Opinion
01-21-00662-CV
08-25-2022
DARRYL DANIEL BROWN AND WENDY ESPADRON-BROWN, Appellants v. NAVY FEDERAL CREDIT UNION, Appellee
On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2021-05173
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
MEMORANDUM OPINION
Veronica Rivas-Molloy, Justice
Appellant Darryl Daniel Brown, proceeding pro se, appeals from the trial court's order granting summary judgment to Appellee Navy Federal Credit Union on its claims against him arising from his default under a contract. In three issues, Appellant contends the trial court erred in (1) granting Navy Federal Credit Union's motion for summary judgment because it failed to properly serve him with the motion, (2) denying his motion to dismiss the case, and (3) failing to grant a continuance of the summary judgment hearing.
We affirm.
Background
Darryl Daniel Brown ("Brown") and Wendy Espadron-Brown (collectively, the "Browns") purchased a 2015 GMC Acadia, VIN No. IGKKRPKD6FJ238420X ("Car"). As part of the purchase, they executed a Promissory Note, Security Agreement and Disclosure ("Contract"). Appellee Navy Federal Credit Union ("Navy Federal") is the owner and holder of the Contract. The Browns defaulted on the terms of the Contract by failing to make their scheduled payments, and Navy Federal accelerated maturity of all amounts due under the Contract. After crediting the Browns for all payments and offsets, a balance of $28,929.34 remained due under the Contract, which the Browns failed to pay.
The Contract provided that "[u]nder default, the balance due under this Note, plus any interest, charges, and fees shall become immediately payable without further notice to the Applicant at the option of Navy Federal."
Navy Federal sued the Browns asserting claims for breach of contract, establishment and foreclosure of security interest, and possession of the Car. Navy Federal attached a copy of the Contract to its petition. The Browns responded by seeking dismissal of Navy Federal's case with prejudice arguing that (1) the suit violated a discharge order in the Browns' bankruptcy case, (2) Navy Federal's attorney had filed a false affidavit in support of its motion for substitute service, (3) Navy Federal had violated several federal and state laws, (4) the trial court lacked jurisdiction over the case, and (5) Harris County was not a proper venue for the suit. Navy Federal filed a response denying the majority of the allegations and objecting to the motion on various grounds. The trial court denied the Browns' motion to dismiss.
The Browns' debt under the Contract was discharged in bankruptcy, see In re: Brown, Case No. 19-35224, Southern District of Texas, and Navy Federal Credit Union did not pursue payment of the discharged debt.
The Browns asserted that Navy Federal Credit Union did not honor the parties' reaffirmation agreement and that it violated the Telephone Consumer Protection Act, the Truth in Lending Act, and 11 U.S.C. § 524(a)(1)-(3).
Subsequently, on August 18, 2021, Navy Federal filed a Traditional Motion for Summary Judgment for its affirmative claims against the Browns. Navy Federal argued there was a valid and enforceable contract between Navy Federal and the Browns, the Browns had breached the Contract by failing to make their scheduled payments for the Car, and Navy Federal had the right to foreclose on its security interest in the Car under the Contract. In support of its motion, Navy Federal submitted the affidavit of Temetrius Burton ("Burton"), a replevin specialist, attaching copies of the Contract and the Car's Certificate of Title. Navy Federal also submitted its attorney's fees affidavit.
On September 13, 2021, Navy Federal mailed a Notice of Submission to the Browns stating that its motion for summary judgment was set for submission on October 11, 2021. The Notice included a Certificate of Service certifying that the notice had been mailed to the Browns at the address listed on their motion to dismiss. The Browns did not respond to Navy Federal's motion for summary judgment. Moreover, although the trial court previously had denied their motion to dismiss, the Browns did not file an answer.
Before ruling on Navy Federal's motion for summary judgment and given the lack of any responsive pleadings on file, the trial court entered a "Notice of Intent to Dismiss-No Answer Filed" on September 30, 2021, advising the parties that the case would be dismissed for want of prosecution unless a motion for default judgment or an answer was filed. The Browns filed their answer and affirmative defenses a few days later, on October 7, 2021.
