Opinion
No. 05-04-01027-CV
Opinion Filed September 12, 2005.
On Appeal from the County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. CC-04-02288-E.
Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION NUNC PRO TUNC
On the court's own motion, we issue this opinion nunc pro tunc to correct a clerical error in our July 18, 2005 opinion. We vacate our previous opinion. This is now the opinion of the court.
Citation to Tex. R. Civ. P. 574b corrected to Tex. R. Civ. P. 749 and parenthetical explanation added to citation to Tex. Civ. Prac. Rem. Code Ann. § 51.002.
Ann Stewart, an attorney appearing pro se, appeals the final judgment against her in a forcible detainer action. Stewart specifies 30 points on appeal, but condenses them into three broad issues premised on her overarching complaint that the County Court at Law abused its discretion by failing to grant her motion for new trial because she established a meritorious defense.
In her three broad issues, Stewart generally argues that both the Justice of the Peace Court and County Court at Law erred when they entered default judgments against her due to her failure to appear. Stewart generally argues in her first broad issue, that she established a meritorious defense by showing that the County Court at Law lacked jurisdiction because: (1) she filed a complaint for re-entry which sufficiently answered Trammell Properties complaint; (2) service of process in the Justice of the Peace Court was defective; and (3) Trammell Properties' complaint failed to state a prima facie cause of action. In her second broad issue, Stewart generally contends she established a meritorious defense by showing that there was no evidence to support Trammell Properties' complaint because: (1) Trammell Properties failed to offer evidence of the conditions precedent to a forcible detainer action; and (2) not even a scintilla of evidence supports Trammell Properties' forcible detainer action. In her third broad issue, Stewart generally contends she established a meritorious defense by showing that she was constructively evicted.
We do not have jurisdiction over any of Stewart's points which address the Justice of the Peace Court's judgment. Accordingly, we do not address those points which directly assert error in that judgment, or the portions of any of her points which address the Justice of the Peace Court's judgment either specifically or in general, vague terms. We decide Stewart's points as to the County Court at Law's judgment against her. The County Court at Law's judgment is affirmed. Because the issues in this appeal are well settled, we issue this memorandum opinion. See Tex.R.App.P. 47.4.
In her fifth, sixth, eleventh, twelfth, fourteenth, twenty-seventh, and twenty-ninth points, Stewart asserts specifically error in the Justice of the Peace Court's judgment. Her first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, assert error in the judgments of both the Justice of the Peace Court and the County Court at Law. Stewart's fourth, twenty-fifth, twenty-sixth, and thirtieth points do not identify which court's judgment she addresses.
I. FACTUAL AND PROCEDURAL BACKGROUND
Trammell Properties filed a forcible detainer action against Stewart in the Justice of the Peace Court. Stewart filed a complaint for re-entry. The Justice of the Peace Court entered a default judgment against Stewart when she failed to appear for trial.
Stewart appealed to the County Court at Law for a trial de novo where she generally denied the complaint and requested a trial. On April 6, 2004, the County Court at Law entered a default judgment against Stewart for failure to appear and signed the final judgment. Stewart filed a motion for new trial on May 7, 2004. In her motion for new trial, she argued that: (1) her failure to appear was the result of a deflated tire and unexpected traffic delays, and claimed that she called the clerk of the court to say she would be late; (2) her affidavit sets out her meritorious defense; and (3) there would be no undue delay because she filed a timely answer. Stewart did not obtain a hearing date until June 3, 2004, when the trial judge signed the fiat setting the matter for a hearing on July 19, 2004. Stewart's motion for new trial was overruled by operation of law on June 20, 2004. See Tex. R. Civ. P. 329b(c). On July 19, 2004, Stewart appeared at the hearing on her motion for new trial, but Trammell Properties did not. The County Court at Law reset the matter for a hearing on the following day because Stewart could not show she provided Trammell Properties notice of the hearing. On July 20, 2004, neither Stewart nor Trammell Properties appeared for the hearing.
The docket sheet shows the trial court waited one half hour for Stewart to appear. When she did not appear, the trial court entered the default judgment against her.
