Crown Asset Management, L.L.C. v. Loring

OPINION

Opinion By

Justice FRANCIS.

This appeal follows the trial court’s order dismissing for want of prosecution Crown Asset Management, L.L.C.’s breach of contract suit against Shannon Loring. In two issues, Crown contends the trial court erred in dismissing its suit and in denying its motion for default judgment. We affirm the trial court’s order.

Crown sued Loring to collect on an alleged deficiency of $10,601.55 after a foreclosure on the collateral securing a contract. Embedded within the petition was a request for admissions. Loring was served with the original petition but did not answer. After the lawsuit was filed, the trial court sent a letter advising that the case had been placed on the dismissal docket and would be dismissed on September 28, 2007 unless Crown took one of several alternative actions, one of which was to prove up a default judgment if no answer was filed.

Crown moved for default judgment. Various exhibits were attached to the motion, including affidavits in support of the judgment and for attorney’s fees. The trial court sent Crown a letter advising that it was returning the proposed default judgment unsigned because of several substantive deficiencies, including that the petition did not give fair notice of the claim. Crown then filed an amended motion for default judgment but did not amend its petition. The trial court again returned the proposed judgment, asserting various deficiencies, including the lack of fair notice of the claim. Crown did not respond, and on October 2, 2007, the trial court signed an order dismissing the case for two reasons: (1) “[fjailure to take action after notice of intent to dismiss for want of prosecution (IN ACCORDANCE WITH RULE 165A LETTER)” and (2) want of prosecution. Crown appealed.

*843We begin with Crown’s second issue in which it complains the trial court erred in denying its motion for default judgment. We may consider the trial court’s denial of a motion for default judgment when, as here, the denial is challenged in an appeal from a final judgment or order. Aguilar v. Livingston, 154 S.W.3d 832, 833 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Here, Crown moved for default judgment, and the trial court specifically notified Crown in writing that it was returning Crown’s proposed default judgment unsigned because of various perceived defects. We conclude the trial court’s written notice in this ease was an adverse ruling on the motion for default judgment, and the issue is properly preserved for review. See Tex.R.App. P. 33.1 (providing that trial court must rule on motion, either expressly or implicitly, for complaint to be preserved). We overrule any previous opinions from this Court that concluded to the contrary.

A default judgment is erroneous if the petition does not give fair notice to the defendant of the claim asserted. Paramount Pipe & Supply, Inc. v. Muhr, 749 S.W.2d 491, 494 (Tex.1988). Texas Rules of Civil Procedure 45 and 47 govern pleadings and require pleadings to give fair notice of the claim asserted. See Tex.R. Civ. P. 45, 47; Paramount, 749 S.W.2d at 494. Rule 45 mandates “plain and concise language” and further provides that the fact “[tjhat an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole.” Tex.R. Civ. P. 45. Rule 47 requires that an original pleading include “a short statement of the cause of action sufficient to give fair notice of the claim involved.” Tex.R. Civ. P. 47. The purpose of the fair notice requirement is to provide the opposing party with sufficient information to enable her to prepare a defense. Paramount, 749 S.W.2d at 494.

In its original petition, Crown alleged the following:

FACTS. Plaintiff, CROWN ASSET MANAGEMENT, LLC, acquired this account by assignment from UNION ACCEPTANCE COMPANY, LLC. In the usual course of business, funds were advanced to Defendant pursuant to a contract. To secure the payment of the contract, Defendant executed a security agreement granting a security interest in the goods described therein. Plaintiff is the owner and holder and is entitled to receive all money due under its terms.
DEFAULT. Defendant defaulted in making required payments pursuant to the contract which is the subject of this suit. Plaintiff foreclosed its security interest in the collateral, which was sold in accordance with Texas law. The balance due Plaintiff is $10,601.55 after all just and lawful offsets, credits, and payments. Plaintiff has demanded that Defendant pay this amount, but Defendant has not done so.

This is the entirety of the factual allegations contained in the petition, and no exhibit relating to the contract was attached. The petition alleged in the most bare-bones fashion that Loring had defaulted on a contract, the collateral securing the contract was sold, and a balance was due. The petition does not, however, provide any identifying information about the underlying contract, such as a loan or account number or the original lender, nor does it contain any identifying information regarding the alleged collateral or the sale of the collateral. Under the allegations, it is impossible to determine from the petition with whom or for what Loring allegedly contracted. Given the complete absence of even basic information in this petition, we conclude it does not provide *844sufficient notice to the defendant to prepare a defense; consequently, Crown was not entitled to a default judgment. We overrule the second issue.

In its first issue, Crown contends the trial court erred in dismissing its suit for want of prosecution. We review a dismissal for want of prosecution for an abuse of discretion. Vann v. Brown, 244 S.W.3d 612, 614 (Tex.App.-Dallas 2008, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. See WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex.App.-Dallas 2006, pet. denied).

The trial court may dismiss a case for want of prosecution under its inherent power to control its docket if the case has not been prosecuted with diligence. Id. Lack of diligence need not amount to abandonment for a case to be properly dismissed. Id. In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Id. No single factor is dispositive. Id.

On May 31, 2007, the day after the petition in this case was filed, the trial court notified the parties it was placing the case on its September 28, 2007 dismissal docket and advised the parties to take certain actions by that date to avoid dismissal. In response, on August 20, Crown filed a motion for default judgment. Two days later, the trial court notified Crown it was returning the judgment unsigned for several identified deficiencies. On September 6, Crown filed an amended motion for default judgment in which it failed to address some of the alleged deficiencies and apparently attempted to address some deficiencies by relying on deemed admissions. In response, the trial court on September 10 and 15, notified Crown it was returning the default judgment, both times setting out numerous deficiencies. Crown did not respond to either the September 10 or 15 notice nor did it seek a clarification, a continuance, or any other action from the trial court. On October 2, the case was dismissed.

Crown has raised no complaint regarding the notice it received; it only complains that it acted diligently. Given the history of this case and the circumstances, we cannot conclude the trial court abused its discretion in dismissing the case after notifying Crown three times of the problems with its motion for default judgment that were not corrected, particularly in light of the fact that we have determined that Crown was not entitled to a default judgment. We perceive the trial court aggressively administered its docket timetable before dismissing this case, but the facts before us do not reveal any abuse of discretion. We recognize, however, that such aggressive administration in other cases may result in an injustice. We overrule the first issue.

We affirm the trial court’s dismissal order.

FITZGERALD, J., dissenting, joined by JJ. LANG and FILLMORE.