Opinion issued July 3, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00330-CV
R.K. DHINGRA, INDIVIDUALLY, TRUSTEE AND D/B/A/ SHIVA INVESTMENT GROUP; S. GOSWAMI, INDIVIDUALLY AND D/B/A/ SHIVA INVESTMENT GROUP; S. KHARBANDA, INDIVIDUALLY AND D/B/A/ SHIVA INVESTMENT GROUP; B.K. DHINGRA, INDIVIDUALLY AND D/B/A SHIVA INVESTMENT GROUP, AND R.D. DHINGRA, INDIVIDUALLY AND D/B/A SHIVA INVESTMENT GROUP AND COUNTER PLAINTIFF, SUSAN PRATHER, Appellants
V.
CHARTERWOOD COMMUNITY IMPROVEMENT ASSOCIATION, Appellee
On Appeal from County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 730,126
MEMORANDUM OPINION
This is an appeal from a summary judgment rendered in favor of appellee, Charterwood Community Improvement Association. Appellants R.K. Dhingra, S. Goswami, S. Kharbanda, B.K. Dhingra, R.D. Dhingra, Shiva Investment Group (the Dhingra appellants), and Susan Prather complain in four issues that the trial court erred in (1) denying their motion for rehearing and for a new trial because they did not receive notice of the hearing on the partial summary judgment that resulted in a final judgment, (2) granting the motion for summary judgment when they were not served properly with the motion and did not receive notice of the hearing or submission of the motion, and (3) granting the appellee’s motion for summary judgment because genuine issues of material fact existed. We affirm.
Facts and Procedural Background
The Dhingra appellants own a home in the Charterwood subdivision that they rent to Susan Prather. Appellants were delinquent in paying the homeowner’s association dues. After fruitless efforts to collect the dues, Charterwood filed its original pleadings on February 23, 2000. The pleadings stated that appellants had not paid and refused to pay total assessments of $3,947.30, plus charges, interest, and attorney’s fees.
R.K. Dhingra responded pro se on his own behalf, generally denying all of Charterwood’s contentions. He claimed that Charterwood had breached a duty or caused damage or loss, and he requested that the cause of action be converted to a class action lawsuit. R.K. Dhingra also filed a motion contesting the service of Charterwood’s petition on S. Goswami, S. Kharbanda, B.K. Dhingra, R.D. Dhingra, and Shiva Investment Group.
When appellants S. Goswami, S. Kharbanda, B.K. Dhingra, R.D. Dhingra, and Shiva Investment Group did not file answers to the petition, Charterwood filed a motion for partial default judgment against these appellants on September 1, 2000. R.K. Dhingra filed a response to Charterwood’s motion for partial default judgment, again alleging that the other defendants had not been properly served.
On October 4, 2000, the trial court granted the partial default judgment against S. Goswami, S. Kharbanda, B.K. Dhingra, R.D. Dhingra, and Shiva Investment Group. Damages of $4,553.75, were awarded to Charterwood, and an order of sale was issued to seize and sell the property that appellants jointly owned.
Without specifying a basis for her claim, Prather filed a plea in intervention requesting actual damages of $108,000 and exemplary damages of $1,000,000. She also contended that the subject of the pending lawsuit, the late payments, was in “serious dispute.” R.K. Dhingra filed several counter-claims against Charterwood, but the trial court rendered a take nothing summary judgment in favor of Charterwood regarding the counter-claims.
In August 2001, Charterwood filed traditional and no-evidence motions for summary judgment and a motion to strike Prather’s plea in intervention. Charterwood contended that Prather had pleaded herself out of the jurisdictional limits of the County Court and that she had no standing to participate in the lawsuit.
On September 12, 2001, exactly 21 days after the filing of the third motion for summary judgment and the motion to strike Prather, the trial court granted Charterwood’s motion for summary judgment against R.K. Dhingra and made the interlocutory default judgments against S. Goswami, S. Kharbanda, B.K. Dhingra, R.D. Dhingra, and Shiva Investment Group final. In a separate judgment, the trial court granted Charterwood’s motion to strike Prather’s plea in intervention and granted its motion for partial summary judgment against Prather.
R.K. Dhingra filed a motion for new trial. Contained within this motion for new trial was a notice of appeal. Prather and B.K. Dhingra filed separate signature pages that were attached to the motion for new trial. All three contended that they did not receive notice of the hearing concerning the motions that resulted in the final judgment.
