ACCEPTED
12-15-00134-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/17/2015 2:24:57 PM
Pam Estes
CLERK
NO. 12-15-00134-CV
RECEIVED IN
IN THE COURT OF APPEALS 12th COURT OF APPEALS
TYLER, TEXAS
12TH DISTRICT 9/17/2015 2:24:57 PM
PAM ESTES
TYLER, TEXAS Clerk
JOHNNY PEEVY
Appellant
VS. 9/17/2015
ROY GENE BUTLER
Appellee
ON APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT OF
SMITH COUNTY, TEXAS, TRIAL COURT NO. 14-1354-C
BRIEF OF APPELLANT
JOHN F. BERRY
State Bar No. 02236650
BRIAN E. RICHARDSON
State Bar No. 24068651
JOHN F. BERRY, P.C.
100 Independence Place, Suite 400
Tyler, Texas 75703-1384
(903) 561-4200
(903) 561-8922 (Fax)
jfberry@suddenlinkmail.com
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s final
judgment, as well as the names and addresses of all trial and appellate counsel.
PARTIES: COUNSEL:
Plaintiff:
Roy Gene Butler Ronnie Horsley
1909 N. 24th West Ave. 231 South College
Tulsa, Oklahoma 74127 Tyler, Texas 75702
Stephen Hubbard
605 S. Broadway
Tyler, Texas 75701
Defendant:
Johnny Peevy John F. Berry
11669 E. Montana Place 100 Independence Place
Aurora, Colorado 80012 Suite 400
Tyler, Texas 75703
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASE 1
ISSUES PRESENTED 1
STATEMENT OF FACTS 2
SUMMARY OF THE ARGUMENT 3
ARGUMENT 4
CONCLUSION 9
PRAYER 9
APPENDIX 12
A. JUDGMENT 13
B. SECTION 37, TEX. CIV. PRAC. & REM.S CODE 16
C. SECTION 304.003, TEXAS FINANCE CODE 22
D. RULE 26.1, TEXAS RULES OF CIVIL PROCEDURE 24
E. RULE 30, TEXAS RULES OF APPELLATE PROCEDURE 26
F. RULE 243, TEXAS RULES OF CIVIL PROCEDURE 27
G. TEXAS CREDIT LETTER 28
ii
INDEX OF AUTHORITIES
Statutes
Tex. Civ. Prac. & Rem. Code §37 _________________________________ 1, 6
Tex. Fin. Code §304.003 ____________________________________ 2, 3, 8, 9
Rules
Tex. R. App. P. 26.1 ___________________________________________ 4, 5
Tex. R. App. P. 30 ______________________________________________ 4
Tex. R. Civ. P. 243 ______________________________________________ 6
Cases
Vazquez v. Vazquez,
292 S.W.3d 80 (Tex. App.—Houston [14th Dist.] 2007, no pet.) _________ 4
Argyle Mech., Inc. v. Unigus Steel, Inc.,
156 S.W.3d 685 (Tex. App.—Dallas 2005, no pet.) __________________ 5, 6
Holt Atherton Indus., Inc. v. Heine,
835 S.W.2d 80 (Tex. 1992) _____________________________________ 5, 6
Arenivar v. Providian Nat'l Bank,
23 S.W.3d 496 (Tex. App.—Amarillo 2000, no pet.) _________________ 5, 6
First Nat'l Bank v. Shockley,
iii
663 S.W.2d 685 (Tex. App.—Corpus Christi 1983, no writ) _____________ 6
Dawson v. Briggs,
107 S.W.3d 739 (Tex. App.—Fort Worth 2003, no pet.) _______________ 6
Morgan v. Compugraphic Corp.,
675 S.W.2d 729 (Tex. 1984) ______________________________________ 6
iv
STATEMENT OF THE CASE
Appellee, Roy Gene Butler (“Butler”) sued Appellant, Johnny Peevy
(“Peevy”) in an action to quiet title on real property and requested a declaratory
judgment pursuant to the Texas Civil Practices and Remedies Code §37.
