Veronica L. Davis v. James A. West and Houston Reporting Services , 2014 Tex. App. LEXIS 3358 ( 2014 )

Opinion issued March 27, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00463-CV
———————————
VERONICA L. DAVIS, Appellant
V.
JAMES A. WEST AND HOUSTON REPORTING SERVICES, Appellees
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 40,104
OPINION
This is the fourth appeal arising out of two lawsuits regarding court reporter
fees. In the first lawsuit filed in justice court, Houston Reporting Services (HRS)
alleged that Veronica Davis, an attorney, breached her contractual obligation to
pay for deposition transcripts. HRS obtained a post-answer default judgment
against Davis, and then used a court-appointed receiver to remove funds from
Davis’s bank account. Davis filed a notice of appeal; however, the appeal was
dismissed.
In the second lawsuit, Davis sued HRS, its attorney, the court-appointed
receiver, and her own bank in district court. All defendants except HRS were
granted summary judgment, and their cases were severed. HRS ultimately won on
summary judgment. This appeal is limited to Davis’s claims against HRS.
In three issues, Davis contends that (1) the trial court lacked jurisdiction to
grant summary judgment to HRS due to an earlier recusal order, (2) even if the
court had jurisdiction, fact issues existed that prevented judgment as a matter of
law, and (3) the trial court erred by denying Davis’s two earlier motions for default
judgment against HRS.
We affirm.
Background
HRS contends that Davis ordered copies of deposition transcripts on behalf
of her client. Davis disputes this and states that, regardless, she withdrew as
attorney of record for that client. When Davis failed to pay for the transcripts, HRS
sued her in justice court and obtained a post-answer default judgment. Davis
asserts that the justice court made multiple errors in granting the default judgment
against her and, later, authorizing the removal of funds from her bank account. She
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challenges the notice given to her of the trial setting, the appointment of the
receiver, the issuance of a turnover order, and multiple other aspects of the
litigation. Although she initially appealed that judgment, her appeal was dismissed
because she did not pay the required fees.
In a second lawsuit, Davis sued HRS, its attorney, the court-appointed
receiver, and her bank in district court. Her cause of action against HRS was for
abuse of process related to the earlier default judgment and collection efforts. The
receiver and bank were granted summary judgments, which were severed,
appealed to this Court, and affirmed. 1 While her claims against HRS and West
were still pending, Davis filed a motion to recuse the district court judge, Robert E.
May. May recused himself and requested that the presiding judge for the Second
Administrative District “assign a judge to sit in this cause.” The presiding judge
“assign[ed] the Honorable Neil Caldwell . . . to the 149th Judicial District Court of
Brazoria County, Texas,” which was Judge May’s court.
West moved for summary judgment. At the hearing on that motion, Davis
orally requested a default judgment against HRS. Before Judge Caldwell ruled,
HRS filed its answer. Judge Caldwell denied Davis’s motion for default against
HRS. Judge Caldwell granted West’s summary judgment motion and severed it
into a final judgment. Davis appealed but her appeal was dismissed for failure to
1
See Davis v. West, 317 S.W.3d 301 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
(affirming summary judgment for receiver and bank).
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pay the filing fee. Little activity took place in the trial court over the next two years
on the only remaining claim—Davis’s suit for abuse of process against HRS.
When Judge May retired, Judge Terri Holder was elected to take his place.
Judge Holder set the case for trial. HRS did not appear at the February 2013 trial
date, leading Davis to move for a post-answer default judgment—her second
motion for default judgment. The trial court denied the motion, noting that its file
did not indicate that HRS had received notice of the trial setting. Two months later,
Judge Holder signed an order granting summary judgment to HRS. Davis appeals
the summary judgment in HRS’s favor, arguing that the court lacked jurisdiction.
She also alleges that the trial court erred by denying her two motions for default
judgment.
