Kevin Beal v. All American Glass Distributors, Inc. ( 1991 )

Beal v. All American IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN







NO. 3-90-105-CV





KEVIN BEAL,

APPELLANT

vs.





ALL AMERICAN GLASS DISTRIBUTORS, INC.,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY

NO. 189,808, HONORABLE J. DAVID PHILLIPS, JUDGE

This is a suit on a sworn account. The court rendered judgment against the defendant, Kevin Beal, for $13,487.28 on the unpaid account, $4,300 for attorney's fees, plus interest and costs. Beal, who appeared pro se at the trial, thereafter obtained an attorney and filed a motion for new trial. The trial court denied the motion and Beal brings this appeal. We will affirm the trial court's judgment.

BACKGROUND

All American Glass Distributors, Inc. ("All American") sued Kevin Beal d/b/a/ "A Glass Touch" in his individual capacity on a sworn account for unpaid auto-glass invoices. ⁽¹⁾ Without hiring an attorney, Beal filed an unverified answer denying liability in his individual capacity for the debts of the corporation, A Glass Touch Corp. All American mailed notice of the trial setting to Beal on December 21, 1989. The certified-mail receipt showed that Beal received the notice on December 26, 1989. On January 4, 1990, nine days after receiving notice, Beal appeared pro se and announced ready at trial. Beal asked the court for additional time to retain counsel when it became clear that he could not assert his capacity defense because of his failure to file a verified denial. See Tex. R. Civ. P. Ann. 93(2) (Supp. 1991) (an answer stating that the defendant is not liable in the capacity in which he or she has been sued must be verified by an affidavit). The court denied appellant's request for a continuance and, after hearing evidence, rendered judgment against Beal.

Beal then obtained counsel and timely filed a motion for new trial on two grounds: (1) he did not receive ten days' notice of the trial setting as required by Tex. R. Civ. P. Ann. 245 (1989); and (2) the court erred in awarding attorney's fees because All American had failed to establish that demand was made on Beal thirty days before the judgment. After hearing evidence the court denied Beal's motion.

INADEQUATE NOTICE OF TRIAL SETTING

The trial court enjoys broad discretion in ruling on a motion for new trial. Champion Int'l. Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988). We will not disturb the ruling unless we determine that the court abused its discretion by reaching a decision "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

At the hearing on the motion for new trial Beal complained that he had not received ten days' notice of the trial setting as required by Tex. R. Civ. P. Ann. 245 (1989) [now amended to require 45 days' notice (Supp. 1991)]. His first point of error on appeal asserts that the court erred in denying his motion on this ground. Beal testified that he received the notice on December 26, 1989, but left town for a week without contacting an attorney regarding the January 4, 1990, trial setting. Beal testified that he believed All American had sued him in the wrong capacity and that he therefore chose not to obtain a lawyer for the trial. He did not attempt to submit a motion for continuance or a motion to strike the trial setting due to inadequate notice. After arriving late to the trial on January 4, 1990, he announced ready. When asked why he did not raise the notice issue at trial, Beal testified, "I don't know the law. I am not an attorney."

A litigant has the right to proceed in a civil case without hiring an attorney. Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex. 1983). But, the pro se litigant will be held to the same standard as a licensed attorney. Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App. 1982, no writ).

A party's right to be heard is fundamental and failure to give adequate notice of a trial setting may constitute lack of due process. See R. Wright Armstrong v. Manzo, 380 U.S. 545, 550-52 (1965). When Beal announced ready and failed to inform the court of the inadequate notice, however, the trial court could reasonably conclude that Beal had received adequate notice of the trial setting or had waived any complaint regarding notice. Moreover, Beal was not denied an opportunity to be heard. He presented his case and cross-examined All American's witness.

Although few cases address the issue of inadequate notice of a trial setting, one court has held that the defendant waives any complaint regarding inadequate notice by failing to raise the issue timely. Ascension Chem. v. Wilson, 650 S.W.2d 104, 107 (Tex. App. 1983, writ ref'd n.r.e.). Immediately after that case was called the defendant vocally moved to strike the setting and obtain a continuance, without stating any basis for the motion. The court overruled the motion and proceeded with jury selection. The defendant then asserted inadequate-notice. The reviewing court held that the trial court did not abuse its discretion in denying the motion for continuance because the defendant had waived the notice requirement by not timely presenting the matter. Id. at 107-08.

The cases upon which Beal relies in this appeal involve default judgments. See Watson v. Grissom, 675 S.W.2d 813 (Tex. App.), reversed, 704 S.W.2d 325 (1984); P. Bosco & Sons Contracting Corp. v. Conley, Lott, Nichols Machinery Co., 629 S.W.2d 142 (Tex. App. 1982, writ ref'd n.r.e.); Morris v. Morris, 554 S.W.2d 792 (Tex. Civ. App. 1977, no writ). In each instance, as a result of inadequate notice, parties did not appear at the trial and had no opportunity to be heard. We conclude that they do not control the disposition of this case in which Beal appeared and announced ready.

