![](3D"http://www.1stcoa.courts.state.tx.us/opinions/070618f/seal.gif"=20)
In=20 The
For=20 The
JAMES O. =
OKORAFOR,=20
Appellant FRANK =
WILL JEFFREYS,=20
Appellee
On =
Appeal from the=20
190th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2006-04757
MEMORANDUM=20
OPINION Appellant, =
James O.=20
Okorafor, appeals a post-answer default judgment entered against =
him on a=20
claim of legal malpractice. In five issues, Okorafor argues that=20
(1) the trial court erred in =
denying his=20
motion for new trial because he did not receive notice of the =
trial=20
setting; (2) the trial court erred in denying his motion for new =
trial=20
because he met the three prongs of the Craddock test; (3) =
the=20
evidence presented at trial was legally and factually insufficient =
to=20
sustain the judgment; (4) the trial court erred in adopting =
Jeffrey's=20
findings of fact; and (5) the judgment entered against him is =
either void=20
ab initio or voidable. We affirm the judgment of the =
trial=20
court. Appellee=20
Frank Will Jeffreys ("Jeffreys") filed suit against appellant =
James O.=20
Okorafor ("Okorafor") on a claim of legal malpractice. Jeffreys =
filed his=20
original petition on January 24, 2006 and Okorafor filed an answer =
on=20
April 11, 2006. A =
written=20
notice of the trial setting of February 19, 2007 was sent to both =
parties=20
on February 13, 2007. The trial court's file also reflected that =
the=20
parties "had been previously told that they were on a two-week =
docket=20
beginning February 12, 2007 and that [the scheduling order ] was =
issued on=20
April 20, 2006." Okorafor filed a motion for continuance on =
February 14,=20
2007, but he never set the motion for a hearing. After=20
calling for Okorafor to appear at trial on February 19, 2007, the =
trial=20
court commenced the trial and heard testimony from Jeffreys. =
Jeffreys,=20
appearing pro se, presented testimony that he had hired =
Okorafor,=20
a licensed attorney, to defend himself and his company, Capitol =
State=20
Mortgage, in a suit against them styled Michael Izard and =
Tracy Izard=20
v. Dan Womack, Individually, Old Magnolia Road Plantation, Inc., =
Capitol=20
State Mortgage Corp., Frank Jeffreys, and Tina B. Suell, =
Cause No.=20
00-05-15397, heard in the Ninth Judicial District Court in Waller =
County,=20
Texas. ("Izard case"). The Izards had sued Jeffreys, =
Capitol=20
State Mortgage, and their home builder after they discovered that =
their=20
home had been defectively built. Jeffreys=20
testified that Okorafor never notified him regarding a discovery =
sanctions=20
hearing in the Izard case held on October 11, 2004. He =
also=20
testified that Okorafor never notified him about trial and never =
appeared=20
at trial on behalf of Jeffreys or Capitol State Mortgage in the =
Izard=20
case. Jeffreys testified that Okorafor never notified him =
about a=20
damages hearing in the Izard case held on October 15, =
2004.=20
Jeffreys testified that the trial court in the Izard case =
entered=20
a default judgment against him in November 2004. He testified that =
Okorafor also failed to timely file an appeal of the Izard =
case.=20
A judgment of $4,939,486.36 was entered against Jeffreys and the =
other=20
defendants. Jeffreys testified that he filed for bankruptcy and =
closed=20
Capitol State Mortgage to avoid the payment of the judgment. =
Jeffreys=20
asked the trial court to assess damages at $984,000, approximately =
one-fifth of the value of the judgment entered against the five =
defendants=20
by the trial court. The trial court asked Jeffreys if he had =
evidence that=20
he had a meritorious defense in the Izard case. When =
Jeffreys=20
failed to produce evidence that he had a meritorious defense, the =
trial=20
court refused to grant judgment in his favor. However, the trial =
court=20
stated that Jeffreys could continue the case if he met the =
necessary=20
filing deadlines. The trial court then denied Jeffrey's motion for =
default=20
judgment without prejudice so that Jeffreys could facilitate "its=20
reconsideration should there be further motions presented." =
On March 7,=20
2007, Jeffreys filed a verified motion for reconsideration of his =
motion=20
for default judgment and a request for a rehearing on the motion =
for=20
summary judgment. Jeffreys attached a certificate of conference =
