Patrick B. Alexander v. Josephine Alexander ( 2011 )

Reversed and Remanded in Part and Affirmed in Part and Memorandum Opinion filed March 29, 2011

In The

Fourteenth Court of Appeals

NO. 14-09-01092-CV

Patrick B. Alexander, Appellant

v.

Josephine Alexander, Appellee

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 2009-14505

MEMORANDUM OPINION

            In this appeal from a post-answer default judgment of divorce, appellant Patrick B. Alexander contends the trial court erred by denying his motion for new trial because his failure to appear for trial was unintentional, he has a meritorious defense, and granting the motion would not cause undue delay or injury to appellee Josephine Alexander.  Additionally, he contends the evidence is legally insufficient to support the judgment dividing the property, providing spousal maintenance, and awarding attorney’s fees to Josephine.  Because we agree that the evidence is legally insufficient to support those portions of the judgment, we reverse in part and remand this case to the trial court for further proceedings consistent with this opinion.  We affirm the remainder of the judgment.

I

            Josephine and Patrick were married in 1984 and had three children.[1]  The parties separated in January 2004.[2] Josephine filed for divorce in April 2009, and Patrick filed an answer.  The case was set for trial in September 2009, but the parties entered into a Rule 11 agreement to reset the case for November 9, 2009.[3]  Josephine also amended her petition for divorce. 

            On November 9, 2009, Josephine and her attorney, Ms. Karen George-Baunchand, appeared for trial.  Neither Patrick nor his attorney, Ms. Bonnie Fitch, appeared for trial.  At the trial court’s instruction, the court coordinator to attempt to contact Ms. Fitch, but she did not answer the phone.  Ms. George-Baunchand represented that her office also had attempted to contact Fitch, but without success.  The trial court granted Josephine a divorce by default judgment at the conclusion of the hearing, and signed a final decree of divorce on November 20, 2009. 

            The day after the trial, on November 10, 2009, Patrick moved to set aside the default judgment.  In the motion, Patrick asserted that both parties’ attorneys had agreed to reset the trial date to February 8, 2010, and Josephine’s attorney, Ms. George-Baunchand, was to confirm the date with the court and to prepare and file a Rule 11 agreement to be signed with Fitch’s permission.  The motion was supported by Ms. Fitch’s affidavit.  Patrick also filed a motion for new trial, which was supported by a similar affidavit by Ms. Fitch.

            In response, Josephine filed a motion opposing Patrick’s motion to set aside the default judgment and for new trial.  Josephine’s motion was supported by several affidavits controverting Ms. Fitch’s statements.  First, Ms. George-Baunchand averred that Fitch called her on November 5 and requested a continuance because she had not heard from her client in two or three months and had been unable to reach him.  George-Baunchand told Fitch that she would agree to a continuance if Josephine did not object.  George-Baunchand’s legal assistant, Michele Hardy, attempted to contact Josephine, but was unable to reach her and so left her a message to call George-Baunchand.  Josephine returned the call later that night, and told George-Baunchand that she refused to agree to a continuance under any circumstances, and noted that Patrick and his attorney had failed to appear on three earlier occasions.  Both George-Baunchand and Hardy attempted to contact Fitch the next day to let her know that Josephine would not agree to a continuance, but they were unable to reach her.  Both Hardy and Josephine also provided supporting affidavits.

            On December 1, 2009, the trial court held a hearing on the motion for new trial.  The attorneys for both parties argued their positions, and Josephine, Patrick, and Hardy testified.  At the conclusion of the hearing, the trial court noted that the parties had a Rule 11 agreement setting a November 9 trial date, the court had heard the case on that date, and neither the court coordinator nor Ms. George-Baunchand were able to contact Fitch on that date.  The trial court then overruled the motion for new trial.  This appeal followed.

II

            Patrick first contends the trial court erred when it denied his motion for new trial because his failure to appear was neither intentional nor amounted to conscious indifference, he has a meritorious defense, and granting the motion would not cause delay or otherwise injure Josephine.  Specifically, Patrick asserts that his failure to appear for the November 9 trial date was due to the mistaken belief that Josephine’s counsel wanted to reset the date to the next year because she was scheduled to take two bar exams in other states and needed the time to prepare.  Patrick points to Hardy’s testimony at the hearing on the motion for new trial that Hardy overheard the conversation between Fitch and George-Baunchand, which was on speakerphone, and recalled hearing George-Baunchand state that she was preparing to take two bar exams in two different states next year, and so would not be available for the remainder of 2009. 

