TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00637-CV
Roger Quannah Settler, Appellant
v.
The Brook at Travis Heights, Appellee
NO. 251,874, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
The Brook at Travis Heights ("the company") filed this forcible detainer action against Settler seeking unpaid rent and eviction of Settler from an apartment. In June 2000, after finding Settler due some offset to the rent claimed, the justice of the peace awarded the company $68.89 in unpaid rent plus possession of the apartment. Settler appealed to the county court at law for a trial de novo. Two months later, the county court, reciting that all parties appeared for trial, awarded the company possession of the premises and $1148.89 in unpaid rent, (1) $380 in late fees and month-to-month fees, and $1200 in attorney's fees. Settler filed a motion to set aside the judgment, contending that he did not receive notice of the trial setting in the county court at law and was thereby prevented from appearing and presenting evidence. This motion was overruled by operation of law.
We observe first that Settler's brief does not contain any reference to the record, in violation of the briefing rules. See Tex. R. App. P. 38.1(h). More importantly, although a list of cases appear at the beginning of his brief, his argument throughout is wholly unsupported by authority. In the absence of the citation of authority, Settler cannot show himself entitled to relief and we may affirm. See Harkins v. Dever Nursing Home, 999 S.W.2d 571, 573 (Tex. App.--Houston [14th Dist.] 1999, no pet.); Keever v. Finlan, 988 S.W.2d 300, 314 (Tex. App.--Dallas 1999, pet. dism'd). In the interest of justice, we will attempt to address his complaints to the extent we discern them.
By his first four points of error, Settler complains about actions taken by the justice court. Two concern actions taken to reach the original judgment. Two others concern post-trial activity.
By points one and three, Settler complains that the justice court erred by including certain amounts in its calculation of rent owed and by excluding evidence by abruptly ending the trial for a social engagement. Because the county-court-at-law judgment following the trial de novo superseded the justice-court judgment, no errors in the conduct of the justice-court trial or its calculation of the judgment are harmful to Settler.
By point two, Settler contends that the justice court erred by not dismissing the petition for eviction after he paid the judgment amount. Because Settler does not point to a motion in the record in which he requested this relief from either the justice court or the county court at law, the complaint is not preserved. See Tex. R. App. P. 33.1(a)(1). Nor does Settler cite any authority for the proposition that a justice court must automatically rescind its eviction decree when, after rendition of the eviction decree, the tenant pays the amount awarded in the judgment.
By point four, Settler contends that the $200 appeal bond the justice court required was excessive and violated procedural rules. Settler does not cite, nor do we find, a statute or rule limiting the bond to less than $200. See Tex. R. Civ. P. 749, 752. Courts generally have discretion in setting bond amounts. See Northwest Bank v. Garrison, 874 S.W.2d 278, 281 (Tex. App.--Houston [1st Dist] 1994, no writ); TransAmerican Natural Gas Corp. v. Finkelstein, 905 S.W.2d 412, 414 (Tex. App.--San Antonio 1995, writ dism'd). A court abuses its discretion when it fails to reach the only reasonable decision. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Settler has not explained why the $200 bond was excessive, unreasonable, or an abuse of discretion. We conclude it was none of these.
We overrule points one through four concerning actions taken by the justice court. Settler's remaining six points of error address occurrences in the county court at law.
By point six, Settler contends that the county court at law erred by failing to require the company's attorney to notify Settler that the attorney was representing the company or to submit copies of the company's trial documents to Settler. The record does not show that Settler presented this complaint to the county court at law; it is therefore waived. See Tex. R. App. P. 33.1(a). Nor does he show how these failures harmed him. We overrule point six.
Settler raises two points of error centered on the absence of notice to him of the trial setting. By point five, he contends that the court erred because the county clerk failed to inform him of the trial setting. By point seven, he contends that the court erred in holding the trial de novo without notice to him. In these points, he claims that the county court at law should have granted him a new trial because his failure to appear was due to the lack of notice which was not his fault.
A defendant who has made an appearance in a cause is entitled to notice of the trial setting as a matter of due process under the Fourteenth Amendment to the federal constitution. LBL Oil Co. v. Int'l Power Serv., 777 S.W.2d 390, 390-91 (Tex. 1989). A defendant who does not receive notice of a default judgment proceeding is deprived of due process. Id. A notice of trial setting ordinarily does not appear in the clerk's record and need not affirmatively appear there. Prihoda v. Marek, 797 S.W.2d 170, 171 (Tex. App.--Corpus Christi 1990, writ denied); see also Garcia v. Arbor Green Owners Ass'n, Inc., 838 S.W.2d 800, 803 (Tex. App.--Houston [1st Dist.] 1992, writ denied). Rather, the law presumes that a trial court will hear a case only after proper notice to the parties. To rebut this presumption, appellant has the burden to show affirmatively a lack of notice by affidavit or other competent evidence. Delgado v. Hernandez, 951 S.W.2d 97, 99 (Tex. App.--Corpus Christi 1997, no writ); Jones v. Texas Dep't of Pub. Safety, 803 S.W.2d 760, 761 (Tex. App.--Houston [14th Dist.] 1991, no writ). This burden is not discharged by mere allegations in a motion for new trial, unsupported by affidavits or other competent evidence, that proper notice was not received. Hanners v. State Bar of Texas, 860 S.W.2d 903, 908 (Tex. App.--Dallas 1993, no writ); Jones, 803 S.W.2d at 761.
