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Herrera v. Rodriguez

Court of Appeals of Texas, Fourth District, San Antonio

November 8, 2017

Rolando HERRERA and Integrated International, Inc. d/b/a International Carriers, Inc., Appellants
v.
Maria E. RODRIGUEZ, Appellee

         From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2016CVF001625D3 Honorable Rebecca Ramirez Palomo, Judge Presiding

          Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice.

          MEMORANDUM OPINION

          SANDEE BRYAN MARION, CHIEF JUSTICE.

         This is a restricted appeal of a no-answer default judgment. The sole issue presented by appellants Rolando Herrera and Integrated International, Inc. d/b/a International Carriers, Inc. is that the "record is entirely devoid of any evidence that Rolando Herrera is liable under the Promissory Note in his individual capacity." We affirm the trial court's judgment.

         Background

         On June 10, 2016, Maria E. Rodriguez filed the underlying lawsuit naming Herrera and Integrated International as defendants.[1] In her petition, Rodriguez alleged that in November of 2014, Herrera and Integrated International executed a promissory note payable to her in the amount of $580, 000, and they did not make any payments pursuant to the note. Rodriguez further alleged that on March 15, 2016, Herrera and Integrated International executed a promissory note modification agreement increasing the principal amount of the note to $614, 800, and they did not make any payments pursuant to the modified note. Neither Herrera nor Integrated International filed an answer.

         On August 31, 2016, Rodriguez filed a motion for a default judgment. Several documents were attached to the motion, including: (1) the return of citation issued to Herrera; (2) a Sale and Purchase Agreement dated December 19, 2014, pursuant to which Integrated Carriers, Inc. agreed to purchase Rodriguez's stock in Integrated Logistics Solutions, Inc. by delivering a promissory note payable to Rodriguez at closing in the principal amount of $580, 000, bearing interest at 4.5% and payable in forty-eight monthly installments;[2] (3) a Promissory Note Modification Agreement executed by Integrated Carriers, Inc., increasing the principal amount of a November 2014 promissory note payable to Rodriguez to $614, 800, bearing interest at 4.5% per annum and payable in forty-eight monthly installments; and (4) an affidavit setting forth the amount of attorney's fees and costs incurred by Rodriguez and the amount of attorney's fees she would incur in the event of an appeal.

         On October 3, 2016, the trial court held a hearing on Rodriguez's motion. At the hearing, the trial court took judicial notice of the documents attached to the motion and heard testimony from Rodriguez and her husband. At the conclusion of the hearing, the trial court granted a default judgment in Rodriguez's favor. Herrera and Integrated International timely filed a restricted appeal to challenge the default judgment.

         Restricted Appeal

         To prevail on a restricted appeal, the appellant must prove: (1) the notice of the restricted appeal was filed within six months after the judgment was signed; (2) the appellant was a party to the underlying lawsuit; (3) the appellant 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. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014). The record clearly establishes the first three elements; therefore, we only need to determine if Herrera and Integrated International have shown error apparent on the face of the record. Herrera and Integrated International argue error is apparent on the face of the record because the record contains no evidence that Herrera is personally liable for the debt.

         No-Answer Default Judgment

         "[D]efault judgments are not all alike, " and "different rules apply in different circumstances." Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012). Because the default judgment in the instant case is a no-answer default judgment, we focus on the rules applicable to that circumstance.

         "[T]he non-answering party in a no-answer default judgment is said to have admitted both the truth of the facts set out in the petition and the defendant's liability on any cause of action properly alleged by those facts." Id.; see also Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984) (noting no-answer default judgment "admits all allegations of fact set out in the petition"). "The defendant's default thus establishes liability, but a trial may still be necessary if the plaintiff's damages are unliquidated." Paradigm Oil, Inc., 372 S.W.3d at 183; see also Morgan, 675 S.W.2d at 731 (noting "if the facts set out in the petition allege a cause of action, a [no-answer] default judgment conclusively establishes the defendant's liability"). As a result, "an appellant is precluded from challenging the legal and factual sufficiency of the evidence supporting liability in a no-answer default judgment." Chen v. Johnson, No. 02-12-00428-CV, 2013 WL 2339233, at *1 (Tex. App.-Fort Worth May 30, 2013, no pet.) (mem. op.); see also Texaco, Inc. v. Phan, 137 S.W.3d 763, 768-70 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (holding appellate court not allowed to review legal and factual sufficiency of the evidence supporting defendant's liability in a restricted appeal of a no-answer default judgment); Norton v. Martinez, 935 ...


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