On October 15, 2021, Navy Federal mailed a Notice of Hearing to the Browns stating Navy Federal's Motion for Summary Judgment was set for hearing on November 19, 2021. The Notice contained a Certificate of Service certifying that the notice had been mailed to the Browns at the address listed on their motion to dismiss and answer. Despite notice of the impending hearing, the Browns did not file a response to the motion for summary judgment.
On November 19, 2021, the trial court granted Navy Federal's motion for summary judgment. The court's order stated, in part:
CAME ON to be considered Plaintiff, Navy Federal Credit Union's Motion for Summary Judgment against Defendants Darryl Daniel Brown Sr. and Wendy Espadron-Brown. Defendants Darryl Daniel Brown Sr. and Wendy Espadron-Brown, although being served with notice of the hearing on Plaintiff s Motion for Summary, failed to file a timely response. The Court, having considered all timely filed pleadings and evidence in support of the Plaintiffs Motion for Summary Judgment, is of the opinion and finds that the Plaintiff is entitled to summary judgment in its favor against Defendants Darryl Daniel Brown Sr. and Wendy Espadron-Brown on Plaintiffs claims for breach of contract and establishment and foreclosure of security interest.
The trial court further ordered that Navy Federal "be granted establishment and foreclosure of the security interest held by [Navy Federal] in and to the 2015 GMC Acadia, VIN 1GKKRPKD6FJ2384202015" and awarded Navy Federal $1,175,00 in attorney's fees and $517.74 in court costs. This appeal followed.
Motion for Summary Judgment
In his first issue, Brown contends the trial court erred in granting summary judgment to Navy Federal because Navy Federal failed to serve its motion for summary judgment on him as required by Texas Rule of Civil Procedure 21. Brown asserts the trial court should have considered his prior filings in the case when ruling on Navy Federal's summary judgment motion. Navy Federal responds that Brown waived his right to appeal his alleged non-receipt of the motion. In the alternative, it argues Brown did not rebut the presumption of receipt.
A. Waiver
Texas Rule of Civil Procedure 166a(c) provides that, "except on leave of court, with notice to opposing counsel," a motion for summary judgment and any supporting affidavits must be "filed and served at least twenty-one days before the time specified for hearing." Tex.R.Civ.P. 166a(c). A party who does not receive proper notice under Rule 166a(c) waives a challenge to the lack of notice if he receives notice of the hearing, appears at the hearing, files no controverting affidavits, does not object to the lack of notice, and does not ask for a continuance. Yarborough v. Vitrola Bar, Inc., No. 14-17-00609-CV, 2019 WL 5157144, at *3 (Tex. App.-Houston [14th Dist.] Oct. 15, 2019, no pet.) (mem. op.) (citing Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.-Houston [14th Dist.] 1992, no writ)). "If a party receives notice that is untimely, but sufficient to enable the party to attend the summary judgment hearing, the party must file a motion for continuance or raise the complaint of late notice in writing, supported by affidavit evidence, and raise the issue before the trial court during the summary judgment hearing." Emmanuel v. Izoukumor, 611 S.W.3d 453, 456-57 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (quoting Buholtz v. Field, No. 03-17-00232-CV, 2018 WL 700058, at *2 (Tex. App.-Austin Jan. 31, 2018, pet. denied) (mem. op.)); see also Tex. R. Civ. P. 251 (continuance); Tex.R.App.P. 33.1(a) (preservation of error).
