Opinion issued October = 11,=20 2007
For=20 The
NARCISO =
SANCHEZ,=20
Appellant LISA =
DAVENPORT,=20
individually and as next friend of A. D., a minor child,=20
Appellee
On =
Appeal from the=20
149th District Court Brazoria =
County,=20
Texas Trial =
Court Cause=20
No. 22822
Appellant,=20
Narciso Sanchez, appeals from a post-answer default judgment =
entered=20
against him, awarding appellee, Lisa Davenport, individually and =
as next=20
friend of A.D., a minor child, damages in the amount of $801,500 =
in a=20
civil assault claim. In three issues, Sanchez contends that =
Davenport's=20
claim is barred by the statute of limitations, that he is entitled =
to a=20
new trial because he did not receive proper notice of the trial =
setting,=20
and that the judge was biased due to the trial court's failure to =
rule on=20
any of his motions. We conclude that Sanchez received proper =
notice of the=20
trial setting. We also conclude that Sanchez's remaining claims =
are waived=20
because he did not obtain an adverse ruling on his assertion that =
the=20
statute of limitations bars the claim, and his remaining challenge =
is=20
inadequately briefed. We affirm. Davenport=20
claims that on or about January 27, 2001, Sanchez engaged in =
unlawful=20
sexual relations with A.D., who at that time was a minor child. =
The civil=20
suit against Sanchez by Davenport was filed on January 23, 2003, =
according=20
to the file stamp on the petition. Sanchez was served with the =
petition=20
later that same year while he was incarcerated in a Texas prison =
for the=20
criminal conviction arising from the sexual assault of A.D. =
Sanchez filed=20
an answer to the lawsuit. On November=20
1, 2005, the trial court set the case for trial to be held on =
January 30,=20
2006. The court coordinator sent the parties notice of the setting =
by=20
mail, instructing them to sign the letter to acknowledge receipt =
of the=20
notice and to return the letter to the court. Davenport returned =
the=20
letter, but Sanchez did not. On November=20
28, the trial court received a letter from Sanchez requesting that =
the=20
court appoint him an attorney. In that letter, Sanchez stated, "I =
have=20
written this letter to you regarding a civil law suit pending in =
my name=20
in your court, set for trial on the 30th day of January of 2006, =
by the=20
same party by which I've been incarcerated for." The trial court =
responded=20
that it was unable to appoint an attorney in a civil =
matter. On January=20
5, 2006, Sanchez filed a motion for an extension of time and a =
motion for=20
an attorney, but he did not request a hearing on those motions. A =
week=20
before the trial setting, Sanchez filed a motion for summary =
judgment with=20
a declaration and memorandum, claiming that the statute of =
limitations=20
barred the suit. On the morning of the scheduled trial on January =
30,=20
Davenport appeared ready for trial, but Sanchez did not appear. =
Davenport=20
denied having received notice of Sanchez's motion for summary =
judgment.=20
Although Davenport responded to the motion for summary judgment =
with a=20
handwritten response that she prepared that morning, the trial =
court did=20
not rule on Sanchez's motion for summary judgment. The trial=20
court rendered a default judgment against Sanchez in the amount of =
$801,500. The final judgment stated that Sanchez had been "duly =
and=20
legally cited to appear, [but] failed to appear, and wholly made =
default."=20
The judgment also deemed admitted Davenport's Requests for =
Admissions due=20
to Sanchez's failure to respond to the requests. On February=20
10, 2006, Sanchez filed a motion for new trial, an affidavit in =
support of=20
the motion, and a notice of appeal, but no hearing was requested =
on the=20
motion for new trial. In his motion for new trial, Sanchez =
asserted that=20
Davenport did not prove that he received proper notice of the =
trial date,=20
that the trial court violated his due process rights, and that he =
is=20
entitled to a new trial. In his own affidavit attached to the =
motion for=20
new trial, Sanchez "unequivocally denied receiving notice of a =
trial=20
setting," "aver[red] that all arguement [sic] in his motion for =
new trial=20
[are] true and correct," and stated that there was "no prima facie =