Recusal
In her first issue, Davis argues that the “149th lacked jurisdiction to render
the decision in this cause” because the cause “was never reassigned back to the
149th Judicial District Court by the Administrative Judge for the Second Judicial
District.” It appears Davis is making two separate arguments: (1) that the 149th
Judicial District Court, as an entity broader than any single judge, lacked
jurisdiction, and (2) that Judge May’s elected replacement, Judge Holder, lacked
authority to dispose of her case. We consider first Davis’s contention that the 149th
lacked jurisdiction.
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A. Recusal of 149th Judicial District Court
Davis contends that the 149th lacked jurisdiction because the administrative
judge assigned the case to another judge and never reassigned it back to the 149th.
Davis relies on section 25.0022 2 of the Texas Government Code to support her
contention; however, that provision does not apply here. It falls within subchapter
B, entitled “General Provisions Relating to Statutory Probate Courts” and concerns
“Administration of Statutory Probate Courts.” TEX. GOV’T CODE ANN. § 25.0022
(West Supp. 2013).
The Rules of Civil Procedure govern recusal of district court judges. See
TEX. R. CIV. P. 18a, 3 18b. A party seeking to recuse a judge may file a verified
motion stating one or more of the grounds listed in rule 18b as a basis for recusal.
TEX. R. CIV. P. 18a(a). The judge can either sign an order of recusal or refer the
motion to the regional presiding judge. TEX. R. CIV. P. 18a(f). In the latter case, if
the motion is granted, “the regional presiding judge must transfer the case to
another court or assign another judge to the case.” TEX. R. CIV. P. 18a(g)(7)
(emphasis added).
2
Davis actually cites this court to section 25.022; however, that section does not
exist. In context, we understand her to be referring to section 25.0022 instead.
TEX. GOV’T CODE ANN. § 25.0022 (West. Supp. 2013).
3
Comment to Rule 18a states as follows: “Rule 18a governs the procedure for
recusing or disqualifying a judge sitting in any trial court other than a statutory
probate court, justice court or municipal court. Chapter 25 of the Government
Code governs statutory probate courts . . . .” TEX. R. CIV. P. 18a comment.
5
Davis’s argument that the 149th lacked jurisdiction after Judge May was
recused is incorrect for three reasons. First, Davis incorrectly categorizes a recusal
issue as a jurisdictional issue. Judicial recusal is a non-jurisdictional issue that
requires either a proper recusal motion or an assertion that the case has been
assigned to another court to avoid waiver. See Buckholts Indep. Sch. Dist. v.
Glaser, 632 S.W.2d 146, 148 (Tex. 1982); McElwee v. McElwee, 911 S.W.2d 182,
185–86 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (noting that ability to
recuse judge can be waived). By contrast, judicial disqualification is a
jurisdictional issue, and any judgment rendered by a constitutionally disqualified
judge is void. See In re Wilhite, 298 S.W.3d 754, 757 (Tex. App.—Houston [1st
Dist.] 2009, orig. proceeding) (noting differences between recusal and
disqualification); Gulf Mar. Warehouse Co. v. Towers, 858 S.W.2d 556 (Tex.
App.—Beaumont 1993, writ denied) (explaining further distinction between
recusal and disqualification).
Second, recusal removes only the individually challenged judge—not the
court—from participation in a case. See TEX. R. CIV. P. 18a, 18b. Rule 18a
contemplates recusal of “a judge who is sitting in the case.” TEX. R. CIV. P. 18a.
Rule 18b states that “a judge” may be recused for one of eight possible reasons,
including “personal bias . . . personal knowledge of disputed evidentiary facts,”
and that “the judge, individually or as a fiduciary, or the judge’s spouse or minor
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child residing in the judge’s household, has a financial interest in the subject
matter.” TEX. R. CIV. P. 18b. These reasons are specific to a judge as an individual
and do not cause the numbered court, as an entity, to also be recused.
Third, not all recusals result in reassignment to another court, as Davis
suggests. Instead, the rules afford the regional presiding judge a choice either (1) to
“transfer the case to another court” or (2) to “assign another judge to the case.”
