Minh Tran v. Hong Kong Development Corp. A/K/A Hong Kong City Mall ( 2014 )

Opinion issued August 26, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00613-CV
———————————
MINH TRAN, Appellant
V.
HONG KONG DEVELOPMENT CORP. A/K/A HONG KONG CITY MALL,
Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2009-23,479
MEMORANDUM OPINION
Minh Tran is appealing the trial court’s take-nothing-judgment rendered on a
jury verdict in his slip-and-fall case against Hong Kong Development Corp. In six
issues, Tran contends that the trial court erred in granting HKDC’s motion to
extend the post-judgment deadlines based on Texas Rule of Civil Procedure 306a,
and that the trial court erred when it denied his post-trial motion to vacate the
judgment. Finding no error in the trial court’s judgment, we affirm.
Background
Tran slipped and fell while visiting HKDC’s shopping mall in July 2008.
Two months later, Tran made a demand against HKDC for injuries he sustained as
a result of the fall. HKDC’s insurer investigated, interviewed witnesses, reviewed
video surveillance of the incident, and ultimately denied the claim in October
2008.
Six months later, Tran sued HKDC in district court for premises liability,
alleging that he suffered a concussion after he slipped on a puddle of water on the
floor of the shopping mall caused by a leak in the roof that HKDC had failed to
repair, and that HKDC failed to either warn him of the danger posed by the puddle
on the floor or correct the danger. Tran served HKDC through its registered agent,
Dan Nip.
When HKDC failed to file an answer or otherwise make an appearance in
the case, Tran moved for default judgment and set the motion for submission. The
certificates of service indicate that Tran sent copies of the motion and notice to
HKDC via its registered agent, Nip, by certified mail, return receipt requested and
by regular mail on July 21, 2009. The trial court granted the motion on August 17,
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2009, and awarded Tran nearly $6 million in damages (including $2 million in
exemplary damages), plus post-judgment interest.
On October 19, 2009, HKDC filed a motion to extend the appellate
deadlines pursuant to Texas Rule of Civil Procedure 306a(5), attaching affidavits
in support, including one from its property manager and authorized representative,
James Duong. James testified in his affidavit that he is HKDC’s property manager
and its “authorized representative.” He further testified that he receives all of the
mail addressed to HKDC as part of his duties as property manager and that HKDC
did not acquire actual knowledge of the default judgment until October 13, 2009––
the date James received an October 8, 2009 letter from Tran’s counsel attempting
to collect on the judgment. James further testified that HKDC had not received a
copy of the signed judgment, or otherwise received any other form of official
notice of the judgment from the clerk’s office prior to that date.
HKDC also attached affidavits from its attorney in support of the motion in
which the attorney testified that he did not know about the default judgment until
HKDC’s insurance carrier hired his firm to represent HKDC in this matter on
October 14, 2009. HKDC’s attorney also testified that he and his associate had
contacted Nip and Nip told them that he first learned of the default judgment
sometime between October 9, 2009 and October 13, 2009, when he received
the October 8, 2009 letter from Tran’s counsel. Nip also informed him that he did
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not receive any notice of the default judgment from the district clerk’s office
prior to receiving the October 8, 2009 letter, and that he had no communications
with Tran’s counsel regarding entry of a judgment. Although Nip initially
agreed to sign an affidavit attesting to those facts, he subsequently informed
counsel that he had changed his mind and he indicated that counsel should speak to
James, HKDC’s property manager, “about the potential value of the affidavit” to
HKDC, and that he would not sign the affidavit unless he received substantial
compensation for his efforts.
On October 22, 2009, HKDC filed an original answer, as well as a motion to
set aside the default judgment, motion for new trial, or alternative motion for
remittitur.
On November 18, 2009, HKDC filed a reply to Tran’s response to the Rule
306a motion with additional affidavits, including one from HKDC’s sole owner,
Ha Duong, James’s mother. Like her son, Ha testified that she did not acquire
actual knowledge of the default judgment until October 13, 2009, when she
received a letter from Tran’s counsel. According to Ha, HKDC was not then
represented by an attorney. She further testified that HKDC had not received a
copy of the signed judgment, or any other official notice from the clerk’s office
regarding the judgment, prior to October 13, 2009.
