Resolution Trust Corp. v. Park Leasing Co.

VANCE, Justice,

dissenting.

Appellants are (1) the Resolution Trust Corporation as receiver of Fortune Financial Federal Savings Association (RTC-FFFSA), (2) James R. Cox (Cox), an individual, and (3) the RTC in its corporate capacity (RTC). They appeal from a default judgment awarding Park Leasing Company dba Maytag Financial Service Corporation (Park) a joint and several judgment against the Association, Cox, and the RTC.

I would affirm the judgment of the trial court because Appellants have not shown that the court abused its discretion in failing to grant them a new trial.

INCOMPLETE STATEMENT OF FACTS

The record contains only a statement of facts from the hearing on Appellants’ motion for new trial. On June 11, 1992, Appellants requested that the court reporter prepare a statement of facts containing:

(1) All testimony and argument of counsel presented by Plaintiff to the Court in support of the Judgment by Default.
(2) All testimony presented to the Court at the hearing held April 23, 1992, on Defendants’ Motion for New Trial.
(3) All argument of counsel presented to the Court at the hearing held on April 23, 1992, on Defendants’ Motion for New Trial.

Appellants took no steps to show that a statement of facts from the default-judgment hearing is not available. No stipulation, testimony, or affidavit of the court reporter, or certificate of the judge evidencing the unavailability of a statement of facts appears in the record. See Michael A. Pohl & David Hittner, Judgments by Default in Texas, 37 Sw.L.J. 421, 438-41 (1983).

The majority recognizes that the subject matter of the suit against RTC-FFFSA could be within the jurisdiction of the District Court of Coryell County if Park had exhausted its administrative remedies, i.e., *226properly filed a claim that was expressly denied or denied by the passage of time. The opinion does not hold that the court did not acquire jurisdiction over the RTC-FFFSA because of any defect in the issuance, service, or return of process; rather it sustains RTC-FFFSA’s factually-based attack on the court’s jurisdiction, i.e., that Park failed to exhaust its administrative remedies by filing a claim with the RTC-FFFSA. In reviewing such a factually-based attack, we should — in the absence of a statement of facts from the default judgment hearing — presume that the court heard sufficient evidence to support the default judgment against all three Appellants.1 See Duplantis v. Noble Toyota, Inc., 720 S.W.2d 863, 865 (Tex.App.—Beaumont 1986, no writ); Brunson v. Pittman & Harris, 640 S.W.2d 91, 92-93 (Tex.App.—Fort Worth 1982, no writ); Baen-Bec, Inc. v. Tenhoppen, 548 S.W.2d 799, 801 (Tex.Civ.App.—Eastland 1977, no writ). If the default judgment is supported by sufficient evidence, it is less likely that the court abused its discretion in failing to grant Appellants’ motion to vacate the judgment and grant them a new trial.

STANDARD OF REVIEW

Appellants are complaining of the court’s failure to grant their motion to vacate the default judgment and grant them a new trial. The standard of review is whether, in denying the motion, the court abused its discretion. See Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex.App.—Fort Worth 1986, no writ); Cornerstone Alternatives v. Patterson Olds., 696 S.W.2d 702, 704 (Tex.App.—Fort Worth 1985, no writ); Royal Zenith Corp. v. Martinez, 695 S.W.2d 327, 329 (Tex.App.—Waco 1985, no writ). The court, as the fact finder at a hearing on a motion for a new trial, determines the credibility of the witnesses and the weight to be given to their testimony. Royal Zenith, 695 S.W.2d at 330. An abuse of discretion does not exist when the court bases its decision on conflicting evidence and the evidence reasonably supports its conclusion. Executive Tele-Communication Systems v. Buchbaum, 669 S.W.2d 400, 403 (Tex.App.—Dallas 1984, no writ). Stated another way: If reasonable minds could differ as to the result, the decision of the trial judge would not be unreasonable or arbitrary. Navistar Intern. Corp. v. Valles, 740 S.W.2d 4, 6 (Tex.App.—El Paso 1987, no writ).

APPELLANT RTC-FFFSA

RTC-FFFSA presented no evidence at the motion for new trial. Park presented one witness, its attorney’s office administrator. She testified that letters were written to the RTC; that she spoke by telephone with Robert Rainwater, Staff Attorney for the RTC; that she inquired in a telephone conversation with Don Farr, a Program Director for RTC, about the proper person to serve with citation; and that a representative of Fortune Financial Federal Savings Association, which was still in operation, gave her the name of John Mann as the proper person to serve with citation and an address where citation could be served.

Based on the evidence adduced at the hearing, I cannot agree that the court abused its discretion in denying RTC-FFFSA’s motion. The letter dated May 16, 1991, quoted in the majority opinion, shows that Park (1) notified the RTC-FFFSA of the basis for its claim (the pledge of a certificate of deposit as collateral on a lease), (2) made a prior request to FFFSA for “liquidation of the CD,” (3) stated the amount of its claim (the amount of the certificate of deposit), and (4) made a demand on the RTC for payment. In Capital Data Corp. v. Capital Nat. Bank, the FDIC had sent to creditors a “proof of claim” form and required that the form be “completed in full, signed by a properly *227authorized signatory, notarized and returned along with supporting documents.” Capital Data Corp. v. Capital Nat. Bank, 778 F.Supp. 669, 677 (S.D.N.Y.1991). The record does not show that the RTC-FFFSA had any similar requirements. It is difficult to imagine what additional information could have been provided to put the RTC-FFFSA on notice of the basis and amount of Park’s claim.

I would reach the same result on the proof-of-claim point, even if the missing statement of facts were inconsequential to the outcome of this appeal, because the RTC-FFFSA failed to show that.the court abused its discretion in denying its motion to vacate the judgment and grant a new trial.

COX AND RTC

The RTC does not contend that filing a claim was a prerequisite to its being sued in its corporate capacity. Neither Cox nor the RTC presented any testimony at the hearing on the motion. Neither party introduced any evidence or made any argument to the trial court that would justify our holding that the court abused its discretion in refusing to grant either of them a new trial. See Royal Zenith, 695 S.W.2d at 329.

. McKanna v. Edgar, upon which the majority relies, concerns a direct attack on a default judgment and, in that context, dispenses with the presumption that the recitals in a judgment that process was duly issued, served, and returned are true; it does not discuss the rule that a missing statement of facts is presumed to support the judgment. McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex.1965). Cases citing McKanna follow the same analysis. See e.g., Metcalf v. Taylor, 708 S.W.2d 57, 59 (Tex.App.—Fort Worth 1986, no writ).