evidence of the fact of service pursuant to Tex. R. Civ. P. 21a by =
a=20
certified mail green card." In his=20
second issue, Sanchez contends that he is entitled to a new trial =
because=20
his due process rights were violated. More specifically, he =
asserts that=20
the trial court did not have sufficient evidence to determine that =
he=20
received proper notice of the trial setting. A =
trial=20
court abuses its discretion by denying a motion for new trial when =
the=20
defaulting party in a post-answer default judgment establishes =
that it has=20
met the test set forth in Craddock v. Sunshine Bus Lines, =
134=20
Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). Cliff v. =
Huggins, 724=20
S.W.2d 778, 778-79 (Tex. 1987). A =
defendant=20
who has made an appearance in a cause is entitled to notice of the =
trial=20
setting as a matter of due process. Smith, 53 S.W.3d at =
817. A=20
party is entitled to 45 days notice of the first trial setting of =
a case.=20
See Tex. R. Civ. P. 245. Notice sent pursuant to Rule 21a =
creates=20
a presumption that notice was received. Tex. R. Civ. P. 21a;=20
Cliff, 724 S.W.2d at 780. If the defaulted party =
challenges=20
receipt of notice, the presumption disappears and service must =
then be=20
proven according to the rule. Mathis, 166 S.W.3d at 745; =
see=20
also Cliff, 724 S.W.2d at 780. Because=20
Sanchez has challenged receipt of notice of the trial setting, we =
cannot=20
presume that he received notice. See Mathis, 166 S.W.3d =
at 745=20
(holding that oral assurance by attorney showed only that notice =
was=20
mailed, not received, and finding no other evidence in record =
proving=20
receipt of notice). The record must affirmatively prove that =
Sanchez=20
received notice of the trial setting before the default judgment =
may be=20
upheld. Here, the record contains affirmative proof that Sanchez =
received=20
notice of the January 30 trial setting. In the letter from Sanchez =
that=20
the trial court received on November 28, 2005, Sanchez said that =
he was=20
writing to the court regarding the "civil law suit pending in my =
name in=20
your court, set for trial on the 30th day of January of 2006." =
This=20
evidence shows that Sanchez had, at a minimum, 63 days notice of =
the trial=20
setting, which is more than the 45 days required by Rule 245. =
See=20
Tex. R. Civ. P. 245. Because the record shows that Sanchez had =
notice of=20
the January 30 trial setting, we hold that the trial court did not =
abuse=20
its discretion by denying the motion for new trial. We overrule =
Sanchez's=20
second issue. In his=20
first issue, Sanchez contends that the civil assault action =
against him is=20
barred by the statute of limitations. Sanchez raised this issue in =
a=20
motion for summary judgment filed on January 23, 2006, but there =
was no=20
hearing and the trial court did not rule on the motion before =
granting=20
Davenport's default judgment. In order to preserve an issue for =
appellate=20
review, a party must timely present the issue to the trial court =
and=20
receive an adverse ruling from the trial court. Tex. R. App. P. =
33.1;=20
see Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). =
Because=20
appellant failed to obtain an adverse ruling from the trial court, =
we hold=20
that appellant did not preserve this issue for our review. We =
overrule=20
appellant's first issue.Judge's Bias In his=20
third point of error, Sanchez claims that "[Davenport's] attorney=20
committed aggravated perjury in the trial proceedings" and that =
the trial=20
court "only took sides with [Davenport]'s attorney in an act of =
conspiracy=20
to cause severe harm to [Sanchez]." In his supplemental brief, =
Sanchez=20
also asserts that the motion for new trial was never presented to =
the=20
trial court in an effort by court officials to "cover up" his =
motion for=20
new trial. Elsa=20
Alcala Justice 1. Sanchez's declaration was unsworn but he =
satisfied=20
requirements of sections 132.001 and 131.002 of the Civil Practice =
and=20
Remedies Code, which provides that a prisoner may make an unsworn=20
declaration in lieu of a written sworn declaration if it is in =
writing and=20
subscribed as true and under penalty of perjury. Tex. Civ. Prac. =
&=20
Rem. Ann. Code =A7=A7 132.001-.002 (Vernon 2005).=20
2.