Opinion issued March 29, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00945-CV
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george onwubuche, Appellant
V.
wole olowolayemo, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 969934
MEMORANDUM OPINION
George Onwubuche appeals from a default judgment entered against him on his appeal to the county court at law from a justice court’s judgment against him for unpaid rents and eviction. In six issues, Onwubuche complains about the correctness of the county court’s judgment, entered after a bench trial at which Onwubuche failed to appear. We affirm.
Background
Wole Olowolayemo filed a forcible detainer action against Onwubuche in justice court, asserting that Onwubuche had defaulted on his lease by failing to make rent payments and seeking eviction. After a bench trial in which both Olowolayemo and Onwubuche appeared, the justice court entered a judgment in favor of Olowolayemo, awarding him possession of the premises, $2,550 in delinquent rent, and costs. See Tex. R. Civ. P. 748 (providing that court may award the prevailing party “possession of the premises, costs, and damages”). In the event of an appeal by pauper’s affidavit, the justice court set the amount of monthly rent that Onwubuche had to pay into the registry of the court during the pendency of an appeal at $1,275 per rental period. See Tex. R. Civ. P. 749a (providing procedure for appeal to county court by pauper’s affidavit); Tex. R. Civ. P. 749b (providing that party appealing justice court’s eviction judgment to county court must pay one rental period’s rent into court’s registry within five days of filing pauper’s affidavit).
By pauper’s affidavit, Onwubuche appealed the justice court’s judgment to the county court at law, for trial de novo. See Tex. R. Civ. P. 574b, 749. But he failed to appear for trial in the county court. After a bench trial, the county court entered a post-answer default judgment in favor of Olowolayemo, awarding him possession of the premises and $3,825 in rental payments ($2,550 in delinquent rent at the time of trial in the justice court plus $1,275 for the first rental period during the pendency of the appeal, an amount equal to three months’ rent). Onwubuche did not file a motion for new trial in the county court at law. He now appeals from the county court’s judgment against him.
Default Judgment
A. The Craddock test for setting aside a default judgment
The Texas Supreme Court articulated the standard for setting aside a default judgment in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). This test governs post-answer default judgments as well as no-answer default judgments. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (per curiam); Lopez v. Lopez, 757 S.W.2d 721, 722 (Tex. 1988) (per curiam). Under the Craddock test, a default judgment should be vacated and a new trial granted when the defaulting party establishes: (1) the failure to appear was not intentional or the result of conscious indifference, but was the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no delay or otherwise injure the party who obtained the default judgment. Craddock, 133 S.W.2d at 126; see also Dolgencorp of Tex., 288 S.W.3d at 926. When a defendant did not receive actual or constructive notice of trial, however, due process alleviates the party’s burden of proving the second and third prongs of the Craddock test. See Lopez, 757 S.W.2d at 722−23; In re Marriage of Parker, 20 S.W.3d 812, 817 (Tex. App.—Texarkana 2000, no pet.).
Because the defaulting party has the burden to show that the elements of the Craddock test are satisfied, or that the first element of the Craddock test is satisfied and he did not receive notice of the trial setting, the defaulting party must put forward any necessary evidence on these issues; typically a motion for new trial is the vehicle for offering such evidence into the record. See Marrot Commc’ns, Inc. v. Town & Country P’ship, 227 S.W.3d 372, 379 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (noting that motion for new trial allows parties to introduce evidence to demonstrate satisfaction of Craddock elements). A motion for new trial is necessary to preserve a complaint on appeal of a trial court’s failure to set aside a default judgment. Tex. R. Civ. P. 324; Massey v. Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).
Onwubuche did not file a motion for new trial, nor did he attempt to put any evidence in the record through another means. He did not introduce any evidence into the record at trial or in post-judgment filings. He therefore cannot prevail on any issues that require extrinsic evidence. See Tex. R. Civ. P. 324; Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (citing Rule 324 for proposition that motion to set aside default judgment is complaint on which evidence must be heard); see also Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 n.4 (Tex. App.—Austin 2004, no pet.) (stating that failure to file motion for new trial pursuant to Rule 324(b) does not waive error on which no evidence need be heard).