As a threshold matter, we note that appellants S. Goswami, S. Kharbanda, R.D. Dhingra, and Shiva Investment Group did not file a notice of appeal within 30 days after final judgment. Accordingly, these defendants have failed to perfect their appeal, thereby failing to invoke our jurisdiction. Tex. R. App. P. 26.1. In addition, appellants do not complain of the default judgment entered against B.K. Dhingra. Therefore, no issue for our review regarding B.K. Dhingra has been raised.
DiscussionProper Service and Notice
In their first and second issues, R.K. Dhingra and Prather argue that the trial court erred in denying their motion for new trial and in granting the motions for summary judgment because they were not properly served with the motions and they did not receive notice of the hearings or submissions of those motions.
We review the denial of a motion for new trial under an abuse of discretion standard. Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988). A trial court abuses its discretion when it acts unreasonably or without regard for any guiding legal principles. Rodriguez v. United Van Lines, Inc., 21 S.W.3d 382, 384 (Tex. App.—San Antonio 2000, pet. denied).
The certificate of service filed with the trial court states that both motions, the motion for summary judgment and the motion to strike Prather’s plea in intervention, were hand delivered to R.K. Dhingra and Prather. At that time, they were the only parties whose claims had not been disposed of. The motions were sent to the address that Prather gave in her plea in intervention. Furthermore, R.K. Dhingra admitted that he received the motions. Therefore, the motions were properly served on them.
We assume, without deciding, that they did not receive notice of the hearings. However, they have failed to preserve error by failing to request a hearing on their motion for new trial in order to present evidence of lack of notice and to obtain a ruling. See Rios v. Texas Bank, 948 S.W.2d 30, 33 n.4 (Tex. App.—Houston [14th Dist.] 1997, no writ); see also Wilson v. General Motors Acceptance Corp., 897 S.W.2d 818, 820-21 (Tex. App.—Houston [1st Dist.] 1994, no writ). R.K. Dhingra and Prather have waived any error. Furthermore, the trial court did not abuse its discretion by overruling their motion for new trial by operation of law where the record fails to show any attempt by R.K. Dhingra or Prather to obtain a timely hearing on that motion. See Fluty v. Simmons Co., 835 S.W.2d 664, 668 (Tex. App.—Dallas 1992, no writ).
We overrule R.K. Dhingra’s and Prather’s first and second issues.
Genuine Issues of Material Fact
In his third issue, R.K. Dhingra argues that the summary judgment was improperly rendered in favor of Charterwood because a genuine issue of material fact existed as to whether he owed the debt and, if so, how much he owed.
When a plaintiff moves for summary judgment, it must show that it is entitled to prevail on each element of its cause of action. Ortega-Carter v. Am. Int’l Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.—Dallas 1992, writ denied). The plaintiff meets this burden if it produces evidence that would be sufficient to support an instructed verdict at trial. Id. Once the plaintiff establishes its right to summary judgment as a matter of law, the burden then shifts to the defendant as nonmovant to present evidence that raises a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). In reviewing a summary judgment, we accept as true all evidence supporting the nonmovant. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). All inferences are indulged in favor of the nonmovant, and all doubts are resolved in its favor. Id.
Charterwood provided sworn affidavits and verified proof of the debt owed by R.K. Dhingra. R.K. Dhingra failed to produce any evidence to raise a genuine issue of material fact. There was no evidence in the record provided by the nonmovant that could have been accepted as true. Therefore, no issue of material fact was raised as to whether R.K. Dhingra or Prather owed the debt and, if so, how much they owed.
In his fourth issue, R.K. Dhingra argues that the summary judgment was improperly rendered in favor of Charterwood because a genuine issue of material fact existed as to whether Charterwood had breached a settlement agreement. We interpret this issue as an assertion on appeal that R.K. Dhingra had a valid affirmative defense of breach of a settlement agreement.
If the party opposing a summary judgment relies on an affirmative defense, he must first plead that affirmative defense below; he must then come forward with summary judgment evidence sufficient to raise an issue of material fact on each element of the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). The record shows that R.K. Dhingra did not properly plead or provide evidence of a settlement agreement and did not respond to the motion for summary judgment; therefore, no issue of fact was raised on the alleged affirmative defense of breach of a settlement agreement.
We overrule R.K. Dhingra’s third and fourth issues.
Conclusion
We affirm the judgment of the trial court. All pending motions are denied as moot.
Evelyn V. Keyes
Justice
Panel consists of Justices Hedges, Nuchia, and Keyes.