Anthony Norman v. John Giraldo and Monica Liloy

Opinion issued June 5, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00334-CV
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ANTHONY NORMAN, Appellant
V.
JOHN GIRALDO AND MONICA LILOY, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2011-07161
MEMORANDUM OPINION
Appellees John Giraldo and Monica Liloy obtained a no-answer default
judgment against pro se appellant Anthony Norman. 1 In this restricted appeal,
1
Norman’s notice of appeal and his brief identifies only Giraldo as appellee.
However, Monica Liloy is also an “appellee” in this appeal because Norman seeks
to alter the trial court’s judgment in a manner that is adverse to her. See TEX. R.
Norman raises two issues urging reversal of the judgment. Appellant assails the
judgment by asserting that he was not given notice of the default-judgment
hearing. He also asserts that the judgment should be reversed because Appellees’
pleadings fail to state a valid cause of action.
We affirm.
Background Summary
On February 2, 2011, Appellees filed the instant suit against Appellant in the
189th District Court of Harris County. 2 To explain the context of the suit,
Appellees alleged as follows in their petition:
The plaintiffs [Giraldo and Liloy], as co tenants, own real
property located at 4901 Milam Street, Houston, Harris County, Texas
77006. On or about May 1, 2008, John Giraldo entered into a lease
agreement with a third party. It is alleged that John Giraldo failed to
return the security deposit as required by law. Defendant filed suit for
return of the security deposit on October 26, 2009 in cause number
950135 in the County Court at Law Number 3. Monica Liloy was not
made a party of [that] suit. The Court granted the Defendant’s Motion
for Summary Judgment on April 20, 2010 against John Giraldo. John
Giraldo was ordered to pay $17,071.63 plus interest and court cost. A
writ of execution was issued on June 30, 2010 for the sale of real
property located at 4901 Milam Street, Houston, Texas 77006. The
APP. P. 3.1(c) (defining “appellee” as “a party adverse to an appellant”); Nabors
Corporate Servs. v. Northfield Ins. Co., 132 S.W.3d 90, 94 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (analyzing whether party was an “appellee”); see also
See TEX. R. APP. P. 25.1(b) (providing that filing of notice of appeal by any party
invokes jurisdiction over all parties to trial court’s judgment). Thus, we include
Liloy as an appellee in this appeal.
2
Appellees’ suit also named Fabriger Investments, LLC, as a defendant, but it has
not filed a notice of appeal.
2
property was scheduled to be sold by auction on September 7, 2010.
A temporary restraining order and temporary injunction [was] filed in
the 295th District Court of Harris County and was granted in time to
stop the sale in cause number 2010–55816. However the property
was sold at the constable sale despite the court order. Defendant,
Anthony Norman was the buyer of the property despite the temporary
restraining order that was granted before the sale. Anthony Norman
later transferred ownership of the property to Fabriger Investments,
LLC. On September 16, 2010, the trial court judge lifted the
temporary restraining order. However on January 10, 2011, a hearing
was held to determine if a sale had occurred and the judge ruled no
sale had occurred.
Based on these facts, Appellees requested the trial court to issue injunctive
relief ordering Appellant to refrain from entering the property, which Appellees
claimed to own. They also requested the trial court to enjoin Appellant from
collecting rents from tenants, which occupied the property.
In addition to the injunctive relief, Appellees also requested monetary
damages. They sought to be reimbursed for any rental payments that had been
collected by Appellant from tenants of the Milam property and for any damage
caused to the property by Appellant. Appellees also sought for Appellant to return
all keys and access codes to Appellees.
The process server filed an affidavit of service with the trial court on March
2, 2011, indicating that Appellant had been served with Appellees’ petition on
February 21, 2011. Despite receiving service, Appellant never answered the suit.
On January 2, 2013, the trial court granted Appellees’ motion for default judgment
and signed a judgment, awarding Appellees $1 in damages and $7,500 in
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attorney’s fees. In the judgment, the trial also ordered Appellant to “vacate the
premise[s] and surrender possession of the premise[s] to [Appellees] and to return
all property belonging to [Appellees].”