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On November 20, 2009 and December 11, 2009, the trial court held hearings
on HKDC’s Rule 306a motion. During the hearing, HKDC’s former registered
agent Nip testified 1 that he did not remember ever receiving official notice of the
default judgment from the clerk’s office, and that he did not have actual awareness
of the judgment until he received Tran’s counsel’s October 8th letter. Specifically,
Nip testified that his office is in the same building as HKDC’s office and that even
though he had not done any accounting work for HKDC in over ten years, it was
his practice to sign for any certified mail sent to him, as their registered agent, and
deliver any mail he received for HKDC—certified or otherwise—by bringing the
mail to HKDC or slipping the mail under HKDC’s door. According to Nip, he did
not read the mail, he only delivered it.
After considering the motion, the evidence, and the record, the trial court
found that HKDC did not receive notice of the August 17, 2009 default judgment
within twenty days of the signing of that judgment and that HKDC “first acquired
actual knowledge of the Court’s August 17, 2009 default judgment on October
13, 2009, which is within 90 days of the signing of the judgment.” Accordingly,
the trial court granted HKDC’s Rule 306a motion on December 11, 2009, and
ordered that the post-judgment deadlines were to be calculated from the date
HKDC received actual knowledge of the default judgment—October 13, 2009.
1
Dan Nip was called to testify by Tran, not HKDC.
5
See TEX. R. CIV. P. 306a(4) (stating that if party does not receive notice or acquire
actual knowledge of judgment within twenty days after judgment signed, then date
party receives actual notice becomes starting point from which post-judgment
deadlines run); In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig.
proceeding) (stating that Rule 306a(4)’s date of notice is date from which all post-
judgment deadlines and trial court’s plenary power runs).
The case proceeded to trial a little over three years later, at the conclusion of
which the jury found that HKDC was not liable for Tran’s fall and that Tran was
100% negligent. On April 26, 2013, the trial court rendered a take-nothing
judgment against Tran, based on the jury’s verdict.
Tran then filed several post-judgment motions, including a motion to vacate
all orders after January 11, 2010, including the April 26, 2013 judgment, on the
basis that there was no order granting a new trial filed in the Harris County District
Clerk’s records prior to the expiration of the trial court’s plenary power on January
11, 2010. 2 On July 10, 2013, the trial court signed an order denying all of Tran’s
post-trial motions, including his motion to vacate.
2
If Tran was correct, and the trial court’s plenary power expired in January 2010,
then any action the trial court took on Tran’s motion to vacate the April 2013
judgment would also be void and not reviewable on direct appeal. See In re
Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008) (stating “[m]andamus
relief is appropriate when a trial court issues an order after its plenary power has
expired” because such rulings are void).
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This appeal followed.
Jurisdiction
In his first and third issues, Tran contends that the trial court did not have
jurisdiction to hold a hearing on HKDC’s Rule 306a(5) motion because HKDC
failed to make a prima facie showing of lack of notice. Specifically, Tran argues
that HKDC was required to submit affidavits from all of its corporate officers
alleging the date on which the officers first received a notice of the judgment or
acquired actual knowledge of the signing of the judgment, and that the affidavit of
James, HKDC’s “property manager,” is insufficient to make a prima facie showing
of HKDC’s lack of notice.
Rule 306a(5) requires the party alleging late notice of judgment to file a
sworn motion establishing the date the party or its counsel first learned of the
judgment. TEX. R. CIV. P. 306a(5). Rule 306a(5)’s requirements are jurisdictional.
Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex.
App.—Houston [1st Dist.] 2003, no pet.) (citing Mem’l Hosp. of Galveston Cnty. v.
Gillis, 741 S.W.2d 364, 365 (Tex. 1987)). The sworn motion establishes a prima
If Tran was also correct that no order granting the motion for new trial was signed
prior to 2013, the court’s plenary power would not have expired on January 11,
2010, as Tran contends; it would have expired on February 4, 2010—thirty days
after the October 22, 2009 motion for new trial was overruled by operation of law.