with=20
Okorafor which reads as follows: On March 7,=20
2007, I spoke with [Okorafor's] office in good faith and have =
attempted to=20
resolve the matter set out in the above motion and [Okorafor] is =
out of=20
the country, long term, and has not returned my call. =
He also=20
filed a "Notice of Oral Hearing on Plaintiff's Motion for =
Reconsideration"=20
which reads as follows: Please be=20
advised that Plaintiff in the above captioned case filed Frank =
Will=20
Jeffreys ("Jeffreys") Motion for Reconsideration/Rehearing =
("Motion") on=20
the 7th day on March 2007 and the Motion is set for oral hearing =
at 201=20
Caroline, Houston, Texas 77002 on the Court's docket for April =
5th, 2007=20
at 1:30 p.m. On March=20
22, 2007, Okorafor filed a no-evidence summary judgment motion =
after=20
receiving a "Notice of Intent to Dismiss--No Final Order" from the =
trial=20
court. Okorafor also filed a motion to continue the April 5, 2007 =
hearing=20
on the motion for reconsideration of Jeffreys' motion for default=20
judgment. Okorafor set a hearing on the motion to continue for =
April 2,=20
2007. However, Okorafor left the county to attend his mother's =
funeral in=20
Nigeria, held on March 30, 2007. On April 5,=20
2007, Jeffreys, appearing with counsel, returned to the trial =
court for=20
the hearing on his motion for reconsideration of his original =
motion for=20
default judgment. Okorafor did not appear at the trial and did not =
send a=20
representative. After calling for Okorafor, the trial court =
convened the=20
hearing. Jeffreys testified that, in the Izard case, the =
builder=20
filed for bankruptcy and the Izards joined him, his assistant, =
Tina B.=20
Suell and Capitol State Mortgage as defendants to their suit over =
the=20
defective construction of the house. Jeffreys testified that he =
had no=20
involvement in the construction of the house because he was an =
underwriter=20
of the mortgage. He testified that he believed that if Okorafor =
had=20
properly responded to the lawsuit he would have had no liability =
in the=20
Izard case. He also testified that he asked Okorafor to =
file a=20
countersuit against the Izards because Capitol State Mortgage had =
to repay=20
the Izards' loan, assessed at $159,000, because the Izards were in =
foreclosure after the first six months of the mortgage. Jeffreys =
also=20
testified that Okorafor did try to file an appeal with the =
Fourteenth=20
Court of Appeals, but the Court dismissed the appeal for failure =
to timely=20
pay the filing fees. The trial=20
court granted Jeffreys' motion and entered a default judgment of=20
$995,897.27 against Okorafor. The trial court refused to make any =
findings=20
of fact in the judgment and instructed Jeffreys to file a separate =
document if findings of fact were requested. The trial court =
signed the=20
final judgment on April 5, 2007. Jeffreys requested findings of =
fact on=20
April 25, 2007. On April=20
10, 2007, Okorafor received notice that final judgment had been =
entered=20
against him at the April 5, 2007 hearing. On May 5, 2007, Okorafor =
filed a=20
motion for new trial which included an affidavit that =
stated: I =
was not=20
aware of the [sic] that a final judgment had been signed =
in favor=20
of [Jeffreys] on April 5, 2007. The notice of judgment was mailed =
to me by=20
the Harris County Court Clerk on April 10, 2007. . . . I became =
aware that=20
my Motion for Continuance of the Hearing Date of April 5, 2007 was =
denied=20
after May 15, 2007 when the Harris County Clerk mailed the notice =
on May=20
15, 2007. The trial=20
court convened a hearing on Okorafor's motion for new trial on =
July 13,=20
2007. Okorafor appeared at the hearing. Jeffreys told the court =
that he=20
would "stand on his papers in the matter." Okorafor testified that =
he=20
failed to appear at the hearing on Jeffreys' motion to reconsider =
the=20
default judgment because he was attending his mother's funeral in =
Nigeria,=20
and he presented documents referring to his mother's funeral =
service.=20
Okorafor testified that he was not consciously indifferent when =
failing to=20
appear because Jeffreys was fully apprised of the circumstances of =
his=20
absence, namely his mother's illness and death. Okorafor also =
testified=20
that he had never had a contract with Jeffreys to act as Jeffreys' =
personal attorney in the Izard case. The trial court =
denied=20
Okorafor's motion for new trial on July 13, 2007. On October 16, 2007, the trial =
court made=20
the following findings of fact and conclusions of law: 1. Okorafor and Jeffreys had an =
attorney-client relationship in the case of Michael Izard and =
Tracy=20
Izard v. Jeffreys et al., Cause No. 00-0515397, in the 9th =
Judicial=20
District Court of Waller County, Texas (the "Izard=20
case"). 2. In the Izard case, =
Okorafor=20
had a duty to Jeffreys that arose out of the attorney-client=20
relationship. 3. In the Izard case, =
Jeffreys=20
instructed Okorafor to file a motion for summary judgment and =
countersuit=20
in the Izard lawsuit, but Okorafor failed to take=20
action. 4. In the Izard case, =
Okorafor=20
failed to respond or attend a Discovery Sanctions hearing set for =
October=20
12, 2004. 5. In the Izard case, =
Okorafor=20
failed to advise Jeffreys of the discovery or the Discovery =
Sanctions=20
hearing set for October 12, 2004. 6. In the Izard case, =
Okorafor=20
failed to attend the Damages Hearing set for October 15,=20
2005. 7. In the Izard case, =
Okorafor=20
failed to advise Jeffreys of the Damages Hearing set for October =
15,=20
2005. 8. In the Izard case, =
Okorafor=20
failed to advise Jeffreys of the entry of a judgment against him =
until on=20
or after March 4, 2005. 9. In the Izard case, =
Okorafor=20
failed to timely file a Notice of Appeal. 10. This lawsuit was filed in =
the 190th=20
District Court on January 24, 2006 and set for trial on April 5,=20
2006.[sic] Okorafor received Notice of Trial as evidenced =
by=20
Okorafor's Motion for Continuance filed on March 22, 2007, in =
which he=20
specifically mentioned the April 5th trial date. However, Okorafor =
failed=20
to appear for trial. 11. At trial, Jeffreys was a =
very=20
credible witness and the documentary evidence supported his =
claims.=20
12. Following a bench trial, =
the Court=20
signed a judgment in favor of plaintiff on April 5, =
2007. 13. The court found that based =
on a=20
preponderance of the evidence claims against Jeffreys in the =
Izard=20
case were weak and apart from Okorafor's complete abrogation =
of his=20
duty, the outcome of the Izard case would have been =
different and=20
more beneficial to Jeffreys. Okorafor's negligence caused the poor =
result=20
in the Izard case. 14. Okorafor's negligent act or =
omission=20
breached a duty that arose from the scope of the attorney-client=20
relationship. Okorafor's inadequate representation as counsel was =
the=20
proximate cause of Jeffreys' damages, which totaled $995,897.27.=20
15. The court held an =
evidentiary hearing=20
on Okorafor's Motion for New Trial. The testimony of Mr. Okorafor =
was not=20
credible. He testified that he did not know of the trial setting =
but the=20
file reflects that he had filed a Motion for Continuance. =
Moreover, there=20
was no credible evidence presented at the hearing on the Motion =
for New=20
Trial that Mr. Okorafor had a defense on the merits to this=20
lawsuit. A =
post-answer default judgment occurs when a timely answer, that =
puts the=20
merits of plaintiff's claims at issue, is on file, but the =
defendant fails=20
to appear at trial. Sharif v. Par Tech, Inc., =
135 S.W.3d=20
869, 872 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (citing =
Stoner=20
v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). If a defendant =
has=20
filed such an answer, the defendant's failure to appear at trial =
is=20
neither an abandonment of the defendant's answer nor is it an =
implied=20
confession of any issues thus joined by the defendant's answer.=20
Id. Post-answer default judgments cannot be entered on =
the=20
pleadings, but, rather, a plaintiff must offer evidence and prove =
his case=20
as in a judgment at trial. Id. at 873. This Court must =
have a=20
record of the evidence in order to determine if sufficient =
evidence was=20
submitted to support the judgment. Id. When a default =
judgment is=20
attacked by motion for new trial in the trial court, the parties =
may=20
introduce affidavits, depositions, testimony, and exhibits to =
explain what=20
happened. In his=20
first issue, Okorafor argues that Once a=20
defendant has made an appearance in a cause, he is entitled to =
notice of=20
