John T. Cooper v. Robin Parras ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-271-CV
JOHN T. COOPER APPELLANT
V.
ROBIN PARRAS APPELLEE
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant John T. Cooper, pro se, appeals a default judgment granted
against him and in favor of Appellee Robin Parras. Cooper contends in two
issues that the trial court did not have jurisdiction to grant default judgment
against him because the underlying motor vehicle accident occurred one day
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… See Tex. R. App. P. 47.4.
after the date alleged in the original petition and that his Texas and United
States constitutional rights were violated. We affirm.
II. Factual and Procedural Background
According to Parras’s original petition, Cooper and Parras were involved
in a motor vehicle collision on or about May 6, 2007, at 12:10 a.m. in Tarrant
County, Texas. The citation issued to Cooper is dated May 7, 2007, and the
police report is also dated May 7, 2007. Parras’s original petition, however,
stated that the accident took place “on or about” May 6, 2007. Parras suffered
bodily injury, and the motor vehicle owned and operated by Parras was
damaged.
On February 2, 2009, Parras filed an original petition against Cooper, and
a citation was issued. On February 24, 2009, Cooper was served with the
citation, a copy of Parras’s petition, requests for production, admissions, and
disclosures, and interrogatories. The deadline for Cooper to file an answer was
March 9, 2009. Cooper failed to file an answer or timely file responses to
Parras’s discovery requests. On March 19, 2009, Parras filed a motion for
default judgment, and the trial court set the matter for hearing. Cooper failed
to appear for the hearing, and the trial court determined that it had jurisdiction
over the subject matter and the parties, granted Parras’s motion, and entered
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default judgment for $10,419.18 on March 31, 2009. Cooper then timely filed
this appeal.
III. Jurisdiction
In his first issue, Cooper argues that the trial court had no jurisdiction
over him because the motor vehicle accident happened one day after the date
alleged in the petition. In response, Parras argues that the trial court did not err
in determining that it had jurisdiction to grant default judgment against Cooper
because Cooper presents no evidence to support the claim that a possible one-
day discrepancy in the date of the accident would have any effect on the trial
court’s jurisdiction.
A. Applicable Law
“Jurisdiction” refers to a court’s authority to adjudicate a case. See Reiss
v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). Whether a trial court has
jurisdiction is a question of law. See BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). On direct appeal from a default
judgment, the record must affirmatively show that the trial court had personal
jurisdiction over the defendant. Whitney v. L & L Realty Corp., 500 S.W.2d 94,
97 (Tex. 1973); NBS S., Inc. v. Mail Box, Inc., 772 S.W.2d 470, 471 (Tex.
App.—Dallas 1989, writ denied). Two essential elements of personal
jurisdiction are that the defendant must be amenable to the court’s jurisdiction
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and that the plaintiff must invoke jurisdiction by valid service of process on the
defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex.
1985); NBS S., Inc., 772 S.W.2d at 471. Independent proof that the proper
agent was served is required to establish proper service of process. See NBS
S., Inc., 772 S.W.2d at 471; Hanover Modular Homes v. Corpus Christi Bank
& Trust, 476 S.W.2d 97, 99 (Tex. Civ. App.—Corpus Christi 1972, no writ).
At any time after a defendant is required to answer, the plaintiff may take a
default judgment if no answer is filed, provided that the citation with the
officer’s return thereon has been on file with the clerk for ten days, exclusive
of the day of filing and the day of judgment. See Tex. R. Civ. P. 107.
B. Analysis
Cooper was properly served with a citation and a copy of plaintiff’s
petition by personal service. The record affirmatively shows that Philip R.
Thorne, Jr., a duly authorized process server, received the documents on
February 17, 2009, at 10:00 a.m. He served John T. Cooper at his home
address, in person, on February 24, 2009, at 1:45 p.m., with a true copy of the
citation, together with a copy of the original petition with the date of service
marked thereon; the requests for production, admissions, and disclosures and
interrogatories were attached. The citation and proof of service were filed with
the clerk of the court on March 4, 2009, and had been on file at least ten days,
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excluding the day of filing and the day Parras filed the motion for default
judgment. Indeed, Cooper does not deny that he was properly served or that
he did not file an answer. And the record affirmatively shows that Cooper was
properly served with citation and failed to answer and that the trial court had
jurisdiction to enter the default judgment. See Kawasaki Steel Corp., 699
S.W.2d at 200.
Cooper argues that there was no jurisdiction because the motor vehicle
accident happened one day after the date alleged in the original petition, but he
presents no citation to the appellate record or to legal authority supporting his
contention. See Tex. R. App. P. 38.1(h) (requiring an appellant’s brief to
contain appropriate citations to authorities and to the record). Because the
record affirmatively shows that Cooper was properly served with the citation
and a copy of Parras’s petition by personal service and failed to answer, and
because Cooper has not adequately briefed his contention that the allegedly
incorrect date stated in the original petition deprived the trial court of
jurisdiction, we conclude that the trial court did have jurisdiction and overrule
Cooper’s first issue.
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IV. Violation of Cooper’s Constitutional Rights
In his second issue, Cooper contends that the default judgment against
him was a violation of his United States and Texas constitutional rights.
A pro se litigant is held to the same standards as licensed attorneys and
must comply with applicable laws and rules of procedure. Mansfield State Bank
v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (holding that litigants who
represent themselves must comply with the applicable procedural rules, or else
they would be given an unfair advantage over litigants represented by counsel)
(citing Stein v. Lewisville Indep. Sch. Dist., 481 S.W.2d 436, 439 (Tex. Civ.
App.—Fort Worth 1972, writ ref’d n.r.e.), cert. denied, 414 U.S. 948 (1973));
Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004,
pet. denied).
Under rule 38.1(h) of the Texas Rules of Appellate Procedure, every
appellant’s brief must contain a clear, concise argument in support of his
contention, including appropriate citations to authorities and to the record. Tex.
R. App. P. 38.1(h). By raising an issue and failing to present any argument or
authority on that issue, the party waives that issue. Doe v. Tarrant County
Dist. Attorney’s Office, 269 S.W.3d 147, 157 (Tex. App.—Fort Worth 2008,
no pet.). Cooper’s brief does not include citations to authority or the appellate
record, nor does his brief even identify the provisions of the United States or
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Texas constitutions he claims were violated. Therefore, Cooper has waived his
constitutional arguments on appeal, and we overrule his second issue.
V. Conclusion
Having overruled each of Cooper’s issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: July 29, 2010
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