Summary
reviewing on appeal whether trial court failed to rule on motion for default judgment before dismissing suit for want of prosecution
Summary of this case from In re Admatt Painting & Constr., Inc.Opinion
No. 05-07-01449-CV
Opinion Filed August 31, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-07-04490-A.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Unifund CCR Partners sued appellee Stacy D. Smith to collect on alleged credit card debt. Smith did not answer or otherwise appear and Unifund filed two separate motions for default judgment. Six days after the second motion was filed, the trial court dismissed the suit for want of prosecution. On appeal, Unifund raises a single issue and complains only of the trial court's failure to grant Unifund's second motion for default judgment. We conclude that Unifund failed to preserve error with respect to its second motion for default judgment. We affirm.
Background
Unifund sued Smith to collect on alleged credit card debt totaling $14,012.03 plus contractual interest at the rate of 30.99%. In its petition, file-marked March 21, 2007, Unifund alleged that Smith incurred the charges on a credit card issued by Citibank, and that Unifund purchased the account from Citibank. Attached to the petition is an "affidavit of indebtedness" and a statement of account dated January 26, 2007, reflecting an account balance of $14,012.03. After the trial court granted Unifund's motion for substituted service, Smith was served by substituted service on July 23, 2007. The trial court sent a letter on July 30, 2007 advising that the case had been placed on the dismissal docket and would be dismissed on August 31, 2007 unless Unifund took one of several actions, one of which was to prove up a default judgment if no sufficient answer was filed.
According to the petition, this amount includes $8,124.15 in principal, plus $5,887.88 in interest through January 26, 2007. The additional contractual interest sought was for interest from January 27, 2007 until paid.
Smith did not answer and Unifund filed a motion for default judgment on August 27, 2007. On September 4, 2007, the trial court sent Unifund a letter advising that it was returning the proposed default judgment unsigned because of several perceived substantive deficiencies:
Petition does not give fair notice of claim against Defendant;
Judgment relies on causes of action that are not adequately pleaded;
Damages cannot be accurately calculated, no written instrument attached to petition;
No evidence of sale and delivery of merchandise or performance of services;
No evidence that the amount of the account or price charged is in accordance with an express contract or is usual, customary and reasonable; [and]
No evidence of a systematic record kept and supported by an affidavit.
Unifund filed a second motion for default judgment, and a request for hearing on the motion, on September 28, 2007. The record does not contain a fiat or other order setting the second motion for default judgment for hearing. On October 4, 2007, the trial court signed an order dismissing the case for two reasons: (1) "[f]ailure to take action after notice of intent to dismiss for want of prosecution (IN ACCORDANCE WITH RULE 165A LETTER)" and (2) "for Want of Prosecution." Unifund filed a timely notice of appeal. Smith has not filed a brief in this appeal.
Analysis
In its sole issue on appeal, Unifund argues that the trial court erred by failing to grant its second motion for default judgment. We conclude that Unifund did not preserve error in the trial court.
It does not challenge the dismissal for want of prosecution.
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 Unifund's second motion for default judgment, nor does it contain an objection by Unifund to the trial court's refusal to rule, if any.
In a supplemental appellant's brief, Unifund argues that the trial court's dismissal order constituted an implicit ruling denying Unifund's second motion for default judgment because, at the time of the dismissal, the second motion for default judgment was "the only issue before the trial court." We disagree. An order dismissing a case for want of prosecution does not constitute an implicit ruling denying a pending motion for default judgment when, as in this case, the record does not demonstrate that the motion for default judgment was brought to the trial court's attention and the dismissal order does not address or acknowledge the motion for default judgment. See AIS Services, LLC v. Mendez, No. 05-07-01224-CV, 2009 WL 2622391, at *1-2 (Tex. App.-Dallas Aug. 27, 2009, no pet. h.) (mem. op.).
In its supplemental brief, Unifund cites the trial court's "Court Procedures," which state that motions for default judgment "do not require a hearing." Based on that statement, Unifund argues that it "should not be required to violate [the trial court's] normal procedures [by securing a hearing] simply to preserve error on appeal." We agree that a party is not required to secure a hearing on a motion for default judgment in order to preserve a complaint about the denial of that motion for appellate review. But the trial court's Court Procedures, and its dismissal setting notice, explain that a default judgment must be granted or proven up, not just filed, prior to the dismissal setting. And if a default judgment is not granted, the trial court's Court Procedures require a plaintiff to file a motion to retain, set it for hearing before the dismissal hearing, and appear at the dismissal hearing:
The trial court's Court Procedures with regard to its dismissal docket state in pertinent part:
Dismissal Docket
A. All newly filed cases are given a dismissal date 120 days after the filing date (on the next available Friday). Notice of the dismissal date will be promptly mailed to the party/counsel. The case WILL BE DISMISSED for want of prosecution if the following does not occur prior to the dismissal date:
1. Process of service is completed and an answer is filed, or;
2. Process of service is completed and default judgment is granted.
B. If neither has been completed, the responsible party will need to appear at the hearing. Pursuant to TRCP 165, a motion to retain with an affidavit of due diligence must be filed (include a fiat) and set for hearing with the clerk's office prior to the dismissal docket. Just filing a motion prior to the dismissal date will NOT remove your case from the dismissal docket. It is the party/counsel[']s responsibility to follow up with the Court Coordinator to ensure removal from the docket.
See http://www.judgedmetriabenson.com/Court%20Procedures.htm (last visited Aug. 31, 2009).
[T]he responsible party will need to appear at the hearing. Pursuant to TRCP 165, a motion to retain with an affidavit of due diligence must be filed (include a fiat) and set for hearing with the clerk's office prior to the dismissal docket. Just filing a motion prior to the dismissal date will NOT remove your case from the dismissal docket. It is the party/counsel[']s responsibility to follow up with the Court Coordinator to ensure removal from the [dismissal] docket.
We assume the trial court intended to cite Texas Rule of Civil Procedure 165a, rather than Texas Rule of Civil Procedure 165.
Even if the trial court's Court Procedures indicate that the trial court may rule on a motion for default judgment without a hearing, that does not mean that a movant is only required to file the motion in order to preserve error. To complain on appeal about the denial of the motion, the movant is also required to bring the motion to the trial court's attention. See generally Risner v. McDonald's Corp., 18 S.W.3d 903, 909 (Tex. App.-Beaumont 2000, pet. denied) ("A trial court is not required to consider a motion that is not called to its attention."). In this case, Unifund has not demonstrated that it brought its second motion for default judgment to the trial court's attention, either before or after the dismissal order was issued. The dismissal order recites two reasons for the dismissal, neither of which address or acknowledge the second motion for default judgment. There is no evidence in the record that the trial court was aware the second motion for default judgment was filed. And even assuming the trial court was aware that the second motion was filed, and refused to rule on it, Unifund did not preserve error by objecting to that refusal. See Tex. R. App. P. 33.1(a)(2). As a result, we conclude that Unifund did not preserve error. See Mendez, 2009 WL 2622391, at *2.
Conclusion
We overrule Unifund's sole issue and affirm the trial court's judgment.