In a letter brief to this court regarding jurisdiction, Stewart asserts that she mailed her motion for new trial on May 6, 2004. Although Stewart does not provide this Court with proof that she timely mailed her motion for new trial, Trammell Properties did not dispute this fact in its letter brief on jurisdiction. We may accept uncontroverted representations of counsel as evidence. Davis v. State, 130 S.W.3d 519, 521 (Tex.App.-Dallas 2004, no pet.).
Some of the statements in Stewart's affidavit relate to her husband's actions and interaction with Trammell Properties, for which she could not have personal knowledge. There is no affidavit from Stewart's husband in the record.
II. JUSTICE OF THE PEACE COURT'S JUDGMENT
A party may appeal a justice court judgment for a trial de novo in the county or district court. See Tex. Civ. Prac. Rem. Code Ann. § 51.001 (Vernon 1997 Supp. 2004-05); Tex. R. Civ. P. 749; see also Tex. Civ. Prac. Rem. Code Ann. § 51.002 (forcible entry and detainer actions may not be removed from justice court by writ of certiorari). When an appeal from a justice court judgment is perfected in a county court, the judgment of the justice court is annulled. In re Garza, 990 S.W.2d 372, 374 (Tex.App.-Corpus Christi 1999, orig. proceeding); Sanchez v. Huntsville Independent School Dist., 844 S.W.2d 286, 289 (Tex.App.-Houston [1st Dist.] 1992, no writ); see Advance Imports, Inc. v. Gibson Prod. Co., Inc. of Sherman, 533 S.W.2d 168, 170 (Tex.Civ.App.-Dallas 1976, no writ). The parties must proceed in the county court as though no judgment had been rendered by the justice court. In re Garza, 990 S.W.2d at 374. A party may take an appeal or writ of error to the court of appeals from a final judgment of the district or county court. Tex. Civ. Prac. Rem Code Ann. § 51.012 (Vernon 1997 Supp. 2004-05).
This Court does not have jurisdiction to review the Justice of the Peace Court's judgment because it was annulled when Stewart perfected her appeal in the County Court at Law. Accordingly, we have no jurisdiction and cannot address the merits of those points, or the portions of her points complaining about the Justice of the Peace Court's judgment.
See supra n. 1.
III. COUNTY COURT AT LAW'S JUDGMENT
Now, we address Stewart's three issues only as to the County Court at Law's judgment. Generally, Stewart complains that the County Court at Law abused its discretion by denying her motion for new trial because she established a meritorious defense. She argues generally in her first broad issue, that she established a meritorious defense by showing that the County Court at Law lacked jurisdiction because: (1) she filed a complaint for re-entry which sufficiently answered Trammell Properties complaint; (2) service of process in the Justice of the Peace Court was defective; and (3) Trammell Properties' complaint failed to state a prima facie cause of action. In her second broad issue, Stewart generally contends she established a meritorious defense by showing that there was no evidence to support Trammell Properties' complaint because: (1) Trammell Properties failed to offer evidence of the conditions precedent to a forcible detainer action; and (2) not even a scintilla of evidence supports Trammell Properties' forcible detainer action. In her third broad issue, Stewart generally contends she established a meritorious defense by showing that she was constructively evicted.
In her third, seventh, tenth, fifteenth, seventeenth, eighteenth, twentieth through twenty-third, and twenty-eighth points, Stewart asserts error in the County Court at Law's final judgment. Also, as previously discussed, in her first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, Stewart asserts, in part, error in the judgment of the County Court at Law. Further, we construe Stewart's general arguments in her fourth, twenty-fifth, twenty-sixth, and thirtieth points as assigning error in the judgment of the County Court at Law.
A. Standard of Review
An appellate court reviews a trial court's ruling on a motion for new trial for an abuse of discretion. Director, State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Lowe v. Townview Watersong, L.L.C., 155 S.W.3d 445, 447 (Tex.App.-Dallas 2004, no pet.). A trial court abuses its discretion by not granting a new trial when all three elements, of what is referred to as the Craddock test, are met. Director, 889 S.W.2d at 268; Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). If no hearing was conducted by the trial court, an appellate court reviews the ruling based on the affidavits attached to the verified motion for new trial following a default judgment. See Ward v. Nava, 488 S.W.2d 736, 737 (Tex. 1972).