Butler filed his Original Petition on May 21, 2014 (Clerk’s Record 1-4).
Appellant was served the Original Petition on July 11, 2014 (Clerk’s Record 5).
The Motion for Default Judgment was filed on November 13, 2014 (Clerk’s
Record 6-12). The Trial Court entered the Default Judgment on November 21,
2014 (Clerk’s Record 13-15) without holding a hearing (Clerk’s Record 34).
The Default Judgment contained an award of attorney’s fees in the amount of
$7,000.00, post-judgment interest of ten percent (10%) per annum, and costs of
court. Appellant filed his Notice of Restricted Appeal within six months of the
entry of the Default Judgment and accordingly, perfected this appeal.
ISSUES PRESENTED
Issue No. 1: Whether the Default Judgment entered in favor of Butler against
Peevy should be reversed and remanded for a new trial with regard to the
award of attorney’s fees due to the record reflecting no evidence as to the
amount of reasonable and necessary attorney’s fees.
Issue No. 2: Whether the Default Judgment entered in favor of Butler against
Peevy should be reversed and rendered with regard to the award of post-
1
judgment interest at a rate of ten percent (10%) per annum and revised to five
percent (5%) per annum.
STATEMENT OF FACTS
Peevy was the victim of a Default Judgment taken by Butler. Butler filed
his Original Petition against Peevy on May 21, 2014 (Clerk’s Record 1-4),
upon which Butler’s Default Judgment is based. The Default Judgment was
signed on November 21, 2014 (Clerk’s Record 13-15). The Default Judgment
contained an award of attorney’s fees in the amount of $7,000.00, post-
judgment interest of ten percent (10%) per annum, and costs of court. The
Default Judgment states “At the hearing on this cause…” (Clerk’s Record 13)
which would indicate that a hearing was held. However, the Court never
conducted an evidentiary hearing to receive evidence of reasonable and
necessary attorney’s fees. The Docket Sheet (Clerk’s Record 34) does not note
that a hearing was held and does not identify a court reporter. In fact, no
hearing was held and no evidence presented to the Trial Court to support the
judgment for attorney’s fees.
Secondly, the award of post-judgment interest at the rate of ten percent
(10%) interest per annum is double the correct interest rate of five percent (5%)
per annum pursuant to a correct application of Tex. Fin. Code §304.003 for the
time the Default Judgment was entered. Peevy filed his notice of restricted
2
appeal within the six-month deadline (Clerk’s Record 19-20), bringing the
Default Judgment into review by this Court. This being a default judgment,
Peevy did not participate at the hearing (which never took place), and the
failure of the Docket Sheet (Clerk’s Record 34) to note the identity of the Court
Reporter or the existence of a hearing establishes the absence of a hearing on
the face of the record.
SUMMARY OF THE ARGUMENT
The Trial Court erroneously granted a default judgment in favor of
Butler against Peevy for attorney’s fees without conducting an evidentiary
hearing to determine the amount of reasonable and necessary attorney fees.
Reasonable and necessary attorney’s fees are unliquidated damages, and a no-
answer default judgment still requires a judge to receive evidence on the
amount of unliquidated damages before they can be awarded. When a no
evidence point is sustained as to unliquidated damages which results from a no-
answer default, the appropriate disposition is to remand for a new trial on the
issue of the unliquidated damages.
Secondly, the trial court erroneously granted an award of post-judgment
interest at the rate of ten percent (10%) per annum. A correct application of
Tex. Fin. Code §304.003 for November 21, 2014, which is the entry date of the
Default Judgment, is five percent (5%). Tex. Fin. Code §304.003(c)(2) should
3
have been applied to the amount of the interest charged because on November
21, 2014, the prime rate as published by the Board of Governors of the Federal
Reserve System was less than five percent (5%). The Appendix contains the
Texas Credit Letter published by the Texas Office of Consumer Credit
Commissioner which shows the Judgment Rate for November 21, 2014 was
five percent (5%).
