Opinion issued June 18, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00869-CV
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RAMESH KAPUR, Appellant
V.
CASSANDRA PLEASANT, Appellee
On Appeal from the County Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1013763
MEMORANDUM OPINION
A post-answer default judgment was entered against appellant, Ramesh
Kapur d/b/a AIC Management Company, who alleges he failed to appear for trial
because he did not receive notice of the trial setting. On appeal, Kapur urges this
court to reverse and remand for a new trial because the court reporter did not
furnish a reporter’s record. We reverse and remand.
Background
In November 2011, Cassandra Pleasant sued Kapur d/b/a AIC in justice
court in Harris County for breach of contract and unfair business practices. Kapur
filed a pro se answer. After an unsuccessful mediation, the court entered a $3,500
judgment in favor of Pleasant. Kapur appealed to the County Civil Court at Law
Number 2. In his filings in the justice court, Kapur listed his address as P.O. Box
635, Alief, Texas 77411. Kapur’s notice of appeal, however, stated: “The
Defendant is requesting to incorporate the change of address for all future
[correspondence] 2650 Fountain View Dr. #124, Houston, Texas 77057.” Kapur’s
appeal bond also reflected the Fountain View address.
The trial court set the case for trial on June 25, 2012, and directed Pleasant
to notify all attorneys and pro se parties of the trial setting in accordance with
Texas Rule of Civil Procedure 21a. The order for trial setting is contained in the
clerk’s record and lists Kapur’s address as the P.O. Box in Alief. Kapur did not
appear at trial and the trial court entered a default judgment against him for $4,000.
No reporter’s record was made of the post-answer default judgment proceeding.
Kapur filed a motion for new trial arguing that he failed to appear at trial because
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neither the county clerk nor Pleasant notified him of the trial setting in violation of
Rule 21a. The trial court denied the motion. Kapur appealed.
Lack of Reporter’s Record
In his second and third issues, Kapur argues that the evidence is insufficient
to support the $4,000 award and that he is entitled to a new trial because there was
no record made of the post-answer default judgment proceedings. The record on
appeal contains an information sheet from the official court reporter, filed with this
court, stating that there was no reporter’s record of these proceedings.
We treat this case as a post-answer default judgment case because, although
Kapur did not file an answer in county court, he was properly served with citation
and filed a written answer in the justice court. See Withrow v. Schou, 13 S.W.3d
37, 40 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“[U]pon trial de novo
in the county court on an action that originated in the justice court, the written
pleadings of record in the justice court will generally constitute an appearance by
the respective parties of record in the county court.”). A post-answer default
“constitutes neither an abandonment of defendant’s answer nor an implied
confession of any issues thus joined by the defendant’s answer.” Stoner v.
Thompson, 578 S.W.2d 679, 682 (Tex. 1979). In such a case, judgment may not
be entered on the pleadings; instead, the plaintiff must offer evidence and prove his
case as in a judgment upon a trial. Id.; see also Sharif v. Par Tech, Inc., 135
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S.W.3d 869, 873 (Tex. App.—Houston [1st Dist.] 2004, no pet.). “If an appellant
exercises due diligence and through no fault of his 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
Collision, Inc. v. Mercury Fin. Co., 23 S.W.3d 368, 370 (Tex. App.—Houston [1st
Dist.] 1999, pet. denied).
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. Sharif,
135 S.W.3d at 873; Chase Bank v. Harris Cnty. Water Control & Improvement
Dist., 36 S.W.3d 654, 655 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Carstar,
23 S.W.3d at 370. Such error is not harmless because, without a reporter’s record,
the appellate court is unable to determine if sufficient evidence was submitted to
support the judgment. Sharif, 135 S.W.3d at 873; Carstar, 23 S.W.3d at 370.
Because there was no reporter’s record of the post-answer default judgment,
we reverse and remand. See Vaughan v. Medina, No. 01-09-00885-CV, 2011 WL
1233556, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.)
(holding that, where record on appeal contained information sheet from court
reporter that no reporter’s record of proceeding was made, failure to have court
reporter make record in post-answer default judgment was reversible error); Best
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Buy RV, Inc. v. Galloway, No. 01-01-01110-CV, 2003 WL 302409, at *1 (Tex.
App.—Houston [1st Dist.] Feb. 13, 2003, no pet.) (mem. op.) (reversing and
remanding for new trial because there was no reporter’s record of post-answer
default judgment and court reporter’s affidavit stated that there was no reporter’s
record); Chase Bank, 36 S.W.3d at 656 (reversing and remanding where there was
no reporter’s record of post-answer default judgment); Carstar, 23 S.W.3d at 369–
70 (reversing for new trial because there was no reporter’s record of post-answer
default judgment hearing).
We sustain Kapur’s second and third issues. In light of this conclusion, we
need not consider the other issues presented by Kapur.
Conclusion
We reverse the default judgment entered by the trial court and remand for
further proceedings.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
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