B. Applicable Law
Under the Craddock test, a trial court should set aside a default judgment and order a new trial in any case in which: (1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; (2) provided the motion for a new trial sets up a meritorious defense; and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Director, 889 S.W.2d at 268; Craddock, 133 S.W.2d at 126. These prerequisites for setting aside a no-answer default judgment have been applied to post-answer default judgments. Director, 889 S.W.2d at 268. The defaulting defendant has the burden of proving that all three elements of the Craddock test are met before a trial court is required to grant a motion for new trial. Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587, 590 (Tex.App.-El Paso 2005, no pet.); Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 247 (Tex.App.-Corpus Christi 2004, no pet.); cf. Mathis v. Lockwood, No. 04-0516, 2005 WL 1415366, at *1-2 (Tex. Jun. 17, 2005) (if challenging notice of trial setting, defaulting party need only prove first element and not second and third elements of Craddock test to have post-answer default judgment set aside).
C. Application of the Law to the Facts
All of Stewart's points and issues address a single, overarching proposition wherein she claims the trial court abused its discretion in failing to grant her motion for new trial because, in her view, she raised meritorious defenses. However, Stewart must prove all three elements of the Craddock test to show that the County Court at Law abused its discretion when her motion for new trial was overruled by operation of law because she has not claimed at trial or on appeal that she did not receive notice of the trial setting. See Scenic Mountain Medical Center, 162 S.W.3d at 590; Padrino Maritime, Inc., 130 S.W.3d at 247; cf. Mathis, 2005 WL 1415366, at *1-2. Although she argued all three Craddock elements in her motion for new trial and attached an affidavit to support the first two elements, Stewart only argues on appeal that the trial court abused its discretion by denying her motion for new trial because she established a meritorious defense. She does not bring forward and address on appeal any argument that she met: (1) the first requirement under Craddock that her failure to appear was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; or (2) the third element under Craddock that her motion for new trial was filed at a time when the granting thereof would have occasioned no delay or otherwise worked an injury to Trammell Properties. On the record before us and based on the points and issues raised by Stewart on appeal, we cannot conclude that the trial court abused its discretion when Stewart's motion for new trial was overruled by operation of law.
Stewart's third, seventh, tenth, fifteenth, seventeenth, eighteenth, twentieth through twenty-third, and twenty-eighth points, are decided against her. Also, her first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, to the extent they complain about the County Court at Law's judgment, are decided against her. Finally, Stewart's general argument in her fourth, twenty-fifth, twenty-sixth, and thirtieth points, which we construed as arguing error in the judgment of the County Court at Law, are decided against her. Accordingly, Stewart's three issues on appeal relating to the above points complaining of the County Court at Law's judgment are decided against her.
III. CONCLUSION
We do not have jurisdiction to review and do not address: (1) Stewart's fifth, sixth, eleventh, twelfth, fourteenth, twenty-seventh, and twenty-ninth points which directly assert error in the Justice of the Peace Court's judgment; (2) Stewart's first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points to the extent she complains about the Justice of the Peace Court's judgment; and (3) Stewart's fourth, twenty-fifth, twenty-sixth, and thirtieth points, to the extent the general arguments in those points address the Justice of the Peace Court's judgment. We decide against Stewart as to: (1) Stewart's third, seventh, tenth, fifteenth, seventeenth, eighteenth, twentieth through twenty-third, and twenty-eighth points, which directly assert error in the County Court at Law's judgment; (2) Stewart's first, second, fourth, eighth, ninth, thirteenth, nineteenth, and twenty-fourth points, to the extent she complains about the County Court at Law's judgment; and (3) Stewart's generally argued fourth, twenty-fifth, twenty-sixth, and thirtieth points, which we addressed only as to potential error in the judgment of the County Court at Law.
The County Court at Law's judgment is affirmed.