A

            A trial court’s order denying a motion to set aside a default judgment or for new trial is reviewed under an abuse-of-discretion standard.  Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Martinez v. Martinez, 157 S.W.3d 467, 469 (Tex. App.—Houston [14th Dist.] 2004, no pet).  The trial court abuses its discretion if it acts without reference to any guiding rules or principles.  Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).

            In Craddock v. Sunshine Bus Lines, Inc., the Texas Supreme Court outlined a three-part test for determining whether a default judgment should be set aside and a new trial ordered.  134 Tex. 388, 133 S.W.2d 124 (1939).  Under Craddock, the defendant must demonstrate the following:  (1) his 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.  Id. at 126; Ashworth v. Brzoska, 274 S.W.3d 324, 328–29 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  The Craddock requirements apply to post-answer default judgments.  Ivy v. Carrell, 407 S.W.2d 212, 214–15 (Tex. 1966).  The trial court abuses its discretion in denying a motion for new trial if all of the Craddock elements are met.  Bank One, Tex., N.A., v. Moody, 830 S.W.2d 81, 85 (Tex. 1992).

B

            Under the first Craddock element, the trial court was required to determine whether Patrick’s failure to appear at trial was either intentional or the result of conscious indifference on his part.  See Craddock, 133 S.W.2d at 126; Martinez, 157 S.W.3d at 470.  In making this determination, a court must look to the knowledge and acts of the defendant.  Director, State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). If the factual assertions in the defendant’s affidavit are not controverted by the plaintiff, the defendant satisfies his burden if his affidavit sets forth facts that, if true, negate intentional or consciously indifferent conduct by the defendant.  Id.  In determining if the defendant’s factual assertions are controverted, the court looks to all the evidence in the record.  Id.  The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  Martinez, 157 S.W.3d at 470.

            The record reflects that that the parties had a Rule 11 agreement setting the trial date for November 9, 2009, and, consistent with this agreement, the trial court proceeded with the trial that day.  Fitch contends she understood that the parties had agreed to reset the November 9 trial date and that George-Baunchand would file a Rule 11 agreement to that effect.  George-Baunchand disputes that there was any agreement to reset the trial date or that she would file any Rule 11 agreement.  Further, she contends it was Fitch who initially requested the continuance because she had been unable to reach Patrick for some time.  Rule 11 provides:  “[u]nless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”  Tex. R. Civ. P. 11.  The record contains no Rule 11 agreement signed by the parties regarding the resetting of the trial date from November 9 to a later date, and no such announcement was made in open court.

            Conscious indifference has been defined as the failure to take some action that would seem obvious to a reasonable person under similar circumstances.  Prince v. Prince, 912 S.W.2d 367, 370 (Tex. App.—Houston [14th Dist.] 1995, no writ). Under these circumstances, it would seem obvious to a reasonable party seeking or agreeing to reschedule a trial date to prepare or review and sign any Rule 11 agreement, or to at least confirm that the alleged Rule 11 agreement had been filed before the start of the trial.  We cannot say that the trial court abused its discretion in overruling the motion for new trial in the absence of a Rule 11 agreement signed and filed with the court.  And although the evidence is conflicting concerning whether the parties’ attorneys reached an agreement, the trial court is the final judge of the witnesses’ credibility.  See Martinez, 157 S.W.3d at 471.  The trial court could have reasonably concluded that Fitch, not George-Baunchand, requested the continuance and that George-Baunchand did not agree to any continuance because Josephine was opposed to it.  Further, there is at least some evidence that Patrick was partially responsible for his failure to appear, either intentionally or through conscious indifference, based on George-Baunchand’s averment that Fitch sought the continuance because she had been unable to reach Patrick for several months and Josephine’s testimony that Fitch and Patrick had failed to appear in court on three other occasions. 

            Thus, under the facts of this case, the trial court could have determined that Patrick failed to satisfy the first prong of the Craddock test, and therefore the trial court did not abuse its discretion in overruling the motion for new trial on this ground.

III

            Our conclusion that the trial court did not abuse its discretion to the extent it determined that Patrick failed to satisfy the Craddock test, however, does not end our inquiry.  Although not raised as a separate issue, Patrick’s briefing includes an argument, supported by authorities, that the evidence is legally insufficient to support the trial court’s property division, the award of spousal maintenance, and the award of attorney’s fees to Josephine.  On this point, we agree.