See TEX. R. CIV. P. 329b(c) (stating that timely motion for new trial that has yet to
be determined is overruled by operation of law seventy-five days after judgment),
329b(e) (stating that plenary power extends thirty days after timely motion for new
trial is overruled by written order or operation of law).
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facie case that the party lacked timely notice and invokes a trial court’s
otherwise-expired jurisdiction for the limited purpose of holding an evidentiary
hearing to determine the date on which the party or its counsel first received notice
or acquired knowledge of the judgment. See Lynd, 195 S.W.3d at 685; Cont’l Cas.
Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—Fort Worth 2004, pet. denied).
A Rule 306a(5) motion is timely so long as it is filed prior to the expiration of the
trial court’s plenary power, as measured from the date of notice established under
Rule 306a(4). See Lynd, 195 S.W.3d at 685.
Rule 306a(5) requires “the party adversely affected” to prove “on sworn
motion and notice, the date on which the party or his attorney first either received a
notice of the judgment or acquired actual knowledge of the signing.” TEX. R. CIV.
P. 306a(5). The rules do not require that a corporate officer—much less all of the
corporate officers—of an incorporated defendant submit sworn testimony on this
issue. See Gee v. Lewisville Mem’l Hosp., Inc., 849 S.W.2d 458, 460 (Tex. App.—
Fort Worth 1993, writ denied) (holding unsworn motion with attached sworn
affidavit from corporate defendant’s agent sufficient to make prima facie showing
of lack of notice). Indeed, the rules of civil procedure expressly provide that a
party’s affidavit “may be made by either the party or his agent or his attorney.”
TEX. R. CIV. P. 14 (emphasis added). The term “agent” means a “person or
business authorized to act on another’s behalf.” Columbia Rio Grande Healthcare,
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L.P. v. Hawley, 284 S.W.3d 851, 863 (Tex. 2009) (quoting dictionary definition of
“agent”).
Here, James testified in his affidavit that he is HKDC’s property manager
and its “authorized representative” (i.e., HKDC’s agent for purposes of the
motion). See Hawley, 284 S.W.3d at 863 (defining “agent” as “person or business
authorized to act on another’s behalf”). James, who receives all of the mail
addressed to HKDC as part of his duties as property manager, testified that HKDC
did not acquire actual knowledge of the default judgment until October 13, 2009––
the date James received a letter from Tran’s counsel attempting to collect on the
judgment. James further testified that HKDC had not received a copy of the signed
judgment, or otherwise received any other form of official notice of the judgment
from the clerk’s office prior to that date. James’s sworn testimony is sufficient to
establish a prima facie case of lack of notice. See Gee, 849 S.W.2d at 460 (sworn
affidavit from corporate defendant’s agent sufficient to make prima facie showing
of lack of notice under Rule 306a). Moreover, the affidavit from HKDC’s sole
owner, Ha, which was attached to HKDC’s reply to Tran’s response to the Rule
306a motion filed on November 18, 2009, was also sufficient to make a prima
facie showing of lack of notice. See, e.g., Lynd, 195 S.W.3d at 685–86 (holding
Rule 306a(5) motion timely so long as it is filed prior to expiration of trial court’s
plenary power, as measured from date of notice established under Rule 306a(4)
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and holding affidavits from defendant company’s president, his secretary,
company’s corporate representative, and its attorney were sufficient to make prima
facie showing of lack of notice).
Accordingly, the trial court had jurisdiction to determine the date of notice
for purposes of Rule 306a(4).
We overrule Tran’s first and third issues.