ON MOTION FOR REHEARING SUPPLEMENTAL MEMORANDUM OPINION
On July 18, 2005, this Court issued its memorandum opinion in this case affirming the trial court's final judgment in Trammell Properties' forcible detainer action against Stewart. Stewart filed her motion for rehearing on August 1, 2005, asserting that: (1) she raised all three elements of the Craddock test in her brief; and (2) her arguments that the trial court lacked jurisdiction and there was no-evidence to support Trammell Properties' forcible detainer action were not merely part of her "meritorious defense," but separate points on appeal.
This supplemental memorandum opinion on motion for rehearing is issued in order to clarify our earlier memorandum opinion. We deny Stewart's motion for rehearing.
I. BASIS FOR STEWART'S MOTION FOR REHEARING
In our original memorandum opinion, we concluded, based on the record before us and the points and issues raised by Stewart in her brief on appeal, the trial court did not abuse its discretion when Stewart's motion for new trial was overruled by operation of law. In her motion for rehearing, Stewart claims she raised all three elements of the Craddock test in her brief. She also claims her arguments that the trial court lacked jurisdiction and there was no-evidence to support Trammell Properties' forcible detainer action were not merely part of her "meritorious defense," but separate points on appeal.
A. Stewart's Brief and the Record Supplied on Appeal
Stewart appears pro se, but we note that on all of the documents she filed with this Court she lists her Texas Bar Number. She is an attorney and, apparently, licensed to practice law in the State of Texas. On appeal, as at trial, any pro se appellant must properly present her case. Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.); Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied), cert. denied, 125 S.Ct. 928 (2005).
The Texas Rules of Appellate Procedure require an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h); Green, 152 S.W.3d at 841. Our original memorandum opinion described Stewart's issues set forth in her brief on appeal. Now, we again describe the points she raised in her brief on appeal in order to clarify our earlier memorandum opinion and to address her argument in her motion for rehearing.
In the issues presented section of her brief on appeal, under the heading "Appellants' Points of Error," Stewart denominates thirty points on appeal. Then, in the summary of the argument and argument and authorities sections of her brief on appeal, she condenses her thirty points into three broad and general issues. However, she provides us with no guidance as to which of the particular thirty points on appeal she is arguing in each of her three general issues, nor did she explicitly brief each of those thirty points. Accordingly, we addressed her points by interpreting them according to the discussions in the three broad issues she presented.
The record presented to us is limited. Stewart includes nine attachments in the appendix to her brief labeled with the letters A through H and one attachment labeled "Forcible Detainer Sample Forms TX." Many of these attachments in her appendix do not appear in the clerk's record. No reporter's record was filed. An appellate court cannot consider documents or hearings that are cited in the brief on appeal and attached as appendices if they are not formally included in the record on appeal. See Green, 152 S.W.3d at 841. Accordingly, we did not consider in our original memorandum opinion, and we will not consider in this supplemental memorandum opinion the documents attached to Stewart's brief on appeal that are not properly included in the appellate record or before this Court. Stewart's arguments in her brief on appeal are not clear. See Green, 152 S.W.3d at 841. We have little latitude on appeal and cannot remedy deficiencies in a litigant's brief or supply an adequate record. Green, 152 S.W.3d at 841; Strange, 126 S.W.3d at 678. We also have no duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred. Green, 152 S.W.3d at 841. Nevertheless, in our original memorandum opinion, we expressly considered each of Stewart's thirty points. See Tex.R.App.P. 38.9; Green, 152 S.W.3d at 841.
Stewart's attachment "A" contains a copy of §§ 24.001-011 of the Texas Property Code. Stewart's attachment "B" contains copies of her pleadings, which are included in the Clerk's Record. Stewart's attachment "C" contains documents filed with the Justice of the Peace Court, but only the following documents are included in the Clerk's Record:
1. Trammell Properties' "Complaint for Forcible Detainer" filed in the Justice of the Peace Court on January 12, 2004;
2. Stewart's "Financial Statement Declaration of Financial Inability" filed in the Justice of the Peace Court on January 22, 2004, and in the County Court at Law on February 26, 2004;
3. Stewart's "Pauper's Oath" filed in the Justice of the Peace Court on January 22, 2004, and in the County Court at Law on February 26, 2004;
4. Stewart's "Complaint for Re-Entry" filed in the Justice of the Peace Court on January 22, 2004, and in the County Court at Law on February 26, 2004;5
5 Stewart's "Complaint for Re-Entry" is a two-page document. The first page is a form and Stewart has handwritten information in the spaces provided. The second page has additional handwritten information covering the page in a kaleidoscope of sentences, ( i.e., the handwriting appears in all different directions, including upside down
5. Trammell Properties' "Motion to Contest Pauper's Affidavit" filed in the Justice of the Peace Court on February 2, 2004, and in the County Court at Law on February 26, 2004; and