Appellant has filed a restricted appeal. Appellant presents two issues,
challenging the trial court’s default judgment.3
Restricted Appeal
A. Scope and Standard of Review
A restricted appeal is a procedural device available to a party who did not
participate, either in person or through counsel, in a proceeding that resulted in a
judgment against the party. See TEX. R. APP. P. 30. It constitutes a direct attack on
a default judgment. See Gen. Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d
942, 943 (Tex. 1991). In a review by restricted appeal, we afford the appellant the
same scope of review as an ordinary appeal; that is, a review of the entire case,
subject only to one restriction: the error must appear on the face of the record. See
Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Wilson
v. Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied).
A party filing a restricted appeal must demonstrate that (1) it appealed
within six months after the judgment was rendered; (2) it was a party to the
3
Appellees did not file a brief.
4
underlying suit; (3) it did not participate in the actual trial of the case that resulted
in the judgment complained of; (4) it did not timely file a post-judgment motion, a
request for findings of fact and conclusions of law, or a notice of appeal within the
time permitted by Texas Rule of Appellate Procedure 26.1; and (5) error appears
on the face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
848 (Tex. 2004); Ayala v. Ayala, 387 S.W.3d 721, 726 (Tex. App.—Houston [1st
Dist.] 2011, no pet.). In this case, the record shows (1) Appellant appealed within
six months after the judgment was rendered; (2) he was a party to the underlying
suit; (3) he did not participate in the default-judgment hearing; and (4) he did not
timely file a post-judgment motion, a request for findings of fact and conclusions
of law, or a notice of appeal. See Alexander, 134 S.W.3d at 847–48. Thus, the
first four elements of a restricted appeal are satisfied. Here, the issue to be
determined is whether error appears on the face of the record. See id.
The face of the record includes all papers on file in the appeal, including the
clerk’s record and any reporter’s record. See Norman Commc’ns, 955 S.W.2d at
270; DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991); Ayala, 387
S.W.3d at 726. Error generally may not be inferred from silence in the record;
thus, absent affirmative proof of error, a restricted appeal fails. See Alexander, 134
S .W.3d at 849–50 (holding silence in the record on restricted appeal about
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whether notice was provided in hearing to dismiss for want of prosecution amounts
to absence of proof of error).
B. Sufficiency of Appellees’ Pleadings
In his first issue, Appellant asserts that the judgment must be reversed
because Appellees’ pleading failed to state a cognizable cause of action.
A default judgment must be supported by a petition that states a cause of
action. See Fairdale Ltd. v. Sellers, 651 S.W.2d 725, 725 (Tex. 1982). The
purpose of a pleading is to provide the defendant with fair notice of the cause of
action and of the character of evidence that will be raised at trial, as well as to
define the issues to be heard. See Pinter v. Asafi Law Firm, No. 01-12-00048-CV,
2012 WL 5458426, at * 3 (Tex. App.—Houston [1st Dist.] Nov. 8, 2012, no pet.)
(citing Wilson, 169 S.W.3d at 369). When determining whether a pleading
properly includes an allegation, we must look at the pleading from the perspective
of the person against whom the pleading is made. Wilson, 169 S.W.3d at 369
(citing Erisman v. Thompson, 167 S.W.2d 731, 733 (Tex. 1943). A petition is
sufficient if a cause of action reasonably may be inferred from what is stated in the
petition, even if an element of the action is not specifically alleged. See Pinter,
2012 WL 5458426, at * 3 (citing Westcliffe, Inc. v. Bear Creek Const., Ltd., 105
S.W.3d 286, 292 (Tex. App.—Dallas 2003, no pet.)). “Mere formalities, minor
defects, and technical insufficiencies will not invalidate a default judgment where
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the petition states a cause of action and gives ‘fair notice’ to the opposing party of
the relief sought.” Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979).
