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Silverado Truck & Diesel Repair, LLC v. Lawson

Court of Appeals of Texas, Fifth District, Dallas

April 3, 2019

SILVERADO TRUCK & DIESEL REPAIR, LLC, Appellant
v.
KIRK S. LAWSON, Appellee

          On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-06227

          Before Justices Brown, Schenck, and Pedersen, III

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         Silverado Truck & Diesel Repair, LLC ("Silverado") appeals a default judgment granted in favor of appellee Kirk S. Lawson. In its first issue, Silverado contends the trial court abused its discretion by failing to provide it notice and a hearing before granting Lawson's motion for default judgment. As part of its first issue, Silverado argues the trial court erred in awarding unliquidated damages to Lawson without supporting evidence and without conducting a hearing. In its second issue, Silverado complains of the trial court's denial of its motion to set aside default judgment and for new trial. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.

         Background

         In 2015, Lawson engaged Silverado to perform work on his vehicle. On May 24, 2017, Lawson filed a petition, in which he asserted the following causes of action against Silverado: violation of the Texas Deceptive Trade Practices Act, negligence, breach of contract, fraud, and conversion. On July 28, 2017, the managing member of Silverado filed an original answer on its behalf. Lawson filed a motion to strike Silverado's answer because it was filed by a pro se corporate defendant. See L'Arte De La Mode, Inc. v. Neiman Marcus Grp., 395 S.W.3d 291, 295 (Tex. App.-Dallas 2013, no pet.). On September 1, 2017, the trial court granted Lawson's motion, struck Silverado's answer, and ordered Silverado to retain a duly authorized attorney and file an amended answer within thirty days of the order. Silverado did not file an amended answer. On November 3, 2017, Lawson filed a motion for entry of default judgment against Silverado. On February 7, 2018, the trial court signed an order of default judgment against Silverado, which awarded damages of $38, 800.43 and attorney's fees to Lawson. On March 8, 2018, Silverado filed a motion to set aside the default judgment and for new trial. Lawson later filed a response. On April 13, 2018, the trial court signed an order denying Silverado's motion, which included a finding that Silverado's failure to answer before entry of the default judgment was the result of conscious indifference on Silverado's part.[1]

         Discussion

         I. Default Judgment

         In its first issue, Silverado contends the trial court abused its discretion by failing to provide it adequate notice and a hearing before granting Lawson's motion for default judgment. Silverado argues that, although its answer was struck as defective, its existence prevented the trial court from granting a default judgment against Silverado. However, this Court has already concluded that after striking a corporate defendant's answer a trial court may exercise its discretion to grant a default judgment against that defendant without further notice or a hearing. See GQ Enters. Corp. v. Rajani, No. 05-12-01353-CV, 2014 WL 2152000, at *3 (Tex. App.-Dallas May 22, 2014, no pet.) (mem. op.). We may not overrule a prior panel decision of this Court. See MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.- Dallas 2008, no pet.). Thus, barring reconsideration by the Court sitting en banc or an intervening decision by the supreme court, Rajani controls the disposition of this issue. See id.; see also Rajani, 2014 WL 2152000, at *3.

         Silverado relies on KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 (Tex. App.- Dallas 2003, no pet.), to argue that even after the trial court struck its answer, it was entitled to notice and a hearing on Lawson's motion for default judgment. In Beasley, we concluded the trial court abused its discretion by entering a default judgment at the same hearing that it struck the corporate defendant's answer as defective without allowing a reasonable time to remedy the defect. Id. In this case, the trial court struck Silverado's answer and ordered Silverado to retain a duly authorized attorney and file an amended answer within thirty days of the order. The trial court did not grant default judgment against Silverado until five months after that order striking Silverado's answer.

         Silverado also relies on a holding from the supreme court that, "In the case of a disobedient defendant where answer on the merits of the case has been stricken, a default judgment may not be taken, but the plaintiff must discharge his burden of showing his right to a recovery." Knox v. Long, 257 S.W.2d 289, 303 (Tex. 1952), overruled on other grounds by Jackson v. Hernandez, 285 S.W.2d 184, 191 (Tex. 1955). We find the facts and circumstances of Knox to be distinguishable from the instant case. In Knox, the trial court entered default judgment against an individual defendant as a sanction for refusing to appear and give her deposition. See id. at 302.

         As part of its first issue, Silverado argues that the trial court committed reversible error by failing to have the court reporter present to record the proceedings on the default judgment. Silverado relies on a decision requiring a record to establish that a post-answer default judgment was properly entered on sufficient evidence rather than impermissibly on a plaintiff's pleadings. See Sharif v. Par Tech, Inc., 135 S.W.3d 869, 873 (Tex. App.-Houston [1st Dist.] 2004, no pet.). As we have already concluded that the trial court properly treated the defendant as having filed no answer and properly granted default judgment against Silverado without conducting a hearing, we decide against Silverado on this argument as well. See Rajani, 2014 WL 2152000, at *3.

         II. Unliquidated Damages

         As part of its first issue, Silverado argues the trial court erred in awarding unliquidated damages to Lawson without supporting evidence and without conducting a hearing. Silverado challenges Lawson's evidence as conclusory, hearsay, and failing to establish a causal nexus between Lawson's injuries and Silverado's conduct. We construe Silverado's arguments to be that (1) Lawson failed to put forth competent evidence to support his alleged damages, (2) such evidence failed to establish a causal nexus between ...


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