Leon Mac Hruska and Gail Cocke v. James M. Beardsley and Linda A. Beardsley

Hruska v. Beardsley

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00527-CV

Leon Mac Hruska and Gail Cocke, Appellants

v.

James M. Beardsley and Linda A. Beardsley, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 93-14415, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

This is an appeal from a post-answer default judgment. In eighteen points of error,

appellants assert that the trial court erred in overruling their motion for new trial and improperly

awarding attorney's fees. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arose from a boundary line dispute between James M. and Linda A.

Beardsley, appellees, who own the land at 707 Highland Avenue in Austin, (1) and Leon Mac

Hruska and Gail Cocke, appellants, who own the adjoining property immediately behind the

Beardsleys' lot. The elevation of the Beardsleys' yard is somewhat higher than appellants' yard.

A retaining wall runs parallel to, and two feet inside, the Beardsleys' boundary line. In August

1992, appellants erected a fence with a gate to give privacy to their backyard. The end of the

fence abutted the Beardsleys' retaining wall, thereby essentially enclosing and incorporating the

two-foot strip of the Beardsleys' land into appellants' backyard. Several weeks after the fence was

erected, the Beardsleys' attorney sent appellants a written demand to remove the fence because

it encroached upon the Beardsleys' property. After speaking with the surveyor hired by the

Beardsleys, appellants realized that their surveyor had made a mistake and that the fence did

encroach on the Beardsleys' property. Appellants promptly removed the encroaching portion of

the fence.

Because appellants still wanted a fence to enclose their backyard, they requested

a variance from the City of Austin to allow them to build the fence closer to the street, on the

city's easement, which would make the fence abut a pole owned by the city. The purpose of this

arrangement was to eliminate the direct encroachment of the fence onto the Beardsleys' property.

However, the fence still effectively enclosed the two-foot strip within appellants' backyard,

because the city's pole essentially abutted the retaining wall. The Beardsleys, through their

representative, opposed the variance. At the hearing before the local zoning board of adjustment,

appellants conceded that the two-foot strip of land which the proposed fence would enclose

belonged to the Beardsleys. The city granted the variance, and appellants built the fence on the

city's easement. The Beardsleys' attorney sent a second letter demanding the removal of

encroachments in January 1993. Appellants removed some bricks from the Beardsleys' two foot

strip of land. The Beardsleys' attorney then notified their representative that appellants had

removed all encroachments.

After the city granted the variance and appellants built the fence across the city's

easement, the Beardsleys brought suit against appellants for trespass by encroachment, declaratory

judgment for location of the boundary, permanent injunction, attorney's fees, and costs of court.

Appellants filed a general denial.

At docket call both sides announced ready for trial. Because of a shortage of

judges, the case was placed on standby pending further notice by the court administrator. On the

morning of May 17, 1994, appellants' attorney contacted the court administrator's office to

ascertain the status of the case and was informed that the case was number seven on the standby

list. At approximately 4:00 p.m. that afternoon, the court administrator called the attorney's

office and reached an answering service. The court administrator left a message that the case was

set for trial the following morning at 9:00 a.m. At the same time that the court administrator was

leaving his message, appellants' attorney, having just arrived back in his office, called the

answering service to retrieve his messages. As a result, he did not receive the message regarding

the trial setting.

Appellants' attorney was scheduled to attend a hearing on an uncontroverted

summary judgment motion in another county at 9:00 a.m. on May 18, 1994. Because he had not

received notice of the trial setting, knew that the court's local practice is to give parties on standby

several hours notice of a trial setting, and anticipated that he would only be gone a couple of

hours, the attorney left his office shortly before 8:30 a.m. to attend his out-of-town hearing. At

8:30 a.m., the answering service faxed a listing of all calls received the day before. The court

called shortly after 9:00 a.m. inquiring about the attorney's whereabouts. His secretary informed

the court of the situation. The attorney returned to his office around 10:30 a.m. and learned of

the missed trial setting. He contacted the court administrator and learned that the court had

already proceeded to trial and rendered judgment.

When appellants failed to appear at trial on May 18, 1994, the court, after hearing

evidence, orally rendered a default judgment that declared the location of the boundary, granted

a permanent injunction mandating the removal of existing encroachments and prohibiting future

encroachments, awarded $5,000 in attorney's fees, and awarded costs of court and postjudgment

interest. Later that day, appellants filed a "Motion for New Trial and Objection to Entry of

Judgment." The court conducted a hearing on the motion for new trial on May 26, 1994. At the

conclusion of the hearing, the court announced orally that all relief previously granted except for

the declaratory judgment and attorney's fees was set aside. The Beardsleys then orally took, and

the court accepted, a non-suit on all claims for injunctive relief. On June 27, 1994, the court

signed a judgment, an order overruling appellants' motion for new trial, and an order granting the

Beardsleys' previous request for a partial nonsuit. This last order was entitled "Order on Nonsuit

and Final Judgment." On July 22, 1994, appellