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Roberts v. Mariner Village Condominium Association, Inc.

Court of Appeals of Texas, Fourteenth District

January 10, 2017

FRED A. ROBERTS A/K/A FRED ALLEN ROBERTS, Appellant
v.
MARINER VILLAGE CONDOMINIUM ASSOCIATION, INC., Appellee

          On Appeal from the 164th District Court Harris County, Texas Trial Court Cause No. 2014-71183

          Panel consists of Justices Christopher, Jamison, and Donovan.

          MEMORANDUM OPINION

          Tracy Christopher Justice

         In this appeal from the judgment in favor of Mariner Village Condominium Association, Inc. in its suit for delinquent maintenance assessments, defendant Fred Roberts contends that the trial court erred in rendering a no-answer default judgment against him. We conclude that Roberts's "motion to dismiss improper service" was in effect a motion to quash citation, and that by filing the motion, Roberts appeared in the cause. Because a defendant who has appeared in the cause must be notified of a dispositive hearing and it is undisputed that Roberts had no notice of the hearing on the motion for default judgment, his due-process rights were violated. We therefore reverse the judgment and remand the cause.

         I. Background

         Mariner Village sued Roberts for delinquent maintenance assessments on six marina berths and sought to foreclose its vendor's lien on the property. After a Sarasota County deputy sheriff personally served Roberts in a Florida post office, Roberts filed a "motion to dismiss improper service" on the ground that the Sarasota County sheriff's department has no jurisdiction on federal property. The record contains neither a ruling on the motion nor any indication that the trial court was ever asked to rule on it.

         Several months later, Mariner Village successfully moved for a no-answer default judgment against Roberts. In the judgment, the trial court recited that Roberts was duly served with process, but that he failed to appear. The trial court ordered Roberts to pay $13, 717.46 in delinquent fees, late charges, interest, and collection costs for the years 2011, 2012, and for January 1st through September 15th of 2015, together with $5, 754.48 in attorney's fees incurred through the date of judgment and additional attorney's fees if Roberts pursued an unsuccessful appeal.

         Roberts moved for a new trial on the grounds that (a) he was never notified of any ruling on his "motion to dismiss improper service"; (b) he was never notified of a hearing date on Mariner Village's motion for default judgment; (c) he has not owned the property since 2010; and (d) he has a counterclaim against Mariner Village for more than $50, 000, 00. The trial court allowed the motion to be overruled by operation of law.

          II. Analysis

         We review the trial court's failure to grant Roberts's motion for new trial for abuse of discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). The dispositive ground raised in Roberts's motion for new trial is his assertion that he was never notified of a hearing date on Mariner Village's motion for default judgment.[1] To satisfy due-process requirements, a defendant who has appeared in a cause must be notified of a hearing on a dispositive motion-including a motion for default judgment. See LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam). Roberts therefore is entitled to reversal and remand if he appeared in the cause but had no notice of the hearing setting for Mariner Village's motion for default judgment.

         A. Roberts appeared in the cause.

         Roberts argues on appeal that his "motion to dismiss improper service" constitutes an answer, while Mariner Village contends that the "motion amounts to nothing more than a Motion to Quash Service, which constitutes an appearance, not an [a]nswer." Mariner Village is correct: Roberts's motion to dismiss for improper service was, in effect, a motion to quash citation.

         A motion to quash citation does not constitute an answer to the plaintiff's petition. Cf. Tex. R. Civ. P. 85. By successfully moving to quash service or citation, the defendant can obtain an extension to the deadline to answer the plaintiff's petition. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202 (Tex. 1985) (per curiam). If the trial court grants the motion to quash, then the defendant's appearance-and concomitantly, the deadline for the defendant to answer the plaintiff's petition-is postponed until 10:00 a.m. on the first Monday after the expiration of twenty days from the date that the trial court quashes the service or citation. Tex.R.Civ.P. 122. Because a successful motion to quash extends the time to answer the plaintiff's petition, we cannot agree with Roberts's argument that his motion was itself an answer that prevented Mariner Village from obtaining a no-answer default judgment.

         On the other hand, Mariner Village acknowledges that by filing a motion to quash citation, a defendant appears in the case. Here, too, Mariner Village is correct. See GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G. v. Varme, 991 S.W.2d 785, 786 (Tex. 1999) (per curiam); Kawasaki Steel Corp., 699 S.W.2d at 201-02; see also Tex. R. Civ. P. 123 (when a judgment is reversed for failed or defective service of process, no new service is required because the defendant already has appeared in the case by challenging the adequacy of service); Summersett v. Jaiyeola, 438 S.W.3d 84, 92 (Tex. App.-Corpus Christi ...


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