Here, a trespass-to-try-title claim may reasonably be inferred from
Appellees’ petition. A trespass-to-try-title action is a procedure by which
competing claims to title or the right to possession of real property may be
adjudicated. See Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994);
see also I–10 Colony, Inc. v. Lee, 393 S.W.3d 467, 480 (Tex. App.—Houston
[14th Dist.] 2012, pet. denied) (stating that trespass-to-try-title lawsuit is an action
to recover possession of land withheld from an owner with a right to immediate
possession). A trespass-to-try-title suit must be brought against the person in
possession if the premises are occupied. See TEX. R. CIV. P. 784. To recover, a
claimant must establish a prima facie right of title by proving one of the following:
(1) a regular chain of conveyances from the sovereign; (2) a superior title out of a
common source; (3) title by limitations; or (4) prior possession, which has not been
abandoned. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004). Damages
available in a trespass-to-try-title suit include lost rents and profits, damages for
use and occupation of the premises, and damages for any special injury to the
property. See TEX. R. CIV. P. 783(f) (recognizing recoverability of “rents and
profits” in trespass to try title actions); see also Coinmach Corp. v. Aspenwood
Apartment Corp., 417 S.W.3d 909, 921 (Tex. 2013).
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As set out above, Appellees’ petition implicated a dispute concerning title to
real property. Appellees sued Appellant, a party alleged to be in possession of the
property. Appellees claimed superior title to the Milam property and asserted that
they were entitled to possession. More specifically, Appellees alleged that they are
the “record owners” and that they had been in possession of the property until it
was purportedly sold to Appellant at the constable’s sale. In the petition,
Appellees sought to recover possession of the property and to recover damages,
including lost rents and damages for injury to the property. We conclude that the
face of the record shows that Appellees alleged a cause of action in their petition
sufficient to provide Appellant fair notice of the claim and to support the default
judgment. 4
We overrule Appellant’s first issue.
Notice of Hearing
In his second issue, Appellant complains that he did not have notice of the
default-judgment hearing.5
4
A default judgment may be rendered in a trespass-to-try-title action. See TEX. R.
CIV. P. 799.
5
Appellant states that the trial court, which is a Harris County district court, had
neither subject-matter jurisdiction over the suit nor personal jurisdiction over him.
He is incorrect. District courts are tribunals of general jurisdiction with exclusive,
appellate, and original jurisdiction in all causes unless the domain has been
constitutionally or statutorily specified elsewhere.’” See It’s the Berrys, L.L.C. v.
Edom Corner, L.L.C., 271 S.W.3d 765, 770 (Tex. App.—Amarillo 2008, no pet.)
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A plaintiff may take a default judgment against a defendant who, like
Appellant, fails to file an answer. See TEX. R. CIV. P. 239. The plaintiff may take
the default judgment without further notice if the defendant has not filed a written
answer or otherwise “appeared” in the action. See Wilson v. Wilson, 132 S.W.3d
533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). But if the defendant
has answered or appeared in some manner, due process thereafter entitles the
defendant to notice of any trial setting—and that includes a hearing on a motion for
default judgment. See LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390,
390–91 (Tex. 1989); In re Marriage of Runberg, 159 S.W.3d 194, 197 (Tex.
App.—Amarillo 2005, no pet.).
Here, the face of the record does not reflect—and Appellant does not
assert—that Appellant filed an answer or otherwise appeared in the trial court
before the default-judgment was rendered. Appellant has not shown that he was
entitled to notice of the default-judgment hearing. See Wilson, 132 S.W.3d at 536.
We overrule Appellant’s second issue.
(citing 1 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice:
Courts § 3:30 n.1 (2d ed. 2004)); see TEX. CONST. art. V, § 8; TEX. GOV’T CODE
ANN. § 24.008 (Vernon 2004). For “courts of general jurisdiction, . . . the
presumption is that they have subject-matter jurisdiction unless a showing can be
made to the contrary.” Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.
2000). No showing to the contrary has been made in this suit. In addition, the
trial court had personal jurisdiction over Appellant because the record reflects that
he was properly served with process. See In re E.R., 385 S.W.3d 552, 563 (Tex.
2012).
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Conclusion
We hold that the face of the record does not show error, as asserted by
Appellant. Accordingly, we affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
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