the trial setting as a matter of due process under the Fourteenth=20
Amendment. In the=20
instant case, Okorafor filed an answer to Jeffreys' original =
petition=20
initiating Jeffreys' legal malpractice claim. However, Okorafor =
failed to=20
appear at trial. On April 5, 2007, the trial court =
entered a=20
post-answer default judgment against Okorafor. Okorafor claims he =
did not=20
receive notice of the February 19, 2007 trial setting. However, he =
admitted in his May 5, 2007 affidavit, attached to his motion for =
new=20
trial, that he received notice of the trial held on February 19, =
2007 and=20
notice of the hearing on Jeffreys' motion on reconsideration held =
on April=20
5, 2007. Okorafor also admitted in his affidavit that, on March =
22, 2007,=20
he filed a motion for continuance of the hearing on the motion for =
reconsideration. Thus, the record supports the trial court's =
finding that=20
Okorafor's testimony to the contrary was not credible. We overrule=20
Okorafor's first issue. In his=20
second issue, Okorafor argues that the trial court erred in =
denying his=20
motion for new trial because he met the three prongs of the =
Under the=20
Craddock test, a post-answer default judgment =
should be=20
set aside when the defendant establishes that (1) nonappearance at =
trial=20
was not intentional or the result of conscious indifference, but =
the=20
result of an accident or mistake, (2) the motion for new trial =
sets up a=20
meritorious defense, and (3) granting the motion will occasion no =
undue=20
delay or otherwise injure the plaintiff. In the=20
instant case, Okorafor received notice of the February 19, 2007 =
trial=20
setting, but he failed to appear for trial. Jeffreys appeared, and =
the=20
trial court heard his testimony and evidence. The trial court =
ruled that=20
Jeffreys presented insufficient evidence to justify entry of a =
default=20
judgment for damages and also ruled to continue the hearing to =
receive=20
such evidence if Jeffreys timely filed a motion for =
reconsideration. On=20
March 7, 2007, Jeffreys filed a motion for reconsideration and set =
it for=20
oral hearing on April 5, 2007. On March=20
22, 2007, Okorafor filed a motion for continuance of the April 5, =
2007=20
motion for reconsideration hearing and scheduled a hearing on his =
motion=20
for continuance for April 2, 2007. However, Okorafor failed to =
ensure that=20
his motion for continuance was granted by the trial court. =
Okorafor failed=20
to appear either for the April 2, 2007 hearing on his motion for=20
continuance or for the April 5, 2007 hearing. A judgment in favor =
for=20
Jeffreys was signed on April 5 and sent to Okorafor on April 10. =
Okorafor=20
received notice that the trial court denied his motion for =
continuance on=20
May 15, 2007. Okorafor=20
filed a motion for new trial on May 5, 2007. At the motion for new =
trial=20
hearing on July 13, 2007, Okorafor told the trial court that he =
was=20
attending his mother's funeral in Nigeria held on March 30, 2007 =
and could=20
not attend the trial. He excused his absence by saying Jeffreys =
was aware=20
of this circumstance. Okorafor=20
admitted that he received notice of the April 5, 2007 hearing =
continuing=20
the default judgment hearing, that he did not receive notice that =
his=20
motion for continuance had been granted, and that he did not =
attend either=20
the April 2 hearing on his motion for continuance or the April 5 =
hearing=20
for Jeffreys' motion for reconsideration of the default=20
judgment. Okorafor=20
knew or should have known that his absence from the trial was not =
good=20
cause for a motion for continuance and that he was susceptible to =
a=20
default judgment either if he failed to appear at the hearing or =
if he=20
failed to secure a continuance of the April 5, 2007 hearing. =
See=20
Tex. R. Civ. P. 253; Villegas, 711 S.W.2d at =
626;=20
Hunsucker We overrule Okorafor's =
second=20
issue. Here, the=20
trial court made findings of fact. In an appeal of a judgment =
rendered=20
after a bench trial, the trial court's findings of fact have the =
same=20
weight as a jury's verdict, and we review the legal and factual=20
sufficiency of the evidence used to support them just as we would =
review a=20
jury's findings. Catalina v. Blasdel, 881 S.W.2d =
295,=20
297 (Tex. 1994); De Claire v. G&B Mcintosh Family Ltd.=20
