate any factual matters necessary to show he was entitled to a motion for new trial. See Saks, 776 S.W.2d at 790. In the absence of findings of fact and conclusions of law, we conclude we can uphold the trial court's denial of Roberts's motion for new trial on the legal theory that Roberts did not meet his burden to overcome the presumption that the trial court heard the case only after proper notice to the parties. See Mathis, 132 S.W.3d at 631; see also Hanners, 860 S.W.2d at 908. On this record, we cannot conclude that the trial court abused its discretion in denying Roberts's motion for new trial. See Hanners, 860 S.W.2d at 908. VI. WAIVER Other than fundamental error, to preserve an issue for appellate review, the record must show that the appellant presented the complaint first to the trial court. Tex. R. App. P. 33.1(a)(1). Within his second issue, Roberts asserts that the trial court abused its discretion in severing his claim and the Cartes' counterclaim, arguing that the Cartes' counterclaim was compulsory. In his third issue, Roberts argues that the judgment allows the Cartes a double recovery. In his fourth issue, Roberts argues that the reinstatement order reinstated only his case and not the Cartes' counterclaim, arguing that the counterclaim was erroneously reinstated and tried. In his fifth issue, Roberts argues that the Cartes' attorney misled the trial court by not advising it of the pending appeal of a compulsory counterclaim. In his sixth issue, Roberts argues that the trial court erred in enforcing an invalid contract. In his seventh issue, Roberts argues that the trial court incorrectly interpreted the parties' contract. In his eighth issue, Roberts asserts that the trial court granted more relief than the Cartes requested in their live pleading. Roberts did not present to the trial court any of the complaints to which he addresses his issues four through eight. Thus, he has waived error. See id. VII. CROSS-POINT In a single cross-point, the Cartes assert that Roberts's appeal is frivolous. They request attorney fees. We deny the request at this time. VIII. CONCLUSION We overrule each of Roberts's issues and sub-issues. We affirm the judgment of the trial court. ERRLINDA CASTILLO Chavez, J., not participating. Justice Opinion delivered and filed this 30th day of August, 2004.