Settler's motion to set aside the judgment is not supported by evidence. The motion is not sworn and there is no affidavit attached. The record contains no testimony or court documentation showing that notice either was sent to an incorrect address or not sent at all. We review the trial court's decision to overrule a new-trial motion for abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The record does not affirmatively reflect a lack of notice and does not show an abuse of discretion in denying a new trial. We overrule points five and seven.
By two points, Settler complains about the county court at law's consideration of evidence in the trial. By point eight, he contends that the county court reversed the justice court's award of offset for overpaid rents without regard for and in violation of evidentiary, discovery, and procedural rules. By point nine, Settler contends that the company, through its agent, Mario Vasquez, presented forged documents and perjured testimony in support of its case. The county court was required to conduct a trial de novo, not an appellate review of the justice court's judgment; it therefore did not "reverse" the justice court. Further, as noted above, the difference between the awards of unpaid rent in the two judgments is equal to two months' rent that accrued in the two months between the judgments. The evidence presented in the justice court was not before the county court unless presented there anew. No violation of rules is apparent from the record. Likewise, the asserted forgeries and perjuries by Vasquez are not apparent from the record of the county court at law. We overrule points eight and nine.
By point ten, Settler contends that the county court at law erred by not ruling on his motion for new trial. The rules of procedure clearly anticipate that courts need not expressly overrule motions for new trial; Texas Rule of Civil Procedure 329b(c) states that if the court does not rule in writing on a motion for new trial within seventy-five days of its filing, "it shall be considered overruled by operation of law on expiration of that period." The county court at law did not err by not making a written ruling on Settler's motion. We overrule point ten.
Having found no reversible error presented, we affirm the judgment.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Affirmed
Filed: July 26, 2001
Do Not Publish
1. The amount of unpaid rent awarded in August by the county court equals the $68.89 the justice court awarded in June plus two months' rental at the $540 monthly rate.
setting as a matter of due process under the Fourteenth Amendment to the federal constitution. LBL Oil Co. v. Int'l Power Serv., 777 S.W.2d 390, 390-91 (Tex. 1989). A defendant who does not receive notice of a default judgment proceeding is deprived of due process. Id. A notice of trial setting ordinarily does not appear in the clerk's record and need not affirmatively appear there. Prihoda v. Marek, 797 S.W.2d 170, 171 (Tex. App.--Corpus Christi 1990, writ denied); see also Garcia v. Arbor Green Owners Ass'n, Inc., 838 S.W.2d 800, 803 (Tex. App.--Houston [1st Dist.] 1992, writ denied). Rather, the law presumes that a trial court will hear a case only after proper notice to the parties. To rebut this presumption, appellant has the burden to show affirmatively a lack of notice by affidavit or other competent evidence. Delgado v. Hernandez, 951 S.W.2d 97, 99 (Tex. App.--Corpus Christi 1997, no writ); Jones v. Texas Dep't of Pub. Safety, 803 S.W.2d 760, 761 (Tex. App.--Houston [14th Dist.] 1991, no writ). This burden is not discharged by mere allegations in a motion for new trial, unsupported by affidavits or other competent evidence, that proper notice was not received. Hanners v. State Bar of Texas, 860 S.W.2d 903, 908 (Tex. App.--Dallas 1993, no writ); Jones, 803 S.W.2d at 761.
Settler's motion to set aside the judgment is not supported by evidence. The motion is not sworn and there is no affidavit attached. The record contains no testimony or court documentation showing that notice either was sent to an incorrect address or not sent at all. We review the trial court's decision to overrule a new-trial motion for abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). The record does not affirmatively reflect a lack of notice and does not show an abuse of discretion in denying a new trial. We overrule points five and seven.
By two points, Settler complains about the county court at law's consideration of evidence in the trial. By point eight, he contends that the county court reversed the justice court's award of offset for overpaid rents without regard for and in violation of evidentiary, discovery, and procedural rules. By point nine, Settler contends that the company, through its agent, Mario Vasquez, presented forged documents and perjured testimony in support of its case. The county court was required to conduct a trial de novo, not an appellate review of the justice court's judgment; it therefore did not "reverse" the justice court. Further, as noted above, the difference between