Kimberly Ford A/K/A Kimberly Keefer v. Skyline Mobile Home Estates ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00244-CV
___________________________
KIMBERLY FORD A/K/A KIMBERLY KEEFER, Appellant
V.
SKYLINE MOBILE HOME ESTATES, Appellee
On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2022-002671-1
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
This is an appeal from a default judgment entered against Appellant Kimberly
Ford a/k/a Kimberly Keefer after she failed to file an answer to Appellee Skyline
Mobile Home Estates’s complaint for eviction. Because Ford failed to preserve error
for our appellate review, we affirm the default judgment.
I. Background
Ford was past due on her condominium fees owed to Skyline for Lot 11 and
the manufactured home located on Lot 11. On November 6, 2020, Skyline sent Ford
a notice to vacate demanding that she either vacate Lot 11 within thirty days or
“[a]lternatively and recognizing that [she] dispute[s] the validity of Skyline’s previous
foreclosure,” pay the past-due fees within twenty days, or “Skyline will assess all
allowable fees and proceed with foreclosure.” 1
On April 29, 2022, Skyline filed a sworn complaint for eviction against Ford in
justice court on the grounds that it had foreclosed on its lien and owned Lot 11. Ford
did not file a sworn denial or any other answer to the complaint in the justice court.
1
The parties dispute who owned Lot 11 on November 6, 2020. Ford contends
that as of November 6, 2020, Skyline had not foreclosed on Lot 11. Skyline, however,
asserts that it had foreclosed on Lot 11 on March 3, 2020, and that the notice’s
statement regarding Ford’s ability to cure the default was inaccurate. The foreclosure
deed is not in the record.
2
On May 16, 2022, the justice court held an eviction hearing and entered a possession
judgment in favor of Skyline. 2 Ford appealed to county court for a trial de novo.
Skyline filed a motion for final default judgment in the county court asking the
county court to affirm the justice court’s judgment of eviction. See Tex. R. Civ. P.
510.12. Skyline did not seek monetary damages or attorney’s fees. According to
Skyline’s motion, on May 26, 2022, the county court had sent a letter to the parties
warning Ford that she was required to file a written answer in county court within
eight days or default could be entered against her according to Texas Rule of Civil
Procedure 510.12.3 Ford did not file an answer or otherwise respond.
On June 22, 2022, having found that Ford did not file an answer, the county
court granted Skyline’s motion for default judgment and entered a final default
judgment against Ford awarding Skyline possession of Lot 11 and court costs. No
motion for new trial or motion to set aside the default judgment was filed in the
county court. Instead, Ford timely filed this appeal.
On appeal, Ford argues that Skyline was not entitled to a default judgment on
the face of its pleadings or its evidence because it did not (1) show a prima facie case
2
The justice court’s judgment of eviction indicates that Ford appeared at the
eviction hearing and announced ready for trial. We do not have a reporter’s record or
any transcript of the eviction hearing in the justice court.
3
The county court’s May 26, 2022 letter is not included in the record.
Nevertheless, Rule 510.12 required Ford to file a written answer within eight days
after the justice court transcript was filed in the county court or “the allegations of the
complaint may be taken as admitted and judgment by default may be entered
accordingly.” See Tex. R. Civ. P. 510.12.
3
for eviction, (2) meet its burden of proof to establish it had provided a legally and
factually sufficient notice to vacate prior to asserting a forcible detainer action, or
(3) prove ownership. Skyline responds that it was entitled to default judgment based
on Ford’s failure to file an answer and that Ford has not proved the necessary
elements to overturn a default judgment.
We do not determine whether the default judgment should be set aside because
Ford failed to preserve error for our review.
II. Discussion
As a prerequisite to our appellate review, “the record must show that . . . the
complaint was made to the trial court by a timely request, objection, or motion.” Tex.
R. App. P. 33.1(a); see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006)
(“Except for fundamental error, appellate courts are not authorized to consider issues
not properly raised by the parties.”); Evans v. Linares, No. 14-14-00468-CV, 2015 WL
1874232, at *2 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015, pet. dism’d w.o.j.)
(mem. op.).
The default judgment entered against Ford “operated as an admission of all
allegations of fact set out” in Skyline’s complaint for eviction, including Skyline’s
foreclosure and ownership of Lot 11 and Skyline’s delivery of the November 6, 2020
notice to vacate. See Alvarez v. Agyemang, No. 02-19-00301-CV, 2020 WL 719440, at *2
(Tex. App.—Fort Worth Feb. 13, 2020, no pet.) (mem. op.); see also Paradigm Oil, Inc. v.
Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012) (“[T]he non-answering party
4
in a no-answer default judgment is said to have admitted both the truth of facts set
out in the petition and the defendant’s liability on any cause of action properly alleged
by those facts.”); Dolgencrop of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009). To
set aside the default judgment, Ford was required to satisfy the three-factor standard
established in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm’n
Op.] 1939).
Under Craddock, the defaulting party must establish (1) that the failure to appear
was not “intentional, or the result of conscious indifference . . . , but was due to a
mistake or an accident”; (2) that the defaulting party has a meritorious defense; and
(3) that the granting of a new trial “will occasion no delay or otherwise work an injury
to the plaintiff.”4 Id. Because the defaulting party has the burden to satisfy the three-
factor Craddock standard, she must present any necessary evidence to meet that
burden. Id. A motion for new trial is the proper “vehicle for offering such evidence
into the record.” Onwubuche v. Olowolayemo, No. 01-10-00945-CV, 2012 WL 1067950, at
*2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no pet.) (mem. op.); see Puri v.
Mansukhani, 973 S.W.2d 701, 715 (Tex. App.—Houston [14th Dist.] 1998, no pet.)
(discussing Texas Rule of Appellate Procedure 324 and explaining that motion for
new trial to set aside default judgment is complaint on which evidence must be heard).
4
Ford’s appellate brief is not only devoid of any argument that she satisfied the
Craddock factors but also wholly fails to cite Craddock—or any other caselaw or
authority. Instead, she attacks Skyline’s complaint for eviction and attempts to shift
the burden of proof to Skyline. We do not reach the merits of Ford’s issues because
she failed to preserve error.
5
“This is so the trial court has the opportunity to consider and weigh the evidence.”
Barrett v. Westover Park Cmty. Ass’n, Inc., No. 01-10-01112-CV, 2012 WL 682342, at *2
(Tex. App.—Houston [1st Dist.] Mar. 1, 2012, no pet.) (mem. op.) (citing Ginn v.
Forrester, 282 S.W.3d 430, 432 (Tex. 2009)).
Ford did not file a motion for new trial or otherwise raise her complaints
regarding the county court’s failure to set aside the default judgment, nor did she
introduce any extrinsic evidence into the record by any other method. Indeed, the
record is devoid of any evidence to determine whether she satisfied the Craddock
standard. 5 See Craddock, 133 S.W.2d at 126. Accordingly, we conclude that Ford failed
to preserve her complaints about the judgment for our review. See Mack Trucks, Inc.,
206 S.W.3d at 577; Alvarez, 2020 WL 719440, at *2 (“[A] party fails to preserve error
in a direct appeal from a default judgment if the party fails to file a motion for new
trial establishing the Craddock elements.”); see also Tex. R. Civ. P. 324(b)(1) (“A point in
a motion for new trial is a prerequisite to . . . [a] complaint on which evidence must be
5
Broadly interpreting Ford’s brief, her complaints are essentially alleged
meritorious defenses to Skyline’s complaint for eviction. See Hampton-Vaughan Funeral
Home v. Briscoe, 327 S.W.3d 743, 748 (Tex. App.—Fort Worth 2010, no pet.) (“[T]he
motion [for new trial] sets up a meritorious defense if it alleges facts which in law
would constitute a defense to the plaintiff’s cause of action.”). But as we have stated,
the county court’s default judgment “operated as an admission of all allegations of
fact set out” in Skyline’s complaint for eviction, see Alvarez, 2020 WL 719440, at *2,
and Ford failed to challenge the judgment by filing a motion for new trial establishing
the Craddock elements and putting forth evidence in support of her purported
meritorious defenses. See Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (“The motion
must . . . be supported by affidavits or other evidence proving prima facie that the
defendant has such meritorious defense.”).
6
heard such as . . . [a] failure to set aside a judgment by default[.]”); Onwubuche, 2012
WL 1067950, at *2; Massey v. Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.—
Houston [1st Dist.] 2000, pet. denied) (“Complaints regarding the trial court’s failure
to set aside a default judgment must be raised in a motion for new trial.”).
III. Conclusion
Having concluded that Ford failed to preserve error for our review, we overrule
her challenge to the county court’s grant of a default judgment. Accordingly, we
affirm the county court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: June 1, 2023
7