Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Odela Group, LLC v. Double-R Walnut Management, L.L.C.

Court of Appeals of Texas, Fifth District, Dallas

April 12, 2017

ODELA GROUP, LLC AND KEVIN LEE JONES, Appellants
v.
DOUBLE-R WALNUT MANAGEMENT, L.L.C., Appellee

         On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-03546

          Before Justices Evans, Stoddart, and Boatright

          MEMORANDUM OPINION

          JASON E. BOATRIGHT JUSTICE

         This is a restricted appeal. Appellants Odela Group, LLC ("Odela") and Kevin Lee Jones seek reversal of the trial court's judgment in favor of appellee Double-R Walnut Management, L.L.C. ("DWM"), asserting there was error on the face of the record. For the reasons stated below, we conclude that DWM's pleadings are sufficient and that there is no error on the face of the record regarding notice of trial. With the exception of DWM's claim under the Texas Theft Liability Act ("TTLA"), we also conclude that there is legally and factually sufficient evidence to support the trial court's judgment. Accordingly, we reverse the trial court's judgment as to DWM's TTLA claim and render judgment that DWM take nothing on that claim. In all other respects, we affirm the trial court's judgment.

          Background

         By written contract dated February 8, 2012, DWM agreed to pay Odela to repair and restore a building in Dallas that had been damaged by fire. Jones signed the contract on Odela's behalf. DWM paid Odela an installment of $150, 000, and Odela began work on the job. After Odela began installing a new roof on the building, DWM paid a second installment of $200, 000. The new roof leaked. Odela failed to fix the problem and walked off the job in July 2012.

         After attempts to resolve the dispute failed, DWM filed suit against Odela and Jones, alleging claims for breach of contract, conversion, fraud, violations of the Deceptive Trade Practices-Consumer Protection Act ("DTPA"), and theft of property. Odela and Jones appeared and answered, but failed to respond to DWM's requests for admission despite the trial court's order compelling them to do so. On DWM's subsequent motion for sanctions, the trial court deemed the requests admitted.

         DWM filed a traditional motion for summary judgment on all of its claims, relying on the deemed admissions and the affidavit of Bruce Renouard, the owner of DWM. The trial court granted partial summary judgment on DWM's claims for "breach of contract, conversion, fraud, theft of property and violation of DTPA as to liability only."

         The case then proceeded to trial before the court on the issue of DWM's damages. Neither Odela nor Jones appeared at the hearing. Renouard testified to DWM's damages, and the trial court admitted supporting exhibits into evidence. DWM also offered evidence of its reasonable and necessary attorney's fees. The trial court rendered judgment for DWM, awarding actual damages on DWM's "breach of contract, conversion, fraud, theft of property and violation of DTPA claims" of $275, 000 "for payment made for work never performed"; $66, 632.05 "for repairs to the work performed by the Defendants"; $164, 700 in lost rents for the property, and treble damages under the DTPA of $1, 518, 996.15. The judgment also awarded DWM attorney's fees, interest, and costs. Neither Odela nor Jones filed any post-judgment motions or requests for findings of fact and conclusions of law. On February 25, 2016, they filed this restricted appeal.

         Restricted Appeal

         A party who does not participate in person or through counsel in a hearing that results in a judgment may be eligible for a restricted appeal. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014); Tex.R.App.P. 30. To sustain a proper restricted appeal, Odela and Jones must prove: (1) they filed notice of the restricted appeal within six months after the judgment was signed; (2) they were parties to the underlying lawsuit; (3) they did not participate in the hearing that resulted in the judgment complained of, and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Only the fourth element is at issue in this appeal.

         The face of the record includes all papers on file in the appeal, including the clerk's record and any reporter's record. See Ulusal v. Lentz Eng'g, L.C., 491 S.W.3d 910, 914 (Tex. App.-Houston [1st Dist.] 2016, no pet.). In a restricted appeal, we afford the appellant the same scope of review as an ordinary appeal, that is, review of the entire case, with the restriction that the error must appear on the face of the record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).[1] A review of the entire case includes review of legal and factual insufficiency claims. Id.

          Issues and Standards of Review

         In eight issues, Odela and Jones challenge the sufficiency of DWM's pleadings and the legal and factual sufficiency of the evidence to support the trial court's judgment against each of them. They also contend they did not receive notice of the trial court's final hearing on damages.

         The trial court granted a traditional summary judgment on liability. A party moving for a traditional summary judgment must show no material fact issue exists and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). We review a challenge to a traditional summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We must determine whether the movant met its burden to establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We affirm the trial court's judgment on liability if any theory presented to the court and preserved for review is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004).