ARGUMENT
A party filing a restricted appeal must demonstrate the following: (1)
initiation of an appeal within six months after the judgment was rendered; (2)
the appellant was a party to the suit; (3) the appellant did not participate in the
hearing that resulted in the judgment complained of; (4) the appellant did not
timely file a post-judgment motion, request for findings of fact and conclusions
of law, or file a notice of appeal within the time permitted by Rule 26.1(c) of
the Texas Rules of Appellate Procedure; and (5) error appears on the face of
the record. Tex. R. App. P. 30; Vazquez v. Vazquez, 292 S.W.3d 80, 83
(Tex.App.—Houston [14th Dist.] 2007, no pet.). “[T]he face of the record
consists of all the papers on file in the appeal, including the reporter’s record.”
Vasquez, 292 S.W.3d at 83. In this case, there was no hearing, hence there was
no reporter, hence there is no reporter’s record.
4
The Default Judgment was signed and filed on November 21, 2014
(Clerk’s Record 13-15), and the Notice of Restricted Appeal was filed on May
20, 2015 (Clerk’s Record 19-20). As a result, the initiation of the appeal was
within six months of the judgment. Peevy was the Defendant in the lawsuit, so
he was a party to the suit. (Clerk’s Record 1-4). The Docket Sheet (Clerk’s
Record 34) is silent as to the identity of a Court Reporter and the actual
occurrence of a hearing at the time the Default Judgment was signed, so Peevy
did not participate in any hearing which resulted in the judgment complained.
In fact, there was no such hearing. Peevy did not timely file any post-judgment
motion, request for findings of fact and conclusions of law, or file a notice of
appeal within the time permitted by Rule 26.1(c), as shown by the absence of
these in the Clerk’s Record.
With regard to the fifth element, the face of the record shows no
evidence regarding the amount of reasonable and necessary attorney’s fees.
“When a default judgment is taken against non-answering defendants on an
unliquidated claim, all allegations of fact contained in the petition are deemed
admitted, except for the amount of damages.” Argyle Mech., Inc. v. Unigus
Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.—Dallas 2005, no pet.) (citing Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Arenivar v.
Providian Nat’l Bank, 23 S.W.3d 496, 497 (Tex. App.—Amarillo 2000, no
5
pet.)). “When damages are unliquidated, the judge entering the default
judgment must hear evidence on the damages.” Argyle Mech., 156 S.W.3d at
687 (citing Tex. R. Civ. P. 243; Holt Atherton Indus., 835 S.W.2d at 83.) “A
default judgment…does not establish allegations pertaining to unliquidated
damages.” First Nat’l Bank v. Shockley, 663 S.W.2d 685, 689 (Tex. App.—
Corpus Christi 1983, no writ). “The legal and factual sufficiency of evidentiary
support for unliquidated damages may be challenged on appeal from a no-
answer default judgment.” Argyle Mech., 156 S.W.3d at 687 (citing Arenivar,
23 S.W.3d at 498; Dawson v. Briggs, 107 S.W.3d 739, 748 (Tex. App.—Fort
Worth 2003, no pet.)). “If a no-evidence point is sustained as to unliquidated
damages resulting from a no-answer default judgment, the appropriate
disposition is to remand for a new trial on the issue of unliquidated damages.”
Argyle Mech., 156 S.W.3d at 687 (citing Holt Atherton Indus., 835 S.W.2d at
86; Morgan v. Compugraphic Corp., 675 S.W.2d 729, 734 (Tex. 1984)).
“Unliquidated claims include damages for personal injuries, lost profits,
consequential damages, exemplary damages, and reasonable attorney’s fees.”
First Nat’l Bank, 663 S.W.2d at 689 (emphasis added).
In a declaratory judgment proceeding, a court “may award costs and
reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ.
Prac. & Rem. Code §37.009. The face of the record contains no evidence to
6
support an award of any attorney’s fees. With no evidence to support the
amount of attorney’s fees, the award for attorney’s fees must be reversed and
remanded for a trial on that issue.
A close inspection of the record indicates no hearing was held to support
the amount of attorney’s fees. The Docket Sheet (Clerk’s Record 34) clearly
fails to indicate the identity of a Court Reporter or the existence of a hearing.