TEX. R. CIV. P. 18a(g)(7). In this case, the administrative judge assigned Judge
Caldwell to the 149th Judicial District Court to preside over Davis’s case against
HRS. Therefore, the case was not transferred from the 149th. And there is no basis
for concluding that the court lacked jurisdiction as a result of Judge Caldwell’s
assignment.
We turn next to Davis’s contention that recusal of Judge May caused his
replacement, Judge Holder, also to be recused.
B. Recusal of Judge Holder
Davis states that she “outlined [her] objection” to Judge Holder presiding
over her case at the hearing on HRS’s motion for summary judgment; however,
Davis did not state an objection at that hearing or file a written motion to recuse
the judge. Instead, she stated as follows:
MS. DAVIS: Mr. West never did file an answer to this case until
this case was transferred from the 149th. As a matter
of fact, I’d like to reflect on the record, it’s never been
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transferred back to the 149th because it was
transferred out. So in terms of—
COURT: It wasn’t transferred out. It was—Judge Caldwell was
appointed to hear it as a visiting judge, but it wasn’t
transferred from this court.
MS. DAVIS: No. It was transferred from the 149th.
COURT: That’s not what my file reflects. Go ahead.
We read this exchange as an argument that the 149th lacked jurisdiction, a
contention we already have rejected. Davis did not move to recuse Judge Holder.
To the extent Davis is asserting that Judge Holder also should have been recused,
Davis has waived that complaint by failing to raise it in the trial court. Cf. Pena v.
Pena, 986 S.W.2d 696, 700–01 (Tex. App.—Corpus Christi 1998, pet. denied)
(holding that party waived claim for recusal by failing to “specifically request it”
even though party asserted in motion for new trial facts that, if true, would support
recusal motion); see also Barron v. State Att’y Gen., 108 S.W.3d 379, 382 (Tex.
App.—Tyler 2003, no pet.) (explaining that rule 18a requires recusal motion to be
in writing and verified).
Davis contends that she also objected to Judge Holder at a hearing on a
motion for continuance; however, we find no evidence of an objection in the
record.
Having concluded that (1) Judge Caldwell was assigned to the 149th and
that court retained jurisdiction over Davis’s case, and (2) Davis failed to effectively
8
seek recusal of Judge Holder, we hold that Judge Holder had jurisdiction to rule on
HRS’s motion for summary judgment.
We, therefore, overrule issue one.
Denial of Default Judgments
In her second issue, Davis challenges the denial of two separate motions for
default judgment against HRS.
A. Standard of review
Denial of a motion for default judgment is reviewed under an abuse of
discretion standard. See Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (citing Aguilar v. Alvarado, 39 S.W.3d 244,
247–48 (Tex. App.—Waco 1999, pet. denied). Determination of factual matters is
left to the sound discretion of the trial court; however, a trial court abuses its
discretion when it fails to analyze or apply the law correctly. See id.
B. Denial of default judgment in 2009
Davis complains that the visiting judge denied her request for default
judgment against HRS in 2009. She states that she orally moved for default
judgment at the hearing on West’s motion for summary judgment on September
17, 2009—before HRS answered. Davis followed up her oral motion for default
with a written motion filed on October 5, 2009. But on October 1—before Davis
filed her written motion—HRS filed an answer. The order denying the motion,
9
dated October 6, 2009, acknowledged that Davis moved for default in September
but denied the motion because HRS answered on October 1.
The temporal requirement on a judge to rule on a pending motion for default
judgment is only that the judge rule within a “reasonable time.” Barnes v. State,
832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); In
re Martinez Ramirez, 994 S.W.2d 682, 683 (Tex. App.—San Antonio 1998, orig.
proceeding). “Whether the judge has acted within a ‘reasonable’ period of time
depends on the circumstances of the case.” In re Mitchell, No. 10-07-00250-CV,
2008 WL 191477, at *1 (Tex. App.—Waco Jan. 23, 2008, orig. proceeding) (mem.
op.). Appellate courts have held that one month is a reasonable time to pass before
a court rules. See In re Holleman, 2004 WL 624584, at *1 (Tex. App.—San
Antonio Mar. 31, 2004, orig. proceeding) (mem. op.); but see In re Martinez
Ramirez, 994 S.W.2d at 683–84 (deciding that 18 month delay was unreasonable).