Rule 306a(5) Motion to Extend Appellate Deadlines
In his second and fourth issues, Tran contends that the court, even assuming
the trial court had jurisdiction, nevertheless erred in granting HKDC’s Rule 306a
motion because (1) HKDC failed to tender any evidence at its Rule 306a hearing
and failed to refute evidence of receipt of the postcard by HKDC; and (2) the
primary case 3 relied on by HKDC and by the trial court for the proposition that a
party and a party’s registered agent are not the same thing with respect to notice of
a default judgment, is not binding precedent and does not modify the finality of the
default judgment. We construe these arguments as a challenge to the legal and
factual sufficiency of the evidence supporting the trial court’s granting of HKDC’s
Rule 306a motion.
Post-judgment procedural timetables run from the day a party receives
official notice or actual knowledge of the judgment, rather than the day the
3
See Buddy “L”, Inc. v. Gen. Trailer Co., 672 S.W.2d 541, 545 (Tex. App.—Dallas
1984, writ ref’d n.r.e.).
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judgment is signed, if the party: (1) complies with the sworn motion, notice, and
hearing requirements mandated by Rule 306a(5), and (2) proves it received notice
of the judgment more than twenty but less than ninety-one days after it was signed.
TEX. R. CIV. P. 306a(4), (5). An appellate court reviews the trial court’s Rule 306a
findings, including the date a party is found to have received notice of judgment,
for legal and factual sufficiency. Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex.
App.—Houston [1st Dist.] 2004, no pet.); Hot Shot Messenger Serv., Inc. v. State,
798 S.W.2d 413, 414–15 (Tex. App.—Austin 1990, writ denied). As the
factfinder, the trial judge weighs the evidence and judges a witness’s credibility,
and the judge may accept or reject any witness’s testimony in whole or in part.
See Texaco, Inc., 137 S.W.3d at 768. The trial court enjoys “great latitude” with
regard to the resolution of fact issues raised in the context of a Rule 306a motion.
See id.
Here, HKDC submitted affidavits from its authorized agent, James, and its
sole owner, Ha, testifying that HKDC (1) did not acquire actual knowledge of the
default judgment until October 13, 2009––the date James received a letter from
Tran’s counsel attempting to collect on the judgment and (2) had not received a
copy of the signed judgment, or otherwise received any other form of official
notice of the judgment from the clerk’s office prior to that date. This testimony is
uncontradicted. Thus, contrary to Tran’s position, HKDC did rebut the
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presumption that it received notice of the default judgment. See id. (stating denial
of receipt of notice of default judgment sufficient to rebut presumption, but not
conclusive, and merely presents fact issue for factfinder). As such, it was
incumbent upon Tran to adduce evidence corroborating his claim that HKDC
received notice of judgment. See Davilla, 139 S.W.3d at 379–80 (stating that once
defendant rebuts presumption, plaintiff must come forward with corroborating
evidence). Tran, however, made no attempt to submit any evidence to support his
claim that HKDC had received notice (i.e., sworn affidavits or live testimony from
someone in clerk’s office, or copy of the clerk’s notice or return receipt). Cf.
Texaco, Inc., 137 S.W.3d at 768 (plaintiff called witnesses from clerk’s office to
testify during Rule 306a hearing regarding process of generating notice of default
and subsequent mailing procedures to counter defendant’s testimony that it did not
receive clerk’s notice).
Although Tran contends that the uncontradicted affidavits attached to
HKDC’s Rule 306a motion are insufficient and must be accompanied by live
testimony in order for HKDC to meet its burden of proof, the case law does not
support such a proposition. See generally Strackbein v. Prewitt, 671 S.W.2d 37,
38–39 (Tex. 1984) (affirming appellate court’s reversal of trial court’s denial of
motion for new trial challenging default judgment based upon uncontroverted
factual allegations in affidavits attached to motion for new trial); Womack–
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Humphreys Architects, Inc. v. Barrasso, 886 S.W.2d 809, 816 n.9 (Tex. App.—
Dallas 1994, writ denied), overruled on other grounds by John v. Marshall Health
Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001) (“[A]t any rule 306a hearing the trial
court is free to believe or disbelieve a movant’s jurisdictional evidence or believe
or disbelieve the nonmovant’s contradicting evidence. However, absent a hearing,
the trial court is bound to accept the movant’s sworn affidavit as true.”).
