Reversed and Remanded and Memorandum Opinion =
filed=20
February 19, 2008.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-07-00259-CV
_______________
COMUNIDAD BALBOA, LLC, =
Appellant
V.
CITY OF NASSAU =
BAY,=20
Appellee
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =20
On Appeal from the 164th District=20
Court
Harris County, Texas
Trial Court Cause No.=20
2005-55420
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =20
M E M O R=20
A N D U M O P I N I O N
Appellant,=20
Comunidad Balboa, LLC (AComunidad@), appeals=20
the judgment of the trial court granting City of Nassau Bay (the=20
ACity@) a=20
default judgment against it in two issues: (1) the trial court =
erred in=20
entering the Final Judgment by Default, dated September 25, 2006, =
because=20
Comunidad filed an answer on May 19, 2006; and (2) the trial court =
erred=20
in holding that Comunidad=3Ds First=20
Amended Motion for New Trial was overruled by operation of law on =
or about=20
75 days after September 25, 2006 because the Final Judgment by =
Default was=20
interlocutory. We reverse and remand.
Background
Comunidad,=20
the owner of Balboa Apartments located within the jurisdiction of =
the=20
Harris County Appraisal District (AHCAD@), applied=20
for, and was granted, an ad valorem tax exemption for its property =
from=20
HCAD. Subsequently, and after its initial challenge to the =
exemption=20
was denied, the City sued Comunidad and HCAD pursuant to sections=20
41.03-41.07 of the Texas Tax Code, which allows a taxing entity to =
challenge HCAD=3Ds decision=20
to grant an exemption to a property owner. Comunidad was =
served on=20
September 25, 2005. On May 11, 2006, in light of the fact =
that=20
Comunidad had not yet answered, the City served Comunidad with its =
Motion=20
for Final Judgment by Default, and noticed a hearing for May 15,=20
2006. Two days later, the trial court ordered a Final =
Judgment by=20
Default against Comunidad without a hearing and assigned liability =
to=20
Comunidad; the issue of damages was reserved. =
Comunidad=20
states that it first became aware that it was required to file an =
answer=20
in May 2006, and did so on May 19, 2006, two days after the =
default=20
judgment was signed. =20
Comunidad later received a docket control order dated June 8, =
2006,=20
setting trial in January 2007. =20
However, having obtained a default judgment against Comunidad, the =
City=20
now sought an agreed judgment with HCAD. In pursuit of this =
agreed=20
final judgment, and noting that the final judgment entered on May =
17, 2006=20
left the issue of damages open, on September 6, 2006, the City =
sought in a=20
Motion to Modify Order on Plaintiff=3Ds Motion=20
for Judgment by Default to have the May 17, 2006 judgment =
modified=20
to remove any residual claim for damages. The City served =
Comunidad=20
with the motion and noticed the hearing for September 25, =
2006. =20
Comunidad failed to appear, and the trial court ordered a second =
Final=20
Judgment by Default. Counsel for Comunidad testified at a =
February=20
19, 2007 hearing that they failed to appear at the September 2006 =
hearing=20
because they were moving offices, and while they discovered the =
notice in=20
a box, they had not seen it in time to appear. On November =
22, 2006,=20
Comunidad filed its Motion for New Trial, and then filed its First =
Amended=20
Motion for New Trial on January 30, 2007.
On=20
February 19, 2007, a hearing was convened and the trial court =
considered=20
Comunidad=3Ds First=20
Amended Motion for New Trial and the agreed judgment between the =
City and=20
HCAD. After a robust discussion of events, the trial court =
ruled=20
that the First Amended Motion for New Trial was overruled by =
operation of=20
law and signed the agreed judgment between the City and =
HCAD. This=20
appeal ensued.
Default=20
Judgment
This=20
judgment did not become final until February 19, 2007, when the =
trial=20
court signed the agreed judgment between the City and HCAD. =
As long=20
as HCAD remained a party, the default judgment against =
Comunidad was=20
interlocutory. See In re Burlington Coat Factory =
Warehouse of=20
McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005); =
Clarendon=20
Nat. Ins. Co. v. Thompson, 199 S.W.3d 482, 492 (Tex. =
App.CHouston=20
[1st Dist.] 2006, no pet.). Comunidad=3Ds first=20
issue contends that the trial court erred in entering a default =
judgment=20
against it on September 25, 2006, because Comunidad filed an =
answer on May=20
19, 2006. A trial court may not render a no-answer default =
judgment=20
against a defendant once an answer has been filed. See =
Tex.=20
R. Civ. P. 299; Davis v. Jeffries, 764 S.W.2d 559, 560 =
(Tex. 1989)=20
(per curium) (noting that filing an answer before default judgment =
is=20
rendered precludes the default, even if the answer is untimely =
filed and=20
the trial court is not aware it has been filed). Because the =
record=20
reveals that Comunidad filed an answer on May 19, 2006, the trial court =
erred in=20
rendering a no-answer default judgment against it thereafter. We=20
grant Comunidad=3Ds first issue, and in =
so doing,=20
need not address =
its=20
second issue.
Accordingly,=20
we reverse the default judgment rendered by the trial court and =
remand the=20
cause to the trial court below for proceedings consistent with =
this=20
opinion. =20
/s/ =20
Adele Hedges
Chief Justice
Judgment rendered and =
Memorandum Opinion filed February 19, 2008.
Panel consists of =
Chief Justice=20
Hedges, Justice Anderson, and Senior Justice Murphy.
=20
Counsel for Comunidad claims that he called the court clerk to =
confirm no=20
default judgment had been entered.
=20
The case was still pending because HCAD was also a party to the=20
City=3Ds lawsuit.
=20
A plaintiff may not attain a post-answer default judgment solely =
on the=20
pleadings, but is required to put on evidence to prove each =
element of its=20
claim if the defaulting party fails to appear for trial. See =
Bradley=20
Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex. 1994) =
(citing =20
Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979)). =
Hence, even=20
though Comunidad failed to appear at the September 25, 2006 =
hearing, the=20
City is not entitled to a post-answer default judgment because it =
failed=20
to put on any evidence proving its case.
=20
Senior Justice Paul C. Murphy sitting by=20
=
assignment. |