In this case, only two weeks passed between the oral motion for default and the
date the court ruled on the motion. We hold that the court ruled within a reasonable
time.
Davis also argues that her right to a default judgment was prejudiced by the
trial court’s delay in ruling until after HRS filed an answer. We disagree. “At any
time before a judgment by default has been actually announced by the court, a
defendant has the right to file his answer.” City of Jefferson v. Jones, 12 S.W. 749,
10
749 (Tex. 1889); In re $475,001.16, 96 S.W.3d 625, 627 (Tex. App.—Houston [1st
Dist.] 2002, no pet.); In re S.K.A., 236 S.W.3d 875, 895 (Tex. App.—Texarkana
2007, pet. denied). “Once an answer is on file, even if it is filed after the due date,
the district court may not render a no-answer default judgment.” Conely v. Tex. Bd.
of Criminal Justice, No. 03-08-00293-CV, 2010 WL 1632972, at *2 (Tex. App.—
Austin Apr. 22, 2010, no pet.) (mem. op.); TEX. R. CIV. P. 239 (judgment by
default). HRS’s answer made Davis’s timing complaint moot. Conely, 2010 WL
1632972, at *2. In Conely, the plaintiff complained on appeal that the trial court
“waited until defendants filed a written answer before it ruled on [his] default
motion.” Id. The appellate court held that, “even when a district court refuses to
rule on a motion for default judgment, once an answer has been filed, any
complaints regarding the district court’s prior failure to act are rendered moot.” Id.
(citing Palacios v. Rayburn, 516 S.W.2d 292, 294 (Tex. App.—Houston [1st Dist.]
1974, no writ) (denying petition for writ of mandamus seeking to compel trial
court to rule on pending motion for default judgment because defendant filed
answer in interim).
We conclude that the trial court did not abuse its discretion by failing to rule
on the motion during the two week period that elapsed between the date of Davis’s
oral request for default and the date HRS answered. We further hold that the filing
of an answer on behalf of HRS mooted Davis’s complaint.
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C. Denial of default judgment in 2013
Davis also argues that the trial court abused its discretion by denying her
motion for a post-answer default judgment presented at the February 2013 trial
setting. HRS failed to appear for trial. Davis presented evidence and moved for
default judgment. Later that day, Judge Holder wrote a letter to the parties stating
that the court did “not find verification that notice of [the trial setting] was given to
Mr. West [attorney for HRS]. Since an answer is on file for Houston Reporting
Services the default requested today is denied.” Subsequently, in a motion to quash
and for protective order, HRS explained that it had received a notice from the court
two years earlier stating that the case had been dismissed and had not received any
notice of the 2013 trial setting.
A post-answer default is possible when a party has filed an answer but fails
to appear for trial. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979).
Once the party answers, that party must be given adequate notice of a trial setting
before a post-answer default can be granted. See TEX. R. CIV. P. 245 (requiring trial
court to give parties not less than forty-five days’ notice of first trial setting, then
“reasonable notice” of any subsequent setting). Failure to appear at trial
“constitutes neither an abandonment of defendant’s answer nor an implied
confession of any issues thus joined by the defendant’s answer.” Stoner, 578
S.W.2d at 682. Judgment cannot be entered on the pleadings; the plaintiff must
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prove his case at trial. Id. (citing Frymire Eng’g Co. v. Grantham, 524 S.W.2d 680
(Tex. 1975)).
Davis points to the trial court’s docket sheet as evidence notice was sent to
HRS of the trial setting. But docket sheets are not evidence and, therefore, cannot
demonstrate that proper notice was given. Pifer v. State, 893 S.W.2d 109, 111
(Tex. App.—Houston [1st Dist.] 1995, pet. ref’d); Guyot v. Guyot, 3 S.W.3d 243,
246 (Tex. App.—Fort Worth 1999, no pet.).