         The trial court also rendered judgment for DWM after a bench trial on damages. "In a nonjury trial, where no findings of fact or conclusions of law are filed or requested, it is implied that the trial court made all the necessary findings to support its judgment." Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam). These implied findings may be challenged for legal and factual sufficiency where, as here, a reporter's record is included in the record on appeal. Id. We review implied findings by the same standards we use in reviewing the sufficiency of the evidence to support a jury's answers or a trial court's fact findings. Id. In conducting a legal sufficiency review, we must determine whether the evidence would enable the factfinder to reach the determination under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will not disturb a finding for factual insufficiency unless the evidence in support of the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In the absence of findings of fact and conclusions of law, the judgment of the trial court must be affirmed if it can be upheld on any available legal theory that finds support in the evidence. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (per curiam). We review the trial court's ruling on questions of law de novo. See, e.g., Ferry v. Sackett, 204 S.W.3d 911, 912 (Tex. App.-Dallas 2006, no pet.).

         Notice of Final Hearing

         In their seventh issue, Odela and Jones complain that they did not receive notice of the trial court's final hearing on damages.[2] In a post-answer default case, "well-settled law forbids entering a default judgment against a defendant that has received no notice of the hearing on a motion for default judgment." KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 (Tex. App.-Dallas 2003, no pet.).

         When a party claims in a restricted appeal that required notice was not given or a required hearing was never held, the error must appear on the face of the record. Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (per curiam). We have concluded there was error on the face of the record arising from lack of notice where the record affirmatively showed notice was sent to counsel at an incorrect address and was returned undeliverable, Smith v. Shipp, No. 05-09-01204-CV, 2010 WL 2653733, at *1 (Tex. App.-Dallas Jul. 6, 2010, no pet.) (mem. op); where notice was served on counsel more than three months after the court ordered that counsel to withdraw, Shih v. Mei, No. 05-14-00900-CV, 2005 WL 225271, at *2 (Tex. App.- Dallas Feb. 1, 2005, no pet.) (mem. op.); and where service of notice of a motion for summary judgment was given only eleven days before the hearing, Shaw v. Radionic Indus., Inc., No. 05-07-01333-CV, 2008 WL 4793499, at *2 (Tex. App.-Dallas Nov. 5, 2008, no pet.) (mem. op.).

         But silence in the record regarding notice is not error on the face of the record. In Gold, the court explained that it "recently reaffirmed that the absence in the record of any proof that notice of intent to dismiss was sent to a party is 'just that-an absence of proof of error.'" Gold, 145 S.W.3d at 213 (quoting Alexander, 134 S.W.3d at 849). "Accordingly, it is not error apparent on the face of the record, and could not support a restricted appeal." Id.

         Here, the record is silent regarding whether notice of the final hearing date was sent to Odela and Jones. The docket sheet in the clerk's record reflects an order granting partial summary judgment on July 17, 2015, a nonjury trial setting on August 24, 2015, and a final hearing on August 28, 2015. Nothing appears regarding notice of these settings. At the August 28 hearing, the reporter's record reflects that the trial court and DWM's counsel discussed the absence of counsel for Odela and Jones.[3] But there is nothing in either the clerk's record or the reporter's record to indicate whether or not Odela and Jones received notice of the hearing date.

         Where, as here, extrinsic evidence would be necessary to establish that a hearing was held without notice to Odela and Jones, "the appropriate remedy is by motion for new trial or by bill of review filed in the trial court so that the trial court has the opportunity to consider and weigh factual evidence." Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per curiam). In Ginn, the court explained, "the absence of proof in the record that notice was provided does not establish error on the face of the record." Id. at 433. "[W]e have clearly said that silence is not enough." Id.

          Because the record is silent regarding notice to Jones and Odela of the August 28, 2015 hearing, Jones and Odela have not established error on the face of the record. We decide Jones's and Odela's seventh issue against them.

         Sufficiency of Pleadings

         In their first and second issues, Jones and Odela contend DWM's operative petition does not support the judgment against them. A trial court may not grant relief to a party in the absence of pleadings to support the relief. Stoner v. Thompson, 578 S.W.2d 679, 682-83 (Tex. 1979). A pleading must give fair notice of the plaintiff's claims. Tex.R.Civ.P. 45(b). The purpose of the fair notice requirement is to provide the opposing party with sufficient information to enable him to prepare a defense. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). When a party fails to specially except to a pleading, "courts should construe the pleadings liberally in favor of the pleader." Id.

         Appellants' complaint is limited to

• the fraud claim against Odela;
• the breach of contract claim against Jones;
• the DTPA claim against Jones; and
• the TTLA claim against Jones. [4]
We discuss each of the challenged pleadings ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.