P'ship, 260 S.W.3d 34, 42 (Tex. App.--Houston [1st =
Dist.]=20
2008, no pet.). When a=20
party without the burden of proof at trial challenges the legal=20
sufficiency of the evidence, we consider all of the evidence in =
the light=20
most favorable to the prevailing party, indulging every reasonable =
inference in that party's favor. Formosa Plastics Corp. =
USA=20
v. Presidio Eng'rs & Contractors, Inc., 960 =
S.W.2d=20
41, 48 (Tex. 1998); De Claire, 260 S.W.3d at=20
42-43. A=20
trial court's findings of fact are reviewed for factual =
sufficiency of the=20
evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) =
(citing=20
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 =
(Tex.=20
1991)). In reviewing a factual sufficiency point, we must weigh =
all of the=20
evidence. Id. (citing Burnett v. Motyka, 610 =
S.W.2d 735,=20
736 (Tex. 1980)). "Findings may be overturned only if they are =
against the=20
great weight and preponderance of the evidence so as to be clearly =
wrong=20
and unjust." Id. (citing Cain v. Bain, 709 =
S.W.2d 175,=20
176 (Tex. 1986)). When we hold that a trial court's =
finding of=20
fact is factually insufficient, we must clearly state why the =
finding of=20
fact is factually insufficient or so against the great weight and=20
preponderance of the evidence as to be manifestly unjust. Id.=20
Legal=20
malpractice claims sound in tort. Belt v. Oppenheimer, Blend, =
Harrison=20
& Tate, Inc., 192 S.W.3d 780, 783 (Tex. 2006). =
The=20
plaintiff must demonstrate "that (1) the attorney owed the =
plaintiff a=20
duty, (2) the attorney breached that duty, (3) the breach =
proximately=20
caused the plaintiff's injuries, and (4) damages occurred." =
Id.=20
(citing Peeler v. Hughes & Luce, 909 S.W.2d 494, =
496=20
(Tex. 1995)). Breach of the standard of care and causation are =
separate=20
inquiries, and an abundance of evidence as to one cannot =
substitute for a=20
deficiency of evidence as to the other. Alexander v. Turtur =
&=20
Associates, 146 S.W.3d 113, 119 (Tex. 2004). If a legal =
malpractice=20
case arises from prior litigation, a plaintiff must prove that but =
for the=20
attorney's breach of his duty the plaintiff would have prevailed.=20
Grider v. Mike O'Brien, P.C., 260 S.W.3d 49, 55 (Tex.=20
App.--Houston [1st Dist.] 2008, pet. denied). Legal malpractice =
may=20
include an attorney's failure to exercise ordinary care in =
preparing,=20
managing, and presenting litigation. Id. The trier of =
fact must=20
have some basis for understanding the causal link between the =
attorney's=20
negligence and the client's harm. Id. When the causal =
link is=20
beyond the common understanding of the trier of fact, expert =
testimony is=20
needed. Id. (1)=20
Duty to Client Here the=20
trial court made the following findings of fact regarding the =
existence of=20
an attorney-client relationship and the inherent duty =
involved: 1. Okorafor=20
and Jeffreys had an attorney-client relationship in the case of=20
Michael Izard and Tracy Izard v. Jeffreys et al., Cause =
No.=20
00-0515397, in the 9th Judicial District Court of Waller County, =
Texas=20
(the "Izard case"). 2. In the=20
Izard case, Okorafor had a duty to Jeffreys that arose =
out of the=20
attorney client relationship. At the=20
February 19, 2007 trial setting, Jeffreys testified that he hired=20
In his=20
motion for new trial, Weighing=20
all the evidence, we conclude that the (2)=20
Breach of the Standard of Care and Causation A =
lawyer in=20
Texas is held to the standard of care that would be exercised by a =
reasonably prudent attorney. Cosgrove v. Grimes, 774 =
S.W.2d 662,=20
664 (Tex. 1989). The fact finder must evaluate his conduct based =
on the=20
information the attorney has at the time of the alleged =
malpractice.=20
Id. If an attorney makes a decision that a reasonably =
prudent=20
attorney could make in the same or similar circumstances, it is =
not an act=20
of negligence, even if the result is undesirable. Id. at =
655.=20
The standard is an objective exercise of professional =
judgment.=20
Id. Expert testimony is generally required to determine =
the=20
standard of care. Evans v. Adamo, No. 01-04-00872-CV, =
2006 WL=20
2042486, at *2 (Tex. App.--Houston [1st Dist.] July 20, 2006, no =
pet.)=20
(mem. op.) (citing Zenith Star Ins. Co. v. Wilkerson, 150 =
S.W.3d=20
525, 530 (Tex. App.--Austin 2004, no pet.)). The=20