Given the trial court’s explanation that the court’s file did not support the
conclusion that proper notice was given to HRS of the trial setting, we hold that the
trial court did not abuse its discretion denying Davis’s 2013 motion for default
judgment. Cf. Aguilar, 154 S.W.3d at 833 (noting that “determination of factual
matters is left to the sound discretion of the trial court”).
We overrule issue two.
Abuse of Process
Davis sued HRS for the tort of “abuse of process.” HRS filed both a no-
evidence and a traditional motion for summary judgment. In her third issue, Davis
argues that the trial court erred by granting summary judgment to HRS because a
fact issue existed whether HRS abused process in its efforts to obtain and enforce
the judgment against her and HRS failed to establish its right to judgment as a
matter of law.
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A. Standard of review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without
specifying the grounds for doing so, we must uphold the trial court’s judgment if
any of the grounds relied on by the movant is meritorious. Parker v. Valerus
Compression Servs., LP, 365 S.W.3d 61, 65 (Tex. App.—Houston [1st Dist.] 2011,
pet. denied). When reviewing a summary judgment motion, we (1) take as true all
evidence favorable to the nonmovant and (2) indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003).
A party seeking summary judgment may combine in a single motion a
request for summary judgment under the no-evidence standard with a request
under the traditional, as-a-matter-of-law standard. Binur v. Jacobo, 135 S.W.3d
646, 650 (Tex. 2004). If a motion argues both bases for summary judgment and the
order does not specify which motion was granted, we typically review the
propriety of the summary judgment under the no-evidence standard first. See
Parker, 365 S.W.3d at 65. If the no-evidence summary judgment was properly
granted, we need not reach arguments on the traditional motion for summary
judgment. See id.
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To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the
nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied).
B. The tort of abuse of process
The elements of an abuse-of-process claim are (1) the defendant misused a
regularly issued process—e.g., “the issuance of a citation or a writ”—for a purpose
not lawfully warranted by that particular process, (2) the defendant had an ulterior
motive or purpose for misusing the process, and (3) the plaintiff sustained damage
from the irregularity. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.—
Houston [1st Dist.] 1994, no writ); Tandy Corp. v. McGregor, 527 S.W.2d 246,
249 (Tex. App.—Texarkana 1975, writ ref’d n.r.e.); see also Pittsburgh SNF, LLC
v. PharMerica E., Inc., 2:10-CV-363-JRG-RSP, 2012 WL 4509753, at *2 (E.D.
Tex. July 19, 2012), report and recommendation adopted, No. 2:10-CV-363-JRG-
RSP, 2012 WL 4508127 (E.D. Tex. Sept. 28, 2012) (listing examples of
processes). The focus is on the use of the process once it is properly obtained, not
on the motive for originally obtaining the process. See Detenbeck, 886 S.W.2d at
480–81; Tandy, 527 S.W.2d at 249 (“An action for abuse of process presupposes
an originally valid and regular process, duly and properly issued.”); cf. Bossin v.
15
Towber, 894 S.W.2d 25, 33 (Tex. App.—Houston [14th Dist.] 1994, writ denied)
(explaining that malicious prosecution, by contrast, focuses on party’s actions and
malice in getting process issued); Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203,
207–08 (Tex. 1996) (malicious prosecution case).
A suit for abuse of process must be based on an allegation that the other
party misused process for a collateral purpose:
Some definite act or threat not authorized by the process . . . is
required; and there is no liability where the defendant has done
nothing more than carry out the process to its authorized conclusion,
even though with bad intentions. The improper purpose usually takes
the form of coercion to obtain a collateral advantage, not properly
involved in the proceeding itself, such as the surrender of property or
the payment of money, by the use of the process as a threat or a club.
There is, in other words, a form of extortion, and it is what is done in
the course of negotiation, rather than the issuance or any formal use of
the process itself, which constitutes the tort.