6. Stewart's transmittal letter addressed to the Clerk of the Justice of the Peace Court dated January 30, 2004.
Also, Stewart's last attachment labeled "Forcible Detainer Sample Forms TX" contains copies of sample legal forms.
The Clerk's record is fifty-one pages and contains seventeen documents: (1) an index; (2) caption; (3) Stewart's Notice of Appeal; (4) Trammell Properties' Request for Documents in the Clerk's Record; (5) civil docket sheet; (6) Trammell Properties' Complaint for Forcible Detainer; (7) Stewart's Financial Statement Declaration of Financial Inability with Pauper's Oath; (8) Stewart's Complaint for Re-entry; (9) Trammell Properties' Motion to Contest Pauper's Affidavit; (10) Stewart's Original Answer and Trial Demand; (11) Trial Court's Final Judgment; (12) Affidavit of Ann K. Stewart; (13) Stewart's Motion to Vacate Judgment and Motion for New Trial; (14) Trammell Properties' letter to Judge Greenberg; and (15) Stewart's letter to the Clerk of the County Court at Law; (16) civil cost bill; and (17) Clerk's certificate.
B. Three Elements of Craddock Test
In her motion for rehearing, Stewart complains she "argue[d] all three elements required by Craddock in her Motion for New Trial and affidavit in support thereof . . ." However, in her brief on appeal, Stewart argues the trial court erred when it denied her motion for new trial because she established a meritorious defense. Stewart did not argue on appeal, as required by Craddock, that she established in her motion for new trial that: (1) her failure to appear was not intentional, or the result of conscious indifference, but was due to a mistake or an accident; and (2) her motion for new trial was filed at a time when the granting thereof would have occasioned no delay or otherwise worked an injury to Trammell Properties. See Director, State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 33 S.W.2d 124, 126 (1939). In her motion for rehearing, Stewart directs us generally to her motion for new trial and affidavit to support her claim that she had, in fact, argued all three Craddock elements to the County Court at Law. However, when she complains that she raised on appeal all three Craddock elements and that we erred in overlooking those arguments, she does not show us where those arguments are located in her brief on appeal. Even a liberal reading of her brief does not reveal the arguments she now asserts were before us.
We do not dispute Stewart's claim that she argued all three Craddock elements in her motion for new trial. In fact, we noted this fact in our original memorandum opinion. However, it is not enough for her to argue all three Craddock elements in her motion for new trial. She must also raise and address them on appeal. We will not raise points for an appellant. Because Stewart only raised on appeal the meritorious defense element of the Craddock test, instead of all three elements, we are not able to conclude the trial court abused its discretion when Stewart's motion for new trial was overruled by operation of law.
C. Separate Jurisdiction and No-evidence Issues
In her motion for rehearing, Stewart claims her jurisdiction and no-evidence issues were separate from and were not based on her argument that she raised a meritorious defense in her motion for new trial. However, in her brief on appeal, under the section heading "Summary of Appellant's Argument," as well as in her table of contents, she states:
Motion for New Trial-County Court Abused its Discretion by Denying Appellant's Motion for New Trial-Appellant's Meritorious Defense Is Based On Three Dispositive Issues-Lack Of Jurisdiction, No Evidence And Impossibility.
Also, in her brief on appeal, under the section heading "Summary of Appellant's Argument," Stewart states:
Literally, the issue on appeal is the denial of a new trial based on Appellant's " Craddock" Motion for New Trial as an abuse of the County Court's discretion. Despite timely filed sworn (and uncontroverted or challenged) motions and evidence and deliberate efforts by Appellant to get a timely ruling from the court, the Motions were overruled by operation of law and the court's plenary power expired without ruling [sic] by the court. Effectively, the issue to be decided by this appeal is the validity of the forcible detainer action in its entirety, including the impropriety evident throughout the proceedings. The merits of the forcible detainer are at issue on a new trial appeal because the meritorious defense must be proffered to satisfy the "Craddock" [sic] requirements for a new trial. [emphasis in orig.].
