Marina De La Garza and Jonathan Wayne Larsen v. Riverstone Apartments--Appeal from County Court at Law No 2 of Bexar County

MEMORANDUM OPINION
No. 04-06-00732-CV
Marina DE LA GARZA,
Appellant
v.
RIVERSTONE APARTMENTS,
Appellee
From the County Court at Law No. 2, Bexar County, Texas
Trial Court No. 318459
Honorable Irene Rios, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: November 7, 2007

 

AFFIRMED

Marina De La Garza appeals the county court's default judgment in a forcible detainer action granting Riverstone Apartments possession of unit 813, her former residence. De La Garza contends she is entitled to a new trial because she was not given proper notice of the trial de novo in the county court of law. Because the record contains no evidence that De La Garza failed to receive proper notice of the trial setting, we affirm the trial court's judgment.

Analysis

A. Failure to Post Supersedeas Bond

Riverstone argues that De La Garza's failure to post a supersedeas bond limits our jurisdiction to the issues of attorney's fees and court costs. An appellant's failure to file a supersedeas bond allows the trial court's judgment to be enforced, including eviction of the tenant. Tex. Prop. Code Ann. 24.007 (Vernon 2003); Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 786 (Tex. 2006). However, a tenant is not required to post a bond to perfect an appeal. Id. Therefore, De La Garza's failure to post a bond "to supersede the judgment did not divest her of her right to appeal." Id. at 786-87; see also Tex. R. Civ. P. 621, 627; Tex. R. App. P. 24, 25.

B. Scope of Review

We are prohibited from deciding moot controversies. National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 363 (Tex. App.--Beaumont 2000, pet. dism'd w.o.j.). A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); James v. Hubbard, 21 S.W.3d 558, 560 (Tex. App.--San Antonio 2000, no pet.). When possession changes hands and there is no basis for a claim of right to possession, the issue of possession becomes moot. Marshall, 198 S.W.3d at 787.

De La Garza timely filed this appeal while she was still in possession of the apartment. "In light of her timely and clear expression of intent to appeal, [De La Garza's] action in giving up possession did not moot her appeal so long as appellate relief was not futile; that is, so long as she held and asserted a potentially meritorious claim of the right to current, actual possession of the apartment." Id.

The original term of De La Garza's lease expired "at midnight the 31st day of December 2006" but "automatically renew[ed] month-to-month unless either party [gave] at least 30 days written notice of termination or intent to move-out as required by paragraph 37." Paragraph 37 required Riverstone to give De La Garza thirty days advance notice to terminate the lease unless De La Garza was in default. Even assuming De La Garza was not in default, Riverstone gave De La Garza "notice to vacate" on August 7, 2006, thereby terminating the lease and eliminating De La Garza's right of possession by September 6, 2006, at the latest. Because De La Garza did not file a supersedeas bond with the trial court to stay the writ of possession, the writ was executed on November 14, 2006. As a result, De La Garza was removed from unit 813 after her lease was terminated by Riverstone's notice. Therefore, De La Garza has no continuing right of possession upon which to base her appeal, and the issue of possession is moot.

Although the issue of possession is moot, issues independent of possession are still reviewable on appeal. Rice v. Pinney, 51 S.W.3d 705, 707 (Tex. App.--Dallas 2001, no pet.). Hence, this court may review the county court's award of attorney's fees and costs because issues relating to that award are independent of possession. See A.V.A. Servs., Inc. v. Parts Indus. Corp., 949 S.W.2d 852, 853 (Tex. App.--Beaumont 1997, no writ) (dismissing two points of error involving possession and deciding the merits of other points); see also Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005) (concluding the entire suit was not moot where a dispute over attorney's fees was a live controversy).

C. Effective Notice

De La Garza claims her due process rights were violated because she did not receive notice of the trial court setting and suffered a post-answer default judgment. Assuming De La Garza's written pleadings in the justice court constituted an appearance in the county court, De La Garza had a constitutional right to notice of all hearings. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989); see also Withrow v. Schou, 13 S.W.3d 37, 39-40 (Tex. App.--Houston [14th Dist.] 1999, pet. denied) (indicating written pleadings of record in the justice court will generally establish an appearance in the county court). "A post-answer default judgment will only be valid if the defendant received notice of the default judgment hearing." $429.30 in U.S. Currency v. State, 896 S.W.2d 363, 366 (Tex. App.--Houston [1st Dist.] 1995, no writ) (citing Matsushita Elec. Corp. of Am. v. McAllen Copy Data, Inc., 815 S.W.2d 850, 853 (Tex. App.--Corpus Christi 1991, writ denied)). However, due process only requires notice, reasonably calculated under the circumstances, to be given. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 82 (1988).

Service of notice is effective by delivery of a copy through certified mail to the party's last known address. Tex. R. Civ. P. 21a. A certificate by a party or attorney of record is prima facie evidence of effective service and creates a presumption that notice of a trial setting was duly received. Id.; Cliff v. Huggins, 724 S.W.2d 778, 780-81 (Tex. 1987). However, this presumption may be rebutted by evidence in the record that notice was not received. Cliff, 724 S.W.2d at 780.

Here, De La Garza offers insufficient proof to rebut the presumption. De La Garza failed to file a sworn affidavit stating she did not receive notice. Instead, the evidence in the record shows two notices of the trial setting were sent to 8711 Cinnamon Creek, Apt. 813 via certified mail, return-receipt requested and via first-class mail. Although the certified mailings were unclaimed at the time of trial, the first class mailings had not been returned. Moreover, in her "Request For Setting For And [sic] Emergency Setting," De La Garza lists her address as "8711 Cinnamon Creek, Apt. 813" in the signature block. De La Garza refers us to the clerk's record for proof that she notified the county court of her post office address; however, one document offered by De La Garza is undated and the other is dated October 25, 2006, twenty days after the default judgment. Because De La Garza fails to rebut the presumption of effective notice with verified proof, we overrule De La Garza's first point of error. See Thomas v. Ray, 889 S.W.2d 237, 238-39 (Tex. 1994) (requiring verified proof to rebut the presumption); Cliff, 724 S.W.2d at 780 (stating "In the absence of evidence to the contrary, the presumption has the force of a rule of law.").

D. Right to New Trial

In her second point of error, De La Garza prays we reverse the trial court's default judgment because she had answered, was entitled to notice of the trial setting, and did not negligently fail to appear. According to the principles set out in Craddock, a default judgment should be set aside when it is demonstrated that: (1) the party's failure to appear was not intentional or the result of conscious indifference; (2) there is a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury to the opposing party. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). When a party fails to receive notice of a trial setting, she satisfies the first prong of the Craddock test and need not meet the remaining prongs to be entitled to a new trial. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam). However, we conclude De La Garza received effective notice of her trial setting and then failed to appear at trial, thus De La Garza must satisfy all of the Craddock factors.

Under Craddock, the defaulting appellant must show she has a meritorious defense to the claims in the suit she is appealing. Craddock, 133 S.W.2d at 126. To establish a meritorious defense, the appellant must assert facts supported by evidence which create a prima facie defense to the appellee's cause of action. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). The defense, if taken as true, must be one that entitles appellant to a different judgment. Id.

The primary issue in a forcible detainer cause of action is the right to possession of the premises. Tex. R. Civ. P. 746; Marshall, 198 S.W.3d at 785. Once De La Garza lost possession of the apartment, the issue of possession became moot. Marshall, 198 S.W.3d at 787 (stating that because appellant lost possession and there was no live controversy between the parties regarding possession, the issue of possession was moot). Because any payment defense goes to the issue of possession--which has become moot--De La Garza would not be entitled to a different judgment even if she prevailed on that defense. Id. at 787-88; see also Ivy, 407 S.W.2d at 214. De La Garza is unable to present a meritorious defense to the issue of possession, and she has presented no defense to the award of attorney's fees and court costs. Accordingly, we overrule her second point of error.

Conclusion

De La Garza received notice, reasonably calculated under the circumstances, to inform her of the trial setting. She failed to appear at trial and a default judgment was taken. Because the issue of possession is moot, De La Garza cannot present a meritorious defense to the forcible detainer cause of action. Therefore, we overrule her points of error and affirm the judgment of the trial court.

 

Catherine Stone, Justice