Blackstock v. Tatum, 396 S.W.2d 463, 468 (Tex. Civ. App.—Houston 1965, no
writ); cf. Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.—El Paso 1984, writ
ref’d n.r.e.) (seeking exemplary damages as means to extort settlement not abuse of
process because process was used for intended purpose to require answer to
petition). The process must be used to “compel[] a party to do a collateral thing
which he would not be compelled to do” otherwise. See Detenbeck, 886 S.W.2d at
480; Blanton, 681 S.W.2d at 878; Baubles & Beads v. Louis Vuitton, S.A., 766
S.W.2d 377, 378–79 (Tex. App.—Texarkana 1989, no writ) (citing RESTATEMENT
(SECOND) OF TORTS § 682, cmt. b (1977)).
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C. No evidence in support of abuse of process claim
HRS filed a no-evidence motion for summary judgment arguing that Davis
presented no evidence of a misuse of process, e.g., the order appointing a receiver
or the turnover order. In her response, Davis did not argue that HRS misused a
properly obtained process to obtain a collateral advantage. Instead, she argued that
HRS’s suit to collect a debt was filed in the wrong venue, that she was not notified
of the trial setting, that the turnover order was deficient, and that the amount of
funds removed from her account exceeded the judgment. Davis proffered no
evidence in her response to support her complaint that the funds removed exceeded
the lawful amount owed under the default judgment. The court order closing the
receivership lists the amount the receiver removed from Davis’s account, which
matches the amount Davis claims to have been removed. Davis’s other complaints,
challenging the legality of the judgment, are required to have been raised through a
direct appeal of the judgment, not through an independent suit for misuse of a
properly issued process. See Davis v. West, 317 S.W.3d 301, 309 (Tex. App.—
Houston [1st Dist.] 2009, no pet.) (affirming summary judgment for court-
appointed receiver and bank against Davis; noting that Davis “failed to timely
prosecute a direct appeal of the turnover order or seek injunctive or mandamus
relief prohibiting the execution of the turnover order” and stating that appellate
challenge to turnover order and scope of the receiver’s powers constituted “a
17
collateral attack on the turnover order.”); see also Browning v. Prostok, 165
S.W.3d 336, 346 (Tex. 2005) (“A collateral attack is an attempt to avoid the
binding force of a judgment in a proceeding not instituted for the purpose of
correcting, modifying, or vacating the judgment, but in order to obtain some
specific relief which the judgment currently stands as a bar against.”).
Davis presented no evidence that HRS misused process to compel Davis to
act in a collateral way; rather, the only evidence is that the process was used to
satisfy the debt. See Bossin, 894 S.W.2d at 33; see also March v. Cacioppo, 185
N.E.2d 397, 243 (Ill. App. Ct. 1962) (“The complaint does not charge an ulterior
purpose or that either judgment or garnishment was used to effect an objective not
within their proper scope, such as an attempt to force the plaintiffs to do something
other than to pay their supposed debt. There was no abuse of process in this
case.”). Further, the only evidence presented by Davis—her affidavit—stated that
the written request for deposition transcripts did not create a legal obligation for
her to pay HRS the underlying debt, that she was never given a copy of the release
of judgment, and that she was given insufficient notice that the release of judgment
would be used as summary judgment evidence. None of these statements raises a
fact issue concerning misuse of process for a collateral purpose. See Baubles &
Beads, 766 S.W.2d at 379 (stating that neither pleadings nor response to motion for
summary judgment constitutes summary judgment evidence and finding that
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plaintiff failed to present evidence to avoid summary judgment on abuse of process
claim).
Having concluded that Davis presented no evidence that HRS misused a
properly obtained process for a collateral advantage, we conclude that the trial
court did not abuse its discretion granting summary judgment to HRS on Davis’s
abuse of process claim.
We overrule issue three.
Conclusion
Having overruled all three of Davis’s issues, we affirm the judgment of the
trial court.
Harvey Brown
Justice
Panel consists of Justices Keyes, Bland, and Brown.
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