However, even if live testimony was required, the record reflects that Nip,
HKDC’s former registered agent, testified during the Rule 306a hearing as to his
practice to sign for any certified mail sent to him, as HKDC’s registered agent, and
deliver all the HKDC mail—certified or otherwise—to HKDC. According to Nip,
he only delivered the mail, and neither opened nor read it unless it was already
opened when presented to him for his signature. Nip further testified that he did
not remember receiving official notice of the default judgment from the clerk’s
office and was without any actual awareness of the judgment until receipt of the
October 8th letter from Tran’s counsel. Thus, between the sworn affidavits and
testimony at the hearing, the evidence before the trial court was that neither HKDC
nor Nip, its registered agent, received official notice from the clerk or otherwise
had actual knowledge of the judgment until after twenty days from the date the
court signed the judgment.
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Because Nip’s testimony established that he received no notice within
twenty days of the judgment, we need not consider Tran’s fourth issue (i.e.,
whether a particular case relied upon by HKDC and the trial court is binding
precedent) or the question of whether notice of a default judgment to a party’s
registered agent constitutes notice to the party for purposes of Rule 306a.
We overrule Tran’s second and fourth issues.
Denial of Appellant’s Post-Trial Motion to Vacate
In his fifth and sixth issues, Tran contends that the trial court erred when it
denied his post-trial motion to vacate the judgment because (1) there was no order
signed by the trial court granting the motion for new trial before the court’s plenary
power expired on January 11, 2010, and (2) although HKDC tendered an unofficial
copy of a December 28, 2009 “order” purporting to grant a new trial, appellee
failed to comply with Rule of Civil Procedure 77 regarding treatment of “lost”
documents.
A court’s ruling on a motion to vacate, like a ruling on a motion for new
trial, is reviewed for abuse of discretion. EnviroPower, LLC v. Bear, Stearns &
Co., 265 S.W.3d 16, 19 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
Here, Tran argued in his motion to vacate that there was no signed order
granting the motion for new trial before expiration of the court’s plenary power
and, because HKDC failed to comply with Rule of Civil Procedure 77 regarding
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treatment of “lost” documents, the court could not rely on the unofficial copy of
the “order” HKDC attached to its response to the motion to vacate. See TEX. R.
CIV. P. 77 (stating that if papers or records are lost or destroyed during pendency of
a suit, trial court may, on agreement of parties or on sworn motion and hearing,
substitute copy for lost or destroyed original document and have copy filed with
clerk). HKDC maintained that Rule 77 was inapplicable because the December
order was never “lost.” Notably, the supplemental clerk’s record, certified by the
District Clerk’s office, contains a signed order dated December 28, 2009 that
vacates the August 17, 2009 default judgment, grants a new trial, and reinstates the
case on the court’s docket.
On July 10, 2013, the trial court signed an order denying Tran’s post-trial
motions, including his motion to vacate the April 26, 2013 judgment and his
motion “Seeking Court Assistance to Investigate the Recently Filed Document
from Defendant which Purports to be an Order Granting a New Trial.” It is
undisputed that HKDC did not attempt to comply with Rule 77. Therefore, the
trial court’s denial of Tran’s post-judgment motions is treated as its implied finding
that Rule 77 was, in fact, inapplicable (i.e., that the order was not “lost”) and that a
signed order granting the motion for new trial was on file in the clerk’s office prior
to the expiration of the trial court’s plenary power. Cf. In re C.H.C., 396 S.W.3d
33, 41 (Tex. App.—Dallas 2013, no pet.) (stating authenticity of copy of “lost”
15
order is fact issue for trial court); In re Taylor, 113 S.W.3d 385, 391 (Tex. App.—
Houston [1st Dist.] 2003, orig. proceeding) (“Whether the order had been signed
was a matter entrusted to the sound discretion of the trial court, and we hold that
the trial court did not abuse its discretion by determining that the order had been
lost and by entering an order to substitute a re-executed order granting a new trial
for that lost order.”).
We overrule Tran’s fifth and sixth issues.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
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