Onwubuche does not challenge
service of process, nor does he assert that he did not receive adequate notice
of the trial setting. Rather,
he asserts that he was “five minutes late” for the trial “due to a medical
emergency.” He does not offer any explanation of what the medical emergency was,
and there is no evidence in the record supporting his contention. Because there
is no evidence to support Onwubuche’s statement that his failure to appear for
trial was the result of a medical emergency or that he was only slightly tardy
for his trial setting, we hold that he has not satisfied the first prong of the
Craddock test. See Craddock, 133 S.W.2d at 126; see also Dolgencorp of Tex.,
288 S.W.3d at 926; see also Smith v. I-30 Bus. Park, Ltd.,
2010 WL 5061003, at *4 (Tex. App.—Texarkana Dec. 1, 2010, no pet.) (mem. op.)
(holding that appellant did not satisfy Craddock
test with “notice to court” that he was “coming down with the flu” when there
was no other evidence of illness and he failed to file reporter’s record). Because Onwubuche cannot satisfy the
first prong of the Craddock test, we
may not set aside the county court at law’s default judgment against him on the
basis of the Craddock test.
B. Legal sufficiency of the evidence
A post-answer default judgment constitutes neither an abandonment of the defendant’s answer nor an implied confession of any issues joined by the defendant’s answer. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Naan Props., LLC v. Affordable Power, LP, No. 01-11-00027-CV, 2012 WL 114201, at *4 (Tex. App.—Houston [1st Dist.] Jan. 12, 2012, no. pet. h.) (mem. op.). Judgment cannot be entered on the pleadings; instead, the party seeking judgment must offer evidence and prove his case. See Stoner, 578 S.W.2d at 682; Naan Props., 2012 WL 114201, at *4. A party against whom a post-answer default judgment has been granted may challenge the legal sufficiency of the evidence to support the judgment on appeal. See Naan Props., 2012 WL 114201, at *4 (stating that review is limited to legal sufficiency of evidence) (citing Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 389 n.9 (Tex. App.—Houston [14th Dist.] 2007, no pet .)).
Onwubuche challenges the trial court’s default judgment on several grounds that pertain to issues of fact. He asserts that (1) the amount of the judgment purportedly fails to consider the $1,275 Onwubuche paid into the registry of the court;[1] (2) Olowolayemo did not give Onwubuche notice of eviction prior to filing the original eviction suit; (3) the “late fee charge” of $2525 is unreasonable; (4) eviction was not appropriate because the lease contemplated acceptance of late rents with payment of a late fee; and (5) Olowolayemo failed to repair a faulty heating and cooling unit. Although Onwubuche does not identify his arguments as such, we will treat them broadly to include challenges to the legal sufficiency of the evidence. See Massey v. Massey, No. 01-02-00196-CV, 2003 WL 21665612, at *2 (Tex. App.—Houston [1st Dist.] July 17, 2003, pet. denied) (mem. op.) (noting that courts read pro se briefs broadly but may not apply a lesser legal standard).
Onwubuche did not file a reporter’s record as part of his record on appeal. We therefore must presume that the reporter’s record contains evidence to support the trial court’s rulings on all issues of fact. See Smith, 2010 WL 5061003, at *1, *2 (noting in appeal from default eviction and rent judgment at county court that appellate court must presume that missing reporter’s record would contain evidence to support trial court’s rulings); In re C.K.C., No. 12-10-00366-CV, 2011 WL 7099714, at *2 (Tex. App.—Tyler Dec. 30, 2011, no pet.) (mem. op.) (“When no reporter’s record is filed, we must presume the missing evidence supports the trial court’s ruling.”) (citing Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998)); Brazle v. Meadows on the Mews Owners Ass’n, No. 14-10-01016-CV, 2011 WL 6141587, at *1 (Tex. App.—Houston [14th Dist.] Dec. 8, 2011, no pet.) (mem. op.) (“Appellant failed to file a reporter’s record from the trial de novo in the county court. Unless an appellant arranges for the filing of a complete reporter’s record (or partial reporter’s record and accompanying statement of issues), we must presume that the proceedings support the trial court’s judgment.”) (citing Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002)). Onwubuche’s brief contains no citations to the appellate record, and we have found no evidence in the record supporting any of his factual assertions. [2]
In light of the presumption in favor of the trial court’s factual findings and the complete absence of any evidence supporting Onwubuche’s allegations, Onwubuche cannot prevail on his challenges to the trial court’s findings. We overrule Onwubuche’s first, second, third, fourth, fifth, and sixth issues on appeal.
Conclusion
We affirm the trial court’s judgment.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
[1] Onwubuche’s first and fifth issues relate to this contention.
[2] Onwubuche’s original appellant’s brief contained no certificate of service, no citations to legal authority, and evidentiary citations only to “exhibits” not included in the appellate record. This Court struck Onwubuche’s original brief, directed him to the relevant Rules of Appellate Procedure, and allowed him additional time to file a brief containing a certificate of service and citations to legal authority and the appellate record when appropriate. Onwubuche subsequently filed another appellant’s brief, which contains a certificate of service and citations to legal authorities but no references to the appellate record.