Dorinda Allison v. Post-Newsweek Stations Houston LP KPRC TV--Appeal from Co Civil Ct at Law No 3 of Harris County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 01-10-00775-CV

Case Date: 12/22/2011

Plaintiff: Dorinda Allison

Defendant: Post-Newsweek Stations Houston LP KPRC TV--Appeal from Co Civil Ct at Law No 3 of Harris County (Ma

Preview:Opinion issued December 22, 2011.

In The

Court of Appeals
For The

First District of Texas
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NOS. 01-10-00775-CV 01-11-00767-CV ---------------------- DORINDA ALLISON, Appellant V. POST-NEWSWEEK STATIONS HOUSTON LP D/B/A KPRC TV, Appellee **** CAMELL ALLISON, Appellant V. POST-NEWSWEEK STATIONS HOUSTON LP D/B/A KPRC TV, Appellee

On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Case No. 920,781

MEMORANDUM OPINION Appellants Dorinda Allison ("Dorinda") and Camell Allison ("Camell") bring separate challenges to the trial court's grant of summary judgment in favor of appellee, Post-Newsweek Stations Houston, a limited partnership d/b/a KPRC TV ("KPRC"). In her appeal, Dorinda argues that (1) she did not receive proper notice of KPRC's motion for summary judgment, (2) KPRC's motion for summary judgment was improperly based solely on merits-preclusive deemed admissions, and (3) the trial court improperly denied her motion for new trial. In his restricted appeal, Camell argues that reversal is warranted because the return of service shows that he was served with an incorrect pleading. We affirm. BACKGROUND In June 2008, KPRC filed an original petition against Dorinda and Camell, both individually and doing business as Party King. In this underlying suit on a sworn account, KPRC alleged that it had entered into an agreement to provide Dorinda and Camell with advertising services; that it had provided those services; that appellants had failed to make payments on the account; and that, as a result of this failure, KPRC had sustained damages totaling $30,000.00 plus interest and attorneys' fees. In late July 2008, a process server filed copies of the original petition citation and officer's return and affidavit of service with the Harris County
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Clerk, claiming that Camell had been served with "a true copy of the Citation & Plaintiff's Original Petition with Requests for Disclosure and Requests for Admissions." The following month, the trial court granted KPRC's request for default judgment against Camell and Dorinda and then voided it shortly thereafter. In September 2008, KPRC sent its requests for disclosure, admissions and production and its first set of interrogatories to Dorinda. Dorinda never responded or moved to set aside her deemed admissions. KPRC also requested an interlocutory default judgment against Camell. The trial court granted this motion in October 2008, citing Camell's failure to appear or answer in his behalf. Dorinda, however, was expressly excluded from this

interlocutory default judgment. In November 2008, a letter was filed with the court asking it to set aside the October default judgment against Camell. Although it stated that "we are asking [the court] to `set aside' this judgment," only Dorinda's name and signature appear on the letter. A notice of hearing on the motion to set aside the default judgment was also filed with the court. The blank entitled "party requesting hearing" on the pre-printed notice of hearing form was completed (in handwriting) with "Dorinda/Camell Allison" but contained no signature. granted Camell a new trial.
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The trial subsequently

In February 2009, a request for continuance (in the form of a letter) and a notice of hearing were filed with the court. The signatures of Dorinda and Camell appeared on the letter, and both names were listed (in handwriting) as the parties requesting the hearing on the preprinted notice of hearing form. The trial court granted the motion for continuance and then reset the trial date to May 2009. That same month (February 2009), KPRC mailed its first set of discovery requests (including a request for disclosure, request for admissions, request for production, and interrogatories) to Camell. In April 2010, two years after serving requests for admissions on Dorinda and one year after serving discovery requests on Camell, KPRC filed a motion for summary judgment against Dorinda and Camell. Neither filed a response; Dorinda claimed that this was because she was never served with notice of the summary judgment motion or hearing. The trial court then entered judgment for KPRC and against both appellants. Dorinda filed a motion for new trial, motion to withdraw deemed admissions, and a motion for severance. The motion for new trial was overruled by operation of law, and Dorinda timely filed a notice of appeal. Within six months of the date of the judgment, Camell filed a restricted appeal.

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DORINDA'S APPEAL Notice of Summary Judgment Hearing In her first issue, Dorinda argues that the trial court erred by granting KPRC's motion for summary judgment and denying her motion for new trial because she did not receive sufficient notice of the motion before the hearing. The trial court's decision on a new trial motion is subject to review for abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778

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