determination of proximate cause is usually a question of fact.=20
Grider, 260 S.W.3d at 55. If a legal malpractice case =
arises from=20
prior litigation, a plaintiff must prove that, but for the =
attorney's=20
breach of his duty, the plaintiff would have prevailed. =
Id. In=20
some cases, the client's testimony may provide this link, but in =
others=20
the connection may be beyond the jury's common u Jeffreys=20
provided no expert testimony in the instant malpractice case =
regarding the=20
appropriate standard of care and causation owed him by Okorafor in =
the=20
Izard case. Rather, at the February 19, 2007 trial of =
this case,=20
Jeffreys produced the trial court's judgment entered from the =
Izard=20
case, which, in part, reads as follows: A =
hearing=20
on this case was held on October 12, 2004 regarding Plaintiff's =
Amended=20
Motion for Discovery Sanctions. Plaintiffs appeared through their =
counsel=20
of record, Hal D. Hale, Jr. Defendants and their counsel failed to =
file a=20
motion and though timely notified of the hearing failed to appear. =
The=20
Court granted a "Death Penalty" sanction against Defendants and=20
Defendant's counsel and struck all Defendant's pleadings. =
A =
hearing=20
was held on October 15, 2004 regarding damages. Plaintiffs =
appeared=20
through their counsel of record, Hal D. Hale, Jr. and although =
timely=20
notified of the hearing, Defendants and their counsel failed to =
appear.=20
Following=20
the February 19 trial and April 5, 2007 hearing on the motion for=20
reconsideration in the instant malpractice case, the trial court =
made the=20
following relevant findings of fact: 3. In the Izard case, =
Jeffreys=20
instructed Okorafor to file a motion for summary judgment and =
countersuit=20
in the Izard lawsuit, but Okorafor failed to take=20
action. 4. In the Izard case, =
Okorafor=20
failed to respond or attend a Discovery Sanctions hearing set for =
October=20
12, 2004. 5. In the Izard case, =
Okorafor=20
failed to advise Jeffreys of the discovery or the Discovery =
Sanctions=20
hearing set for October 12, 2004. 6. In the Izard case, =
Okorafor=20
failed to attend the Damages Hearing set for October 15,=20
2005. 7. In the Izard case, =
Okorafor=20
failed to advise Jeffreys of the Damages hearing set for October =
15,=20
2005. 8. In the Izard case, =
Okorafor=20
failed to advise Jeffreys of the entry of a judgment against him =
until on=20
or after March 4, 2005. 9. In the Izard case, =
Okorafor=20
failed to timely file a Notice of Appeal. . . . . 11. At trial, Jeffreys was a =
very=20
credible witness and the documentary evidence supported his =
claims.=20
12. Following a bench trial, =
the Court=20
signed a judgment in favor of plaintiff on April 5, =
2007. 13. The court found that based =
on a=20
preponderance of the evidence claims against Jeffreys in the =
Izard=20
case were weak and apart from Okorafor's complete abrogation =
of his=20
duty, the outcome of the Izard case would have been =
different and=20
more beneficial to Jeffreys. Okorafor's negligence caused the poor =
result=20
in the Izard case. 14. Okorafor's negligent act or =
omission=20
breached a duty that arose from the scope of the attorney-client=20
relationship. Okorafor's inadequate representation as counsel was =
the=20
proximate cause of Jeffreys' damages, which totaled $995,897.27.=20
The evidence supports the trial =
court's=20
findings that Because Jeffreys presented some =
evidence=20
of breach and proximate cause, we hold that the standard of legal=20
sufficiency was met. (3)=20
Damages The trial=20
court in the Izard case assessed $4,939,486.36 in damages =
against=20
the five Izard defendants We overrule=20
Okorafor's third issue. In his=20
fourth issue, Okorafor argues that the trial court erred in =
adopting=20
Jeffreys' findings of fact and conclusions of law. We construe =
Okorafor's=20
argument as urging that Jeffreys' findings of fact adopted by the =
trial=20
court are against the great weight and preponderance of the =
evidence and=20
that the trial court's legal conclusions were erroneous. See=20
Ortiz, 917 S.W.2d at 772 ("Findings may be overturned only if =
they=20
are so against the great weight and preponderance of the evidence =
as to be=20
clearly wrong and unjust"). First,=20
Okorafor argues that the trial court adopted a finding of fact =
