Ruth V. Thrasher v. Asako Cole--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00616-CV
Ruth V. THRASHER,
Appellant
v.
Asako COLE,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-12240
Honorable Rene Diaz, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: November 14, 2007

 

REVERSED AND REMANDED

This is an appeal of a post-answer default judgment in a landlord-tenant dispute. The trial court found in favor of Asako Cole, the tenant, and against Ruth V. Thrasher, the landlord. In three issues on appeal, Thrasher contends that the trial court erred in granting the post-answer default judgment. We agree and therefore reverse the trial court's judgment.

Factual and Procedural Background

Asako Cole rented trailer space from Ruth V. Thrasher. However, when Cole fell behind on the rent, Thrasher instituted eviction proceedings against her and obtained a writ of possession. Pursuant to the writ, Cole's two trailers were moved by Thrasher and stored. According to Cole, during execution of the writ, she was given only ten minutes to remove any personal belongings from the trailers and was therefore unable to retrieve some of her possessions until several months later. She then sued Thrasher for conversion of her property and negligence in safeguarding her property once it was removed. In her lawsuit, she named as defendants both Thrasher and George Mayberry, individually and doing business as Ray's Transports, whom she alleged acted as Thrasher's agent in converting the trailers and in negligently failing to safeguard their contents after removal.

Although the case was set for trial on March 7, 2006, Mayberry did not appear in person or by counsel. Likewise, Thrasher did not appear in person; however, unlike Mayberry, Thrasher's attorney, James Rodriguez, did appear. Because his client was not present, Rodriguez orally requested a continuance. His request, however, was denied. Instead, the trial court granted a post-answer default judgment against both Mayberry and Thrasher. According to the trial court, it was granting the default judgment because Mayberry and Thrasher had failed to appear for trial and had not offered excuses for such failure to appear. The trial court then heard testimony from Cole, whose primary language is Japanese. However, because of Cole's difficulties speaking English, the trial court was unable to understand her. Thus, after determining that no interpreter was available, the trial court decided to continue the case.

At the next trial setting on March 15, 2006, the parties appeared before the same trial judge, and an interpreter was present. Both Thrasher and her attorney were present at this setting. However, despite Thrasher being present, the trial court explained that because it had previously held Thrasher in default for failing to appear on March 7, 2006, and because Thrasher had not given an explanation for such failure, it was limiting Thrasher's testimony to whether she had received notice of the first trial setting. Thrasher then testified that she had not received notice of the March 7, 2006, setting.

At the end of the hearing on March 15, 2006, the trial court re-set the case for another hearing for the purpose of allowing Thrasher to make an offer of proof concerning her defenses to the merits of the suit. That hearing was held on May 5, 2006. After allowing Thrasher to make her offer of proof, the trial court entered judgment against Mayberry and Thrasher jointly and severally in the amount of $7,849 plus interest and costs. Thrasher then filed a motion for new trial, which was overruled by operation of law. Mayberry did not appeal; therefore, we limit our consideration on appeal to Thrasher's complaints of the trial court's judgment.

Discussion

Thrasher brings three issues on appeal, all relating to whether the trial court properly granted a post-answer default judgment against her. Thrasher's issues are the following: (1) whether it was error to grant a judgment prior to hearing proof of Cole's claims; (2) whether it was error to grant a judgment after Thrasher testified that she had not received notice of the trial setting; and (3) whether Thrasher's testimony could properly be excluded as a sanction.

Beginning with issue three, it is clear from the record that the trial court did not impose sanctions on Thrasher. Instead, the trial court precluded Thrasher from testifying or from presenting a defense because it had granted a post-answer default judgment against her. Thus, Thrasher's third issue is overruled.

With regard to Thrasher's two other issues, Cole concedes in her Appellee's Brief that the trial court did in fact err in granting the post-answer default judgment. Cole cites to the record of the first trial setting on March 7, 2006, in which Thrasher did not personally appear but in which her counsel did. After denying Thrasher's attorney's motion for continuance, the trial court stated, "Let's just do a default, a judgment by default. So let's prove up your default." And to clarify, the trial court further stated to Thrasher's attorney, "I just granted a default judgment against your client for not showing up at trial without any excuse." Cole admits in her brief that "[t]his was a mistake," and cites Texas Rules of Civil Procedure 7 for support. Rule 7 provides, "Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court." Tex. R. Civ. P. 7. Thus, whether it was error for the trial court to enter the default judgment prior to hearing Cole's evidence or after hearing Thrasher's testimony regarding lack of notice is irrelevant. It was, as Cole concedes, error for the trial court to enter a post-answer default judgment when Thrasher was, in fact, represented at trial by her attorney.

Although Cole concedes that the trial court erred in entering the post-answer default judgment, Cole nevertheless maintains that the error was harmless. In support of this argument, Cole argues that she proved her cause of action by testifying (1) to all necessary elements of conversion and negligence and (2) to damages in the amount of at least $7,849. Further, Cole emphasizes that Thrasher was allowed to make an offer of proof and that, in that offer of proof, Thrasher failed to contradict Cole's account of the condition and value of the property but rather simply contested the number of items recovered and the titles to the trailers themselves.

We disagree with Cole's argument that the trial court's granting of the post-answer default judgment against Thrasher was harmless error. Although Thrasher was allowed to make an offer of proof, she was prevented from fully participating at trial. The first trial setting was continued, not because Thrasher was not present, but because Cole was unable to present her evidence, not having a Japanese interpreter available. At the second trial setting, Thrasher was present, personally and through counsel. Because the trial court should not have granted the post-answer default judgment against Thrasher at the first trial setting, Thrasher should have been allowed to fully defend herself at the second trial setting. However, because the trial court had erroneously entered a default judgment against her, she was precluded from presenting any defense. Allowing Thrasher to make an offer of proof at a later time, after a default judgment had been granted against her, cannot cure the harm that resulted from the trial in which she was not allowed to fully participate and present evidence.

Moreover, even if we consider Thrasher's offer of proof as a sufficient substitute for her inability to defend herself at the trial on the merits, we cannot say the error was harmless. The record reveals that during her offer of proof Thrasher stated she had not wrongfully taken Cole's property. Further, the record also demonstrates that Thrasher contended she in fact had a legal right to take Cole's property. Thus, while Cole contends that Thrasher offered nothing to rebut the elements of conversion, Thrasher's statement that she did not wrongfully take Cole's property is in direct contradiction of one of the necessary elements of conversion.

Further, with regard to Cole's negligence claim, Thrasher stated that she stored Cole's property "so that nothing would happen to it." This statement is significant in light of Cole admitting during cross-examination that she had no pictures of the allegedly damaged property. From these statements of the respective parties, it is clear that had Thrasher had the benefit of a full defense on the merits, she would have attempted to establish that even if she had assumed a legal duty to Cole by storing Cole's property, Cole could not prove the damages she alleged. Also, Thrasher contested the number of items at issue, thus also putting at issue the amount of damages for which she could be held responsible. Thus, although Cole contends that Thrasher stipulated to the amount of damages as set forth on a written list, it is not entirely clear that Thrasher conceded to the value of the items on the list. The record reveals only that Thrasher agreed the math was correct. Therefore, Thrasher's account of the events, as shown in her offer of proof, could have affected the outcome of the trial had she been allowed to testify at the trial on the merits. The error was not harmless.

Conclusion

Because the trial court erred in granting a post-answer default judgment against Thrasher, and because such error was not harmless, we reverse the trial court's judgment and remand the cause for a new trial.

Karen Angelini, Justice