Anthony Norman v. John Giraldo and Monica Liloy

Opinion issued June 5, 2014

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00334-CV
———————————
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

3
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

5
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

6
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).

7
 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.)

8
 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).

9
 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.

10