Ordinarily, the Docket Sheet would show the identity of the Court Reporter and
note the date of the hearing. By the absence of this information, it is reasonable
and appropriate to infer that there was, in fact, no hearing. The Default
Judgment states in its opening sentence “At the hearing on this cause,…"
(Clerk’s Record 13). The record also contains the proposed Default Judgment
submitted by Stephen Hubbard, attorney for Roy Gene Butler (Clerk’s Record
10 – 12). Neither the proposed Default Judgment, the Nonmilitary Affidavit
(Clerk’s Record 8), nor the Certificate of Last Known Mailing Address
(Clerk’s Record 9) reflect file marks. These documents were attached to and
submitted with the Motion for Default Judgment (Clerk’s Record 6-7), filed on
November 13, 2014. On its face, the Motion for Default Judgment alleges a
suit against a different Defendant, Girish Patel. The necessary allegations or
facts to support the Default Judgment pursuant to the Motion are incorrect.
They apply to persons not parties to this suit. From the record, it is apparent
7
that the Plaintiff filed a Motion for Default Judgment, misidentifying the
Defendant, accompanied by the Nonmilitary Affidavit, Plaintiff’s Certificate of
Last Known Mailing Address and proposed Default Judgment (Clerk’s Record
6-12). Later, on November 21, 2014, the Trial Court signed the Default
Judgment, but it did not hold a hearing, nor did Plaintiff request a hearing from
the face of the record (Clerk’s Record 7—citing the prayer contained in the
Motion for Default Judgment which contains no request that a hearing be held).
The face of the record clearly shows no hearing was actually held.
Secondly, the Default Judgment (Clerk’s Record 13-15) contains an
award of post-judgment interest of ten percent (10%) per annum. That amount
is double the correct interest rate of five percent (5%) pursuant to a correct
application of Tex. Fin. Code §304.003 for the time the Default Judgment was
awarded. Tex. Fin. Code §304.003(c)(2) states that a money judgment earns
post-judgment interest at a rate of “five percent a year if the prime rate as
published by the Board of Governors of the Federal Reserve System…is less
than five percent….” The judgment interest rate is published weekly by the
Texas Office of Consumer Credit Commissioner. For the month of November
2014, the prime rate as published by the Board of Governors of the Federal
Reserve System was less than five percent (5%). As a result, the Default
8
Judgment should be reversed and rendered to change the award of post-
judgment interest to accrue at the rate of five percent (5%) per annum.
CONCLUSION
It is clear that the face of the record contains no evidence of the amount
of reasonable and necessary attorney’s fees. Butler failed to meet his burden
and failed to provide any evidence of the amount of reasonable and necessary
attorney’s fees to the Trial Court. As a result, the Default Judgment should be
reversed and remanded for a new trial on this issue.
Secondly, the Default Judgment erroneously awarded post-judgment
interest at the rate of ten percent (10%) per annum. A correct application of
Tex. Fin. Code §304.003 for November 21, 2014 would yield post-judgment
interest at the rate of five percent (5%) per annum. Accordingly, the Default
Judgment should be reversed and rendered with regard to the award of post-
judgment interest changing the post-judgment interest rate from ten percent
(10%) to five percent (5%) per annum on the amount of damages awarded.
PRAYER
Wherefore premises considered, Appellant, Johnny Peevy, prays that the
judgment granted against him be reversed and rendered with respect to post-
judgment interest and reversed and remanded in part to the trial court on the
issue of attorney’s fees. Appellant prays for general relief.
9
Respectfully submitted,
JOHN F. BERRY, P.C.
