FRED A. ROBERTS A/K/A FRED ALLEN ROBERTS, Appellant
MARINER VILLAGE CONDOMINIUM ASSOCIATION, INC., Appellee
Appeal from the 164th District Court Harris County, Texas
Trial Court Cause No. 2014-71183
consists of Justices Christopher, Jamison, and Donovan.
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.
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.
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.
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.
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. 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
Roberts appeared in the cause.
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.
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.
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