In our original opinion, we concluded Stewart's three broad issues were based on her claim that the trial court erred when her motion for new trial was overruled by operation of law. Our conclusion is supported by Stewart's brief on appeal. Nevertheless, we will address the jurisdiction and no-evidence claims she asserts in her motion for rehearing were overlooked. See Tex.R.App.P. 38.9.
III. JURISDICTION
In her motion for rehearing, Stewart claims her brief on appeal argues the Justice of the Peace Court and County Court at Law lacked jurisdiction to enter a default judgment against her because: (1) service of process was defective; (2) she filed a complaint for re-entry; and (3) Trammell Properties' complaint was defective. We agree with Stewart that one may properly raise the issue of jurisdiction for the first time on appeal. See State v. John R. Phenix Associates, Inc., 6 S.W.3d 288, 290 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (lack of subject matter jurisdiction is fundamental error which must be reviewed by appellate court any time it appears). However, we disagree that there is merit to that claim in this case.
Stewart also lists a fourth factor, there was no reporter's record of the default hearing and thus no evidence. However, this argument will be addressed with her no-evidence claims.
A. Jurisdiction for Forcible Detainer Cases
Jurisdiction of forcible detainer actions is expressly given to the justice court of the precinct where the property is located and, on appeal, to county courts for a trial de novo. See Tex. Prop. Code Ann. § 24.004 (Vernon 2000 Supp. 2004-05); Tex. Gov't Code Ann. § 27.031 (Vernon 2004); Tex. Civ. Prac. Rem. Code Ann. § 51.001 (Vernon 1997 Supp. 2004-05); Tex. R. Civ. P. 749; Rice v. Pinney, 51 S.W.3d 705, 708 (Tex.App.-Dallas 2001, no pet.). The appellate jurisdiction of a statutory county court is confined to the jurisdictional limits of the justice court, and the county court has no jurisdiction over an appeal unless the justice court had jurisdiction. Rice, 51 S.W.3d at 708; Standard Inv. Co. v. Dowdy, 122 S.W.2d 1107, 1109 (Tex.Civ.App.-Dallas 1938, writ dism'd w.o.j.). When an appeal from a justice court judgment is perfected in a county court, the judgment of the justice court is annulled. In re Garza, 990 S.W.2d 372, 374 (Tex.App.-Corpus Christi 1999, orig. proceeding); Sanchez v. Huntsville Independent School Dist., 844 S.W.2d 286, 289 (Tex.App.-Houston [1st Dist.] 1992, no writ); see Advance Imports, Inc. v. Gibson Prod. Co., Inc. of Sherman, 533 S.W.2d 168, 170 (Tex.Civ.App.-Dallas 1976, no writ). Therefore, the outcome of Stewart's jurisdiction claims in this case depends on the extent of the County Court at Law's appellate jurisdiction. See Rice, 51 S.W.3d at 708.
B. Stewart's Contentions as to Jurisdiction
Stewart's first argument appears to be that the Justice of the Peace Court and County Court at Law lacked jurisdiction because she was not properly served. However, the record shows that she filed an answer with the County Court at Law generally denying the allegations and requesting a trial. A defendant may waive service by voluntarily entering a general appearance, filing an answer, or invoking the trial court's jurisdiction. Tex. R. Civ. P. 121; Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998). Because Stewart filed an answer, she waived any alleged defect in service. The County Court at Law had jurisdiction. See Dawson-Austin, 968 S.W.2d at 322.