100 Independence Place, Suite 400
Tyler, Texas 75703
(903) 561-4200
FAX: (903) 561-8922
jfberry@suddenlinkmail.com
/s/ John F. Berry
By: _________________________
John F. Berry
State Bar No. 02236650
Brian E. Richardson
State Bar No. 24068651
10
CERTIFICATE OF SERVICE
17th day of September, 2015, a copy of the
I hereby certify that on the ____
foregoing was mailed by certified mail, return receipt requested, to the
following:
Ronnie Horsely
P O Box 7017
Tyler, Texas 75711
Stephen Hubbard
605 S. Broadway
Tyler, Texas 75701
/s/ John F. Berry
___________________________________
John F. Berry
11
APPENDIX
12
,' 12014
CAUSE NO. 14-1354-C
ROY GEt~E BUTLER §
Plaintiff, §
§
v. §
§
JOHNNY PEEVY §
Defendant. § OF SMITH COUNTY, TEXAS
DEFAULT JUDG1\1:El"';T
At the hearing on this cause, Plaintiff appeared through his attorney of record.
Defendant, Joh21ny Peevy, although duly cited to appear and a.11s\ver herein, has failed to file a."!.
answer within the lime allowed by law.
The Court has considered the pleadings and records on file in this cau~e and the evidence
and is of the opinion that judgment should be rendered for Plaintiff.
The Comt FLNT.lS the foiiowing:
a. Thaddeus Mcclendon purchased the B Lafferty survey, tract 21 located in Smith
County, Texas in 1914;
b. Thaddeus McClendon died in 1934 leaving a \Vife and 3 children, !lamely L.E.,
Raz and Trula McClendon;
c. L.E. Mcclendon had six (6) children, namely Gertha Mae McCiendon Butler,
Geraldine McClendon Peevy, Alexander Edalgo McCkndon, James Phillip
McClendon, Jo Ann McClendon Cole and Marilyn Jean McClendon Evans.
d. By intestate succession, Geraldine McC!endon Peevy inherited her undivided
interest in the property trom her father L.E. ~.1cClendon after his death. Said
interest is separate property of Geraldine McClendon Peevy.
Bi1tler v. Peevy
Smith County Tt:xa;;
Default Judgment Page -1-
13
e. Geraldine McC!endon Peevy married Melvin Peevy. Prior to her marriage,
Geraldine Mcf:!cndon Peevy li~ad a daughter, namely rvraxine 1'-.1cClendon
Wallace.
f. The child of Geraldine Peevy, Maxine McClendon Wallace, died prior to
Geraldine Peevy. Maxine McClendon Wallace left two children at her death,
namely, Daisha Wallace and Armissie Wallace.
c. Geraldine Wallace Peevy died, leaving no will but she had a spouse, Melvin
Pee'°ry a.a~..d the property hi questions was separate property of Geraldine
McClendon Peevy.
f. The heirs of Geraldine McClendon Peevy are Melvin Peevy, Armissie Wallace
and Daisha Wallace.
g. Melvin Peevy died in 2009 in Denver, Colorado.
h. Roy Gene Butler purchased the interest ofDaisha Wallace and Arrnissie Wallace,
who are the heirs of Geraldine IvkC!endon Peevy.
II IS accordingly ORDERED, ADJUDGED and RENDERED that Roy Gene Butler,
Plaintiff, is judicially declared the owner of the following prope1ty- in Smith County, Texas as
described as the B Lafferty survey, tract 21 located [n Smith County; Texas;
II IS ORDERED and DECLARED that Roy Gene Butler is the sole owner of the B
Lafferty sur-vey, tract 2 i iocaicd in Smith County, Texas and Johnny Peevy is divested of any
right, title or claim to said prope1ty.
IT IS FUR1'HE.R ORDERED that Roy Gene Butler he granted attorney fees [n this matter in
the amount of Seven Thousand Dollars ($7,000.00) as of the date of judgement with interest of
3t1tli:r v. Peevy
Smilh Counly Tc:-.:as
[).:faul1 Judgme1ll Page -2-
14
10% per anum; and costs of court.
Plaintiff shall have all writs of execution and other process necessary to enforce this judgment.
This judgment finally disposes of all parties and all claims and is appealable.
I
SIGNED on C\o "2\"'()VJ)( ci) Id\.C ~ 1
)
/
// /, /
d
I'/ -
/
//
~JU/L