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refusing to recognize an implied ruling on a motion that was not brought to trial court's attention
Summary of this case from McAfee v. WeissOpinion
No. 05-07-01224-CV
Opinion Filed August 27, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-06-18640-A.
Before Justices FITZGERALD, LANG, and FILLMORE.
MEMORANDUM OPINION
Appellant AIS Services, LLC sued appellee Jose Mendez for breach of contract. After Mendez failed to appear, AIS filed a motion for default judgment. Sixteen months later, the trial court dismissed the suit for want of prosecution. On appeal, AIS raises a single issue and complains only of the trial court's failure to grant AIS's motion for default judgment. We affirm.
I. Background
Because we hold that AIS failed to preserve error with respect to its motion for default judgment, we recite the procedural facts of the case in some detail. AIS sued Mendez in December 2006. AIS alleged that Mendez owed Chase Manhattan Bank money on a credit-card account, that AIS had purchased the account from Chase, and that Mendez owed AIS slightly more than $3,000, plus attorneys' fees and interest. The record reflects that Mendez was served in April 2007. He never answered or otherwise appeared.
AIS filed a motion for default judgment in May 2007. The record also contains AIS's cover letter to the court clerk asking the clerk to present the motion and a proposed judgment (not included in our record) to the judge. The record contains no fiat or other order setting the motion for default judgment for hearing. The record also contains AIS's "trial brief" in support of its motion for default judgment. The trial brief is filemarked August 10, 2007.
AIS filed a notice of appeal on September 11, 2007. Therein, AIS stated that it desired to appeal "from the appealable order or judgment signed by this court on August 10, 2007." But, as far as our record reveals, the trial court did not sign any order in this case until September 12, 2008. On that date, the trial judge signed an order dismissing the case for want of prosecution. We treat AIS's premature notice of appeal as though it were filed after the dismissal. See Tex. R. App. P. 27.1(a). Mendez has not filed a brief in this appeal.
II. Error Preservation
In its sole issue on appeal, AIS argues that the trial court erred by failing to grant its motion for default judgment. We conclude that AIS did not preserve error in the trial court.
To preserve a complaint for appellate review, a party must make the complaint to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). Preservation also requires one of three things: (1) an express ruling by the trial court, (2) an implicit ruling by the trial court, or (3) a refusal to rule by the trial court, coupled with an objection to that refusal by the complaining party. Tex. R. App. P. 33.1(a)(2). This record contains no express ruling on AIS's motion for default judgment, nor does it contain an objection by AIS to the refusal to rule, if any, by the trial court. Thus, AIS did not preserve error unless the trial judge implicitly denied AIS's motion for default judgment by dismissing the case.
An implicit ruling is one that is unstated but can be inferred from something else. Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.-San Antonio 2000, no pet.). The rules of appellate procedure do not explain how to recognize an implicit ruling by a trial judge, and courts have struggled with the concept in some contexts. Compare Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.-Fort Worth 1999, pet. denied) (order granting summary judgment also implicitly sustained movant's objections to nonmovant's affidavits), with Well Solutions, Inc., 32 S.W.3d at 317 ("[A] trial court's ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not `capable of being understood' from the ruling on the motion for summary judgment."). When parties present cross-motions that are opposed and mutually exclusive, an order that grants one motion may implicitly deny the other. See Well Solutions, Inc., 32 S.W.3d at 317 (order granting motion to disregard jury findings also implicitly denies opposing motion for judgment based on those findings). For example, under former article 4590i, an order granting a motion to dismiss for failure to provide an adequate expert report also implicitly denied the plaintiff's conditional request for a grace period in which to cure defects. Walker v. Gutierrez, 111 S.W.3d 56, 60 n. 1 (Tex. 2003).
An essential element of an implicit ruling is awareness by the trial judge of the request or motion that is supposedly being ruled on. In Walker, for example, the plaintiffs included their request for a grace period in their response to the defendants' motion to dismiss. Id. at 59. Under such circumstances, an appellate court can infer that the trial judge was actually aware of the request when it addressed and decided the motion to dismiss. But ordinarily the filing of a motion, without more, does not give rise to an inference that the trial court is actually aware of it. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.-Amarillo 2003, orig. proceeding); see also State v. Kelley, 20 S.W.3d 147, 153 (Tex. App.-Texarkana 2000, no pet.) (refusing to find implicit ruling on motion to dismiss for denial of a speedy trial because record did not reflect that motion was specifically brought to trial court's attention); Risner v. McDonald's Corp., 18 S.W.3d 903, 909 (Tex. App.-Beaumont 2000, pet. denied) ("A court is not required to consider a motion that is not called to its attention.").
In the instant case, the record does not show that the trial court was aware of AIS's motion for default judgment when it dismissed the case. The record shows no activity in the case between August 2007, when AIS filed its "trial brief," and September 2008, when the trial court dismissed the case. The order of dismissal does not refer to the motion for default judgment, but instead simply recites that the case is dismissed for three reasons:
Failure to appear for a hearing or trial of which notice was had.
Failure to take action after notice of intent to dismiss for want of prosecution. (IN ACCORDANCE WITH RULE 165A LETTER)[
There is no "rule 165a letter" in our record.
Dismiss for Want of Prosecution.
We conclude that the record does not demonstrate that the trial court was actually aware of AIS's motion for default judgment when it dismissed the case, as would be necessary to support an implicit ruling. Our opinion in Crown Asset Management, L.L.C. v. Loring, No. 05-07-01418-CV, 2009 WL 2596101, at *1 (Tex. App.-Dallas Aug. 25, 2009, no pet. h.) (en banc), is distinguishable. In that case, the record contained the trial court's written notice to the plaintiff that its request for default judgment was defective, and we held that this notice was sufficient to preserve error under rule 33.1. The record in this case, by contrast, contains no written notice of deficiency that would indicate the trial court actually knew about and considered AIS's motion for default judgment at the time it dismissed the case.
The trial judge's standing "Court Procedures," which provide that motions for default judgment do not require a hearing "unless specified by the court," could furnish a basis for inferring an implicit ruling in some circumstances. The procedures suggest that the trial judge reviews all filed motions for default judgment sua sponte and then either rules on them or advises the parties that a hearing is necessary. Thus, the judge's dismissal of the case while a motion for default judgment is pending could imply awareness of and denial of the motion. But on the facts of this case, we conclude that no implied ruling can be inferred. Sixteen months passed between the filing of the motion for default judgment and the order of dismissal. Thirteen months of total inactivity preceded the dismissal. The dismissal order recites three reasons for the dismissal, none of which addresses or acknowledges the motion for default judgment. On this record, we cannot infer that the trial court implicitly denied AIS's motion for default judgment when it dismissed the case; it is at least as likely that the trial court simply overlooked the motion or otherwise failed to rule on it after the long period of inactivity.
See http://www.judgedmetriabenson.com/Court%20Procedures.htm.
We conclude that the trial court did not expressly or implicitly rule on AIS's motion for default judgment. Assuming the trial court refused to rule on the motion, AIS did not object to that refusal. Accordingly, AIS did not preserve error. See Tex. R. App. P. 33.1(a)(2). We overrule AIS's single issue on appeal.
III. Disposition
We affirm the judgment of the trial court.