falsely=20
stating that attorney Timothy James Henderson appeared before the =
court on=20
behalf of Jeffreys on February 19, 2007. However, the record does =
not=20
reflect that the trial court made such a finding of fact. =
Second,=20
Okorafor argues that the trial court adopted a finding of fact =
that the=20
trial court entered a final judgment at the February 19, 2007 =
trial. The=20
record does not reflect that the trial court adopted a finding of =
fact=20
that it entered a final judgment on February 19, 2007. The record =
does not=20
support Okorafor's arguments as to either of these alleged =
findings of=20
fact. Okorafor=20
also argues that the trial court erred generally in making its =
findings of=20
fact. This allegation is inadequately briefed. See Tex. =
R. App.=20
P. 38.1(h); see also Tesoro Petroleum Corp. v. Nabors Drilling =
USA, 106 S.W.3d 118, 128 (Tex. App.--Houston [1st Dist.] =
2002, pet=20
denied) (stating that Rule 38 requires appellant to provide =
reviewing=20
court "with such discussion of the facts and the authorities =
relied upon=20
as may be requisite to maintain the point at issue"). We overrule=20
Okorafor's fourth issue. In his=20
fifth issue, Okorafor argues that the default judgment entered =
against him=20
is either void ab initio or voidable. A =
judgment=20
is void only when it is apparent that the court rendering judgment =
"had no=20
jurisdiction of the parties, no jurisdiction of the subject =
matter, no=20
jurisdiction to enter the judgment, or no capacity to act as a =
court."=20
Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987) (citing=20
Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985)). =
Errors=20
other than lack of jurisdiction render the judgment merely =
voidable.=20
Id. Okorafor=20
also argues that the trial court judgment is voidable because the =
trial=20
court made findings of fact in the form of the judgment. Findings =
of fact=20
shall not be recited in a judgment. Tex. R. Civ. P. 299a. If there =
is a=20
conflict between findings of fact recited in a judgment in =
violation of=20
this rule and findings of fact made pursuant to Rules 297 and 298, =
the=20
latter findings will control for appellate purposes. Id. =
Findings=20
of fact shall be filed with the clerk of the court as a document =
or=20
documents separate and apart from the judgment. Id. =
Here, both=20
Okorafor and Jeffreys offered a version of the judgment containing =
findings of fact. However, the trial court specifically told =
Jeffreys that=20
it would not make findings of fact in the form of the judgment =
because it=20
was improper under the rules. The trial court struck through all =
the=20
findings of fact in Jeffreys' version and rendered the following =
judgment=20
on April 5, 2007: The Court=20
called this case for trial. Plaintiff Frank Will Jeffreys =
("Jeffreys")=20
appeared and announced ready. Defendant James O. Okorafor =
("Okorafor") was=20
sent proper notice but did not show up for the trial. The Court =
heard and=20
considered all matters in controversy, legal and factual, and the =
Court=20
heard and considered Jeffreys sworn testimony, evidence and =
offered=20
exhibits and relevant pleadings and orders in the case. After =
considering=20
the proper evidence before the Court and on file, the Court grants =
final=20
judgment for Plaintiffs as follows:
ORDERED=20
that a Judgment by Default be granted to Plaintiff's against =
Okorafor as=20
to liability in the above referenced case; and it is =
further
ORDERED=20
that the Plaintiffs recover Defendant Okorafor =
$995,897.27.
ORDERED=20
that all writs issue and execution issue for this Final=20
Judgment. The Court=20
denies all relief not granted in this Final Judgment. The court=20
then entered findings of fact and conclusions of law in a separate =
document on October 16, 2007. Okorafor's reliance on Texas Rule of =
Civil=20
Procedure 299a is inapplicable to the facts of this case because =
the trial=20
court did not make any findings of fact in the form of the =
judgment. We=20
conclude that the judgment rendered by the trial court is neither =
void ab=20
initio nor voidable. We overrule=20
Okorafor's fifth issue. We affirm the judgment of the =
trial=20
court. Evelyn V. Keyes Justice Panel consists of Justices =
Jennings,=20
Keyes, and =
Higley.