Bethany James v. Westgate Apartments

Dismissed and Memorandum Opinion filed December 3, 2009. In The Fourteenth Court of Appeals ___________________ NO. 14-08-00959-CV ___________________ BETHANY JAMES, Appellant V. WESTGATE APARTMENTS, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 922116 MEMORANDUM OPINION In this restricted appeal, appellant Bethany James challenges a default judgment in a suit filed in the justice court by Westgate Apartments to recover unpaid rent. In two issues, appellant contends the trial court erred in (1) granting a default judgment without providing her sufficient notice of trial, and (2) awarding excessive damages. We dismiss the appeal. Factual and Procedural Background On May 11, 2008, appellee filed a forcible entry and detainer suit against appellant in justice court. Appellee prevailed in the justice court and appellant appealed to the county court at law. See Tex. Civ. Prac. & Rem. Code Ann. 51.001 (Vernon 2008). On July 31, 2008, notice of the trial setting was mailed via certified mail, return receipt requested, to appellant’s attorney. On September 2, 2008, the case was called to trial by the county civil court at law, but appellant did not appear. Prior to hearing testimony, the court stated, “The courtroom having been sounded three times, the defendant Bethany James is not here, despite having been given notice to be here for trial at 9:00 a.m.” Patricia Orozco testified on appellee’s behalf that appellant owed five months’ rent of $509.00 per month. The trial court signed a judgment ordering appellant to pay appellee $2545.00 in past due rent. Appellant filed this restricted appeal claiming she did not receive notice of the trial setting and the damages award was excessive. Standard of Review A party who did not participate in the hearing, either in person or through counsel, and who did not timely file an appeal may file a restricted appeal. See Tex. R. App. P. 30. To obtain reversal of an underlying judgment by restricted appeal, an appellant must demonstrate that (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she neither participated in the hearing that resulted in the judgment complained of, nor timely filed any post-judgment motions or requests for findings of fact and conclusions of law; and (4) any error is apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all papers filed in the appeal. Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). In this case, the record shows that appellant met the first three requirements. Therefore, she must demonstrate that the errors she asserts are apparent on the face of the record. Notice of Trial Setting We first consider whether the record on its face shows that she did not receive notice of the trial setting. Error that is merely inferred will not suffice. See Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (a restricted appeal requires error that is apparent, not error that may be inferred). We thus consider whether appellant has shown error that is apparent on the face of the record. We presume a trial court will hear a case only after the parties have received proper notice. Boateng v. Trailblazer Health Enterprises, L.L.C., 171 S.W.3d 481, 492, n. 4 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Under Rule 21a of the Texas Rules of Civil Procedure, notice may be served by delivering a copy to the party or the party’s attorney of record either in person, by agent, or by certified or registered mail. Tex. R. Civ. P. 21a. Due process requires that the method of service be reasonably calculated, under the circumstances, to apprise interested parties of the proceeding and to provide them an opportunity to present objections. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84–85 (1988). Although appellant claims that she did not receive notice of the trial setting, the record reflects that notice was sent to her attorney of record by certified mail return receipt requested to his address at 2700 Post Oak Blvd., Suite 1350, Houston, Texas 77056, the address appellant’s attorney listed with the trial court and with this court. Appellant claims the record only reflects that the trial court attempted to call appellant three times on the morning of trial. However, the record also reflects that appellant failed to appear despite being given notice of the 9:00 a.m. trial setting. We conclude that appellant failed to demonstrate that lack of notice is apparent from the face of the record. Appellant’s first issue is overruled. Damages Appellant further argues that the trial court’s award of $2,545.00 in damages is excessive. Appellant argues the record reflects that she failed to pay rent of $509.00 per month for the months of May, June, and July, so the damage award of five months’ rent is excessive. At trial, Orozco testified that appellant was required to pay $509.00 per month in rent. Appellee’s counsel asked, “is it true that the defendant has not paid her rent for May, June, July—” The court then interrupted appellee’s counsel to note that appellant was not present for trial despite having received notice. After the trial court’s statement, Orozco testified that the amount owed was $2,545.00, and produced a ledger activity report showing $2,545.00 owed for five months’ past due rent. The face of the record reflects that appellant owed five months’ rent of $509.00 per month for a total of $2,545.00. We cannot infer from the record that counsel’s interrupted question is evidence that rent was only owed for the months of May, June, and July. Therefore, appellant has failed to show error apparent on the face of the record with regard to damages. Appellant’s second issue is overruled. We conclude that appellant has failed to meet the requirements of a restricted appeal and we dismiss the appeal for want of jurisdiction. PER CURIAM Panel consists of Justices Yates, Frost, and Brown.