Brown acknowledges that he appeared at the November 21, 2021 summary judgment hearing. He thus received sufficient notice to enable him to attend the hearing. There is no record of the summary judgment hearing and thus nothing to establish that Brown complained about the lack of notice before the trial court during the hearing. Bell v. Citibank (South Dakota) N.A., No. 06-06-00037-CV, 2006 WL 3091361, at *1 (Tex. App.-Texarkana Nov. 2, 2006, no pet.) (concluding that where pro se defendant conceded on appeal that he appeared at hearing on bank's motion for summary judgment and appellate record contained no evidence that defendant filed motion for continuance or affidavit in support of his allegation of deficient notice of the motion, error, if any, was not preserved for review). The record, however, reflects that Brown did not file a motion for continuance or complain about late notice in writing with a supporting affidavit, as required. See Buholtz, 2018 WL 700058, at *2; Tex.R.Civ.P. 251. We thus conclude that Brown did not preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a); Tex.R.Civ.P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.").
B. Presumption of Service
Even had Brown preserved his issue for appeal, Brown would not prevail. Rule 21a of the Texas Rules of Civil Procedure provides that "[s]ervice by mail or commercial delivery service shall be complete upon deposit of the document, postpaid and properly addressed, in the mail or with a commercial delivery service." Tex.R.Civ.P. 21a(b)(1). "A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service." Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). "[N]otice properly sent pursuant to Rule 21a raises a presumption that notice was received." Id. An opposing party may rebut this presumption by offering proof that the notice or document was not received. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). Absent evidence to the contrary, the presumption has the force of law. Id.
Navy Federal attached a certificate of service to its motion for summary judgment signed by Earl F. Sundmaker, III, its attorney of record. In it, Navy Federal certifies that on August 18, 2021, its motion was served, via regular mail, on the Browns at the address listed on their motion to dismiss. This constitutes proper notice under Rule 21(a) and there is thus a presumption that the motion was properly mailed and received by Brown, a presumption Brown has not overcome. There is no offer of proof of non-receipt in the record. And, Brown did not file an affidavit, provide sworn testimony, or cite any evidence in the record to rebut the presumption of receipt. We thus presume that Brown received Navy Federal's motion for summary judgment. See Graham-Rutledge & Co., Inc. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex. App.-Dallas 2009, no pet.) (presuming proper service pursuant to certificate of service where party failed to offer proof as to non-receipt of notice); Giddings v. Curtis, No. 04-15-00102-CV, 2015 WL 6876990, at *3 (Tex. App.- San Antonio Nov. 10, 2015, no pet.) (mem. op.) (concluding that although plaintiff contended she did not receive notice of summary judgment hearing, Rule 21a created presumption that defendant's notice was properly mailed and received by plaintiff and plaintiff did not rebut presumption with offer of non-receipt); Bell, 2006 WL 3091361, at *2 (concluding pro se defendant failed to rebut presumption of service where certificate of service included in summary judgment motion stated motion was mailed to defendant, notices were mailed to defendant at his home address as shown in docketing statement, and record contained no evidence controverting certificate of service).
This is the same address listed on Brown's brief.
We overrule Brown's first issue.
Motion to Dismiss
In his second issue, Brown contends the trial court erred by denying his motion to dismiss Navy Federal's suit against him. Brown argues the trial court committed reversible error when it "issued a ruling denying Plaintiff's motion to dismiss predicated upon the finding that Defendants motion for Summary Judgment was not properly served upon Plaintiffs." Brown also argues the trial court erred in denying his motion because "the case has not been prosecuted with due diligence" given Navy Federal's failure to serve him with its summary judgment motion. Navy Federal Credit Union responds that Brown failed to preserve his arguments for appellate review and waived them due to inadequate briefing. Alternatively, Navy Federal argues the trial court did not abuse its discretion in denying Brown's motion to dismiss.
Brown argues the trial court erred in denying his motion to dismiss because Navy Federal did not prosecute the case with due diligence and did not serve him with its summary judgment motion. But Brown did not move to dismiss Navy Federal's claims on these grounds. Brown filed a motion to dismiss on May 20, 2021, months before Navy Federal filed its motion for summary judgment on August 18, 2021. None of the grounds asserted in Brown's motion to dismiss are those he now asserts on appeal. Thus, contrary to Brown's assertion on appeal, he did not seek dismissal of Navy Federal's suit on the ground that it failed to properly serve him with its motion for summary judgment.