Second, Stewart appears to claim her complaint for re-entry functions as an answer to Trammell Properties' forcible detainer action and dissolves the Justice of the Peace Court's and County Court at Law's jurisdiction in a forcible detainer action. Further, she asserts that once the complaint for re-entry was filed, the courts below were prohibited from entering a no-answer default against her. In her brief on appeal, under the heading "Statement of the Case," Stewart states:
[Stewart] was inadvertently late the following morning but despite telephoning the [Justice of the Peace] court clerk (to inform the [Justice of the Peace] [C]ourt and the opposing counsel/party that [she] was late but en route [Stewart] arrived to find a no-answer default judgment had been entered and the Complaint for Re-Entry was not considered despite [her] open court request immediately following the default ruling in [her] absence.
The record before us is sparse. The clerk's record does not contain the Justice of the Peace Court's judgment and, therefore, on this record we cannot determine if the Justice of the Peace Court entered a no-answer default judgment against Stewart. However, the record reveals that the County Court at Law entered a default judgment against Stewart because she failed to appear for trial.
We are unclear how Stewart's complaint for a writ of re-entry, even if it constituted an answer, affects jurisdiction. See Tex. Prop. Code Ann. § 93.003 (Vernon Supp. 2004-05). In her brief on appeal, Stewart's cites Hughes v. Habitat Apartments, 860 S.W.2d 872 (Tex. 1993), and Smith v. Lippmann, 826 S.W.2d 137 (Tex. 1992) to support her jurisdictional argument. In Hughes, Hughes appealed a judgment against her in a forcible detainer action to the county court. See Hughes, 860 S.W.2d at 872. Hughes filed a pauper's affidavit with the county court, but failed to file a written answer. Id. The county court entered a default judgment against her. The Texas Supreme Court held that Hughes was entitled to notice of the hearing on Habitat Apartment's motion for default judgment. Id. at 873. In Lippmann, Smith sent the district clerk a letter stating he had received the citation, but did not file a formal answer. Lippmann, 826 S.W.2d 137. Lippmann filed a motion for a default judgment and, after a hearing, the trial court entered a default judgment. Id. The Texas Supreme Court held that Smith was entitled to notice of the hearing of Lippmann's motion for default judgment because although his letter was not in the standard form of an answer, it gave the court a timely response acknowledging receipt and acceptance of Lippmann's citation and petition. Id. at 138. These cases do not address the jurisdictional argument made by Stewart. The record reflects that after Stewart filed her petition for re-entry, the County Court at Law set the case for trial. She does not assert that she did not receive notice of that setting. Rather, she complains that the trial court proceeded with trial, entering a default judgment because she did not timely appear. We disagree that the propositions Stewart raises reflect that the jurisdiction of the courts below was dissolved or otherwise non-existent.
There is nothing in the record indicating that Stewart obtained a writ of re-entry.
Third, Stewart appears to claim the County Court at Law lacked jurisdiction because Trammell Properties complaint was defective. She claims that Trammell Properties' complaint does not specifically allege lawful written demand of the landlord for possession of the premises. When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (citing Peek v. Equipment Service Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex. 1989)). Unless a defendant objects to the alleged pleading defects, the plaintiff may proceed to trial, however defective its allegations. Peek, 779 S.W.2d at 805.
Trammell Properties' complaint for forcible detainer states:
[T]hat the tenant has forfeited his [sic] right to the premises described above and that the tenant is holding the same against the lawful written demand of the landlord for possession . . .
There is nothing in the record to show that Stewart filed special exceptions to Trammell Properties' complaint or otherwise objected to it. Because Trammell Properties' complaint for forcible detainer does not affirmatively demonstrate incurable defects in jurisdiction and Stewart failed to object, we cannot conclude that the County Court at Law lacked jurisdiction.
IV. NO-EVIDENCE
In her motion for rehearing, Stewart claims that the record is devoid of any evidence to support the trial court's default judgment or the damages awarded. She claims the default proceedings were not recorded by the court reporter and the absence of a reporter's record means there is no evidence that Trammell Properties presented a prima facie case to support the default judgment entered by the County Court at Law.