            In the divorce decree, Patrick was awarded the personal property and cash in his possession or subject to his sole control, fifty percent of his retirement benefits, and a vehicle.  Josephine was awarded the family home, all personal possessions and cash in her possession or subject to her sole control, fifty percent of Patrick’s retirement benefits, a vehicle, and all sums in any plans or benefits existing by reason of her past, present, or future employment, as well as any increases, proceeds, and rights related thereto.  The trial court also divided the parties’ debts.  Additionally, the trial court ordered Patrick to pay spousal maintenance of $1,200 per month and Josephine’s attorney’s fees of $7,500.

            A trial court may not render a post-answer default judgment based solely on the plaintiff’s pleadings; the plaintiff is still required to offer evidence and prove all aspects of her case.  Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex. 1994).  When legally insufficient evidence supports a default judgment, the proper remedy is remand, not rendition.  Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam).

            At trial, Josephine testified she and Patrick married in September 1984, and they had three children who were now adults.  She also testified that Patrick abandoned the family home in January 2004 for an adulterous relationship, and he did not provide support to the family after that time.  Josephine asked to be awarded the equity in her home and her vehicles, but she provided no testimony or other financial information concerning the nature or value of the parties’ property or debts.  The substance of Josephine’s testimony, including matters not related to property division, spanned four pages.  George-Baunchand informed the court that Josephine was also seeking spousal maintenance and back child support, but she did not offer any evidence supporting these requests, and we find none in the record.  Further, there was no testimony by either Josephine or George-Baunchand concerning attorney’s fees incurred by Josephine, and no other evidence presented on the attorney’s-fees issue. 

            On this record, therefore, we agree that Josephine failed to present any evidence to support the property division, the award of spousal maintenance, and the award of attorney’s fees.  See Vazquez v. Vazquez, 292 S.W.3d 80, 85–86 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 (Tex. App.—El Paso 2003, no pet.). 

            Accordingly, we reverse those portions of the divorce decree addressing the division of the marital estate, spousal maintenance, and attorney’s fees, and remand this case to the trial court for further proceedings consistent with this opinion.  See Dolgencorp of Tex., Inc., 288 S.W.3d at 930.  In all other respects, the trial court’s judgment is affirmed.

IV

            Finally, we address Josephine’s request that we impose sanctions on Patrick’s attorney, Fitch, for filing a frivolous appeal.  Specifically, Josephine contends that Fitch should be sanctioned for knowingly presenting false and misleading information to the trial court and to this court.  Josephine also asserts that George-Baunchand never told Fitch that she wanted the continuance because she had applied to take the bar exam in other states.  To support her contention that Fitch falsely represented that George-Baunchand was the one who wanted to reset the case to the following February, Josephine directs us to a website she contends shows that most other states’ bar exams occur in February.  Consequently, she argues, it would be “stupid” for a person planning to take the bar exam in February to request a February 8 trial setting. 

            If this court determines an appeal is frivolous, it may, on its own initiative or on motion of any party and after notice and a reasonable opportunity for response, award each prevailing party just damages.  Tex. R. App. P. 45. Whether to grant sanctions for a frivolous appeal is a matter of discretion that this court exercises with prudence and caution and only after careful deliberation in truly egregious circumstances.  Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.—Houston [14th Dist.] 2008, no pet.).   This court has determined that in order to assess sanctions, we must find the appeal to be both objectively frivolous and subjectively brought in bad faith or for the purpose of delay.  See Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 66 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

            As discussed above, the attorneys presented conflicting evidence and arguments concerning whether an agreement was reached to continue the November 9 trial date.  On this record, we cannot say that this case demonstrates a “truly egregious circumstance” warranting sanctions.  Our review of the record and the issues presented does not show that this appeal was taken without sufficient cause and for the purpose of delay.  Moreover, we have determined that Patrick’s appeal, at least in part, is meritorious.  Therefore, we overrule Josephine’s request for sanctions.

***

            Having sustained Patrick’s issue in part, we reverse those portions of the trial court’s judgment addressing the division of the marital estate, spousal maintenance, and attorney’s fees, and remand the case for further proceedings consistent with this opinion.  We affirm the remainder of the judgment.

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Brown, Boyce, and Jamison.

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[1] All of the children were adults at the time of the divorce.

[2] Josephine testified that Patrick abandoned the family home because he was in a adulterous relationship.

[3] The Rule 11 agreement is not in the record, but the trial court referred to the Rule 11 agreement when it set the case to be tried on November 9 by the agreement of the parties’ attorneys.  Patrick’s attorney also acknowledges this Rule 11 agreement in the hearing on the motion for new trial.