Beal also invites our attention to Read v. Gee, 551 S.W.2d 496 (Tex. Civ. App. 1977, writ ref'd n.r.e.). In that case the trial court conducted a hearing and issued an order even though some of the parties had only twenty-four hours oral notice of the hearing. According to the record, the parties raised the inadequate notice issue before the court heard the evidence. The appellate court reversed and remanded the cause because the trial court failed to comply with the provisions of rule 245. Id. at 500. Had Beal raised the notice issue at trial, the court may have abused its discretion by not granting a timely motion to strike the setting or a timely motion for continuance.

Beal chose to appear pro se and failed to raise the notice issue in a timely fashion. Pro se litigants must comply with the applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). Because we conclude that the trial court did not abuse its discretion in denying the motion for new trial, we overrule the first point of error.

PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES

In his second point of error Beal complains that the trial court erred in denying the motion for new trial because he had established that All American failed to present its claim in the manner required for recovery of attorney's fees. See Tex. Civ. Prac. & Rem. Code Ann. § 38.002 (1986). No particular form of presentment is required to satisfy section 38.002. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). The presentment must simply inform the defendant of the claim and give the defendant an opportunity to avoid liability for attorney's fees by paying the claim within thirty days. Id. We must liberally construe the statute to promote this purpose. Tex. Civ. Prac. & Rem. Code Ann. § 38.005 (1986).

At trial, All American presented evidence that on November 13, 1989, it mailed a certified letter to the business address of "A Glass Touch," demanding payment in full on the past- due accounts. The certified-mail receipt showed that Nancy Beal, appellant's wife, received the demand letter at the business address on November 14, 1989. Mr. Beal argued that he personally never saw the demand letter and that Nancy Beal was not an agent or principal of the business. Kevin and Nancy Beal were engaged in divorce proceedings at the time the demand letter was sent. Kevin testified that Nancy had violated temporary orders in the divorce proceeding by signing the certified-mail receipt for the demand letter without showing it to him. But the orders introduced at the hearing directed Nancy Beal not to open Kevin Beal's personal mail and did not mention business correspondence. Nonetheless, he argues that he never received the demand letter, and therefore All American failed to meet the requirements of section 38.002.

All American's bookkeeper testified that she had received checks signed by Nancy Beal in payment for purchases by "A Glass Touch." Beal did not show that he had informed All American that Nancy Beal was no longer an authorized agent of "A Glass Touch" or that business correspondence should not be mailed to the business address.

In a non-jury case, the trial court must determine the witnesses' credibility and weigh their testimony. Nelson v. Jordan, 663 S.W.2d 82, 86 (Tex. App. 1983, writ ref'd n.r.e.). The court could reasonably conclude that All American had properly presented its claim by mailing the demand letter to the business address of "A Glass Touch."

The record contains additional evidence that All American had presented its claim at least thirty days before the judgment. All American introduced copies of 108 invoices representing the unpaid claim. All American mailed these invoices to "A Glass Touch" in July, August and September of 1989, several months before the judgment. Invoices constitute sufficient presentation of a claim for the purpose of obtaining attorney's fees. See, e.g., Adams v. Petrade Int'l, 754 S.W.2d 696, 719 (Tex. App. 1988, writ denied); Roylex Inc. v. Avco Community Developers, Inc., 559 S.W.2d 833, 838 (Tex. Civ. App. 1977, no writ).

At the trial, All American's bookkeeper testified that she vocally requested payment on the claim from Mr. Beal. She also testified that she was not sure if she made those requests before November 1989. Her vocal demand would have been effective if it was made before December 5th, 1989, thirty days before the judgment. Again we must defer to the trial court in weighing the testimony. If the trial court chose to believe it, her testimony would be sufficient evidence of a presentation of the claim. See King Optical v. Auto Data Processing of Dallas, Inc., 542 S.W.2d 213, 217 (Tex. Civ. App. 1976, writ ref'd n.r.e.).

We hold that the court did not abuse its discretion when it denied Beal's motion for new trial on the second ground. See Johnson, 700 S.W.2d at 917. We overrule the second point of error and affirm the trial court's judgment.

Bea Ann Smith, Justice

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Affirmed

Filed: August 14, 1991

[Do Not Publish]

1. Beal operated the business, "A Glass Touch," as a sole proprietorship from 1986 until December 1987. Beal testified that in January 1988, Glass Touch Corp. filed articles of incorporation and began doing business as "A Glass Touch." He stated that it was common knowledge that "A Glass Touch" had incorporated. All American's representatives testified that they never received notice of the change and presented evidence of a check dated September 19, 1989, from "A Glass Touch" with no indication of its corporate status.