Sammy Juarez v. The State of Texas--Appeal from 421st District Court of Caldwell County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-09-00239-CR

Case Date: 02/24/2010

Plaintiff: JOHN OCIE ROBERTS

Defendant: ELEANOR CARTE AND AC CARTE--Appeal from 197th District Court of Cameron County

Preview:JOHN OCIE ROBERTS v. ELEANOR CARTE AND
AC CARTE--Appeal from 197th District Court of
Cameron County
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
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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:
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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
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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.
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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
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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.
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