A post-answer default judgment cannot be entered on the pleadings. Sharif v. Par Tech, Inc., 135 S.W.3d 869, 873 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Rather, a plaintiff must offer evidence and prove his case as in a judgment on trial. Id. (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). If a post-answer default judgment is rendered after the presentation of evidence to the trial court and in the absence of the defendant and his attorney, the failure to have a court reporter make a record constitutes reversible error. Id.; Chase Bank v. Harris County Water Control Improvement Dist., 36 S.W.3d 654, 655 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Carstar Collision, Inc. v. Mercury Finance Co., 23 S.W.3d 368, 370 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). An appellate court is unable to determine if sufficient evidence was submitted to support a post-answer default judgment without a reporter's record. See Sharif, 135 S.W.3d at 873; Chase, 36 S.W.3d at 655-56; Carstar, 23 S.W.3d at 370.
If an appellant exercises due diligence and through no fault of her own is unable to obtain a proper record of the evidence introduced, a new trial may be required where the right to have the case reviewed on appeal can be preserved in no other way. Carstar, 23 S.W.3d at 370 (distinguishes case where record of hearing made and appellant simply failed to present it for appellate review). To show due diligence, an appellant should support her statement regarding the unavailability of the reporter's record of a post-answer default judgment hearing with one of the following: (1) a stipulation of the parties; (2) an affidavit of the court reporter stating he did not report any evidence taken at the hearing, and that to his knowledge, no record of the hearing exists; or (3) a certificate or affidavit from the trial judge stating that no court reporter was present or that plaintiff/appellee did not request a court reporter for transcription of the hearing. See generally, Minyard v. Southern Pipe Supply Co., Inc., 563 S.W.2d 332, 333 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e.) (affidavit of court reporter that he did not report any evidence and to his knowledge no record of hearing existed); In re K.B.A., 145 S.W.3d 685, 689 (Tex.App.-Fort Worth 2004, no pet.) (court reporter stated no recorded transcript could be found); Garcia v. Kelly, 565 S.W.2d 112, 113 (Tex.Civ.App.-Corpus Christi 1978, no writ) (trial judge's affidavit stated no court reporter was present and plaintiff did not request one); Parker v. Sabine Val. Lumber Co., Inc., 485 S.W.2d 853, 854 (Tex.Civ.App.-Fort Worth 1972, no writ) (affidavit of court reporter that matter not reported by him).
The County Court at Law's final judgment states:
On March 18, 2004, this case was called for trial before the Court. Notice of trial setting was sent by the Court Clerks to each party for a 9:00 a.m. trial. Plaintiff C.L. Trammell Properties, Inc., appeared by and through counsel and announced ready for trial. Defendant Ann Stewart failed to appear and wholly defaulted. No jury having been requested, the Court proceeded to hear evidence. After hearing the evidence and argument, the Court finds. . . . [emphasis added].
On July 22, 2004, Stewart filed her notice of appeal. One day earlier, Stewart filed a docketing statement with this Court, which left the portion of the form addressing the existence of a reporter's record and whether arrangements had been made for the payment of the reporter's record blank. The clerk's record shows that Stewart requested the reporter's record on August 4, 2004. See Tex.R.App.P. 34.6(b)(1) (at or before time for perfecting appeal, appellant must request in writing that reporter prepare reporter's record). No reporter's record was filed in this appeal. Stewart filed her brief on appeal without complaint that the reporter's record had not been filed. Rather, despite having already requested the reporter's record, Stewart argued in her brief that the default proceedings were not recorded by the court reporter and the absence of a reporter's record means there is no evidence to support the post-answer default judgment entered by the County Court at Law.
No stipulation, testimony, affidavit of the court reporter, or certificate or affidavit of the trial judge evidencing the unavailability of the reporter's record appears in the record on appeal. Stewart may not fail to exercise due diligence in obtaining the reporter's record of the post-answer default hearing, claim there is no evidence to support the default judgment entered against her, and rely on her own failure to exercise due diligence to obtain the reporter's record to support her claim. Accordingly, we cannot conclude that there was no evidence to support the post-answer default judgment entered against Stewart.
V. CONCLUSION
For the reasons stated in our original memorandum opinion and in this supplemental memorandum opinion on motion for rehearing, we conclude the trial court did not err when it entered a default judgment against her as a result of her failure to appear and it did not abuse its discretion when Stewart's motion for new trial was overruled by operation of law. We deny Stewart's motion for rehearing.