To preserve a complaint for appellate review, the record must show that the complaining party made the complaint known to the trial court by timely request, objection, or motion stating with sufficient specificity the grounds for the requested ruling. See Tex. R. App. P. 33.1(a)(1)(A). Appellate courts cannot review grounds of error not asserted by an appellant in the trial court. See id. Brown is not exempt from these error-preservation requirements. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) ("[P]ro se litigants are not exempt from the rules of procedure."); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1998) ("There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves."). Because Brown did not raise the complaints he now presents on appeal related to his motion to dismiss, he did not preserve them for our review. See Tex. R. App. P. 33.1(a)(1)(A); Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 581 S.W.3d 306, 309 (Tex. App.-Dallas 2018), aff'd, 595 S.W.3d 651 (Tex. 2020) (concluding plaintiff waived issue complaining that trial court erred in granting defendants' motion to dismiss based on affirmative defense of attorney immunity where plaintiff did not present issue to trial court in her response to motion to dismiss).
Brown also waived the issue due to inadequate briefing. A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.-Dallas 2004, pet. denied). On appeal, as at trial, a pro se appellant must properly present his case. Id. at 678. Pursuant to the Texas Rules of Appellate Procedure, an appellant's brief must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h), (i). Texas Rule of Appellate Procedure 38.1 requires an appellant to provide the court with "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(i); see Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). This is not accomplished merely by uttering brief conclusory statements. Id. An issue on appeal unsupported by argument or citation to legal authority presents nothing for the court to review. Strange, 126 S.W.3d at 678.
Although Brown cites several authorities discussing generally the standard of review of a trial court's ruling on a motion to dismiss, the grounds upon which a trial court may dismiss a case, and the factors courts consider in determining whether due diligence has been shown, he provides no substantive analysis of those authorities nor does he explain how he believes the factors apply to the facts of his case or how they demonstrate the trial court abused its discretion. See Kozera v. Velemir, No. 01-17-00290-CV, 2018 WL 6542584, at *4 (Tex. App.-Houston [1st Dist.] Dec. 13, 2018, pet. denied) (mem. op.) (concluding defendant waived issue on appeal where he failed to provide substantive analysis as to how cited authority applied to facts of his case and did not provide any legal analysis to support his argument); Encinas v. Jackson, 553 S.W.3d 723, 728 (Tex. App.-El Paso 2018, no pet.) (appellant waived argument by "provid[ing] no citation to authority, nor appl[ying] applicable law to the facts of the case in support of her second issue"); Marin Real Estate Ptrs., L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.-San Antonio 2011, no pet.) ("A failure to provide substantive analysis of an issue waives the complaint."); In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.-Texarkana 2010, no pet.) (stating failure to cite legal authority or to provide substantive analysis of issues presented results in waiver of complaint); Valadez v. Avita, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no pet.) (noting courts have no duty, or even right, to perform independent review of record and applicable law to determine whether error exists).
Because Brown failed to comply with Texas Rules of Appellate Procedure 33.1(a) and 38.1, he waived this issue on appeal. Brown's second issue is overruled.
Motion for Continuance
In his third issue, Brown contends the trial court should have continued the summary judgment hearing upon learning that Navy Federal had failed to serve Brown with its summary judgment motion. According to Brown, the trial court had a duty to sua sponte grant a continuance of the summary judgment hearing to allow him an opportunity to review and respond to the summary judgment motion. Brown cites no authority establishing that such a duty exists.
To be entitled to a continuance, Brown had to comply with Texas Rule of Civil Procedure 251. Rule 251 provides that a motion for continuance shall not be granted without "sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex.R.Civ.P. 251. Motions for continuance generally must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. In re G.S., No. 14-14-00477-CV, 2014 WL 4699480, at *25 (Tex. App.-Houston [14th Dist.] Sept. 23, 2014, no pet.) (mem. op.) (citing Tex.R.Civ.P. 251, 252; In re E.L.T., 93 S.W.3d 372, 375 (Tex. App.-Houston [14th Dist.] 2002, no pet.)). Oral requests for a continuance are insufficient to preserve error. See Phifer v. Nacogdoches Cty. Cent. Appraisal Dist., 45 S.W.3d 159, 173 (Tex. App.-Tyler 2000, pet. denied).
Nothing in the record shows that Brown moved for a continuance of the summary judgment hearing. There is no written motion for continuance in the clerk's record or a record of an order ruling on a motion for continuance of the hearing, nor is there otherwise any indication that Brown made a motion for continuance, written or oral, to the trial court. See Tex. R. Civ. P. 251 (instructing that continuance shall not be granted except for "sufficient cause supported by affidavit, or consent of parties, or by operation of law"); In re C.F., 565 S.W.3d 832, 844 (Tex. App.-Houston [14th Dist.] 2018, pet. denied) (noting that motions for continuance must be in writing, state specific facts supporting motion, and be verified or supported by affidavit). These steps were required to preserve error for appellate review. See Tex. R. App. P. 33.1(a); see also In re W.A.B., No. 14-18-00181-CV, 2019 WL 2181205, at *2 (Tex. App.-Houston [14th Dist.] May 21, 2019, no pet.) (mem. op.) ("When the record does not show that a motion for continuance was filed and brought to the trial court's attention before final judgment is rendered, any error is not preserved.").
Because the record does not show that Brown moved for a continuance of the summary judgment hearing at any time, we conclude he failed to preserve his issue for appellate review. See Tex. R. App. P. 33.1(a); In re H.D.D.B., No. 01-20-00723-CV, 2022 WL 2251655, at *11 (Tex. App.-Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.) (concluding father failed to preserve issue regarding whether correctional officer was qualified to testify where record did not show father moved for continuance of hearing at any time, in writing or orally, or obtained ruling on motion for continuance); Murphree v. Cooper, No. 14-11-00416-CV, 2012 WL 2312706, at *2 (Tex. App.-Houston [14th Dist.] June 19, 2012, no pet.) (mem. op.) ("Because the record does not show that the motion for continuance was presented to the trial court with a request for a ruling or otherwise brought to the attention of the court before the final judgment was rendered, appellant has failed to preserve this issue for appellate review."). We overrule Brown's third issue.
On November 19, 2021, Brown signed and filed a notice of appeal on behalf of himself and his wife, Wendy Espadron-Brown. While we have jurisdiction to review his appeal because he filed a pro se notice of appeal on his own behalf, we lack jurisdiction to review any purported appeal he seeks to bring on behalf of Wendy. In Texas, a person can practice law only if licensed by the Supreme Court of Texas or if given special permission to do so under circumstances that are not present here. Unauthorized Practice of Law Comm. v. Am. Home Assur. Co., Inc., 261 S.W.3d 24, 29 (Tex. 2008); Tex. Gov't Code § 81.102(a); see also Hunter v. Liberty Mut. Ins., No. 01-19-00418, 2020 WL 425295, *1 (Tex. App.-Houston [1st Dist.] Jan. 28, 2020, pet. denied) (mem. op.) ("Under Texas law, if a person is not a member of the state bar or otherwise granted special permission, that person may not practice law on behalf of another person-even if the two persons are related or married."); Premier Assocs., Inc. v. Louetta Shopping Ctr. Houston, L.P., No. 01-12-00369-CV, 2012 WL 4243802 (Tex. App.-Houston [1st Dist.] Sept. 20, 2012, no pet.) (mem. op.) ("[A] person proceeding pro se cannot file a notice of appeal on behalf of another person."). Brown is not a licensed attorney and therefore cannot file a Notice of Appeal on behalf of another person, including his spouse. After being notified that her appeal was subject to dismissal for want of jurisdiction, Wendy did not adequately respond. Accordingly, we dismiss her appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a).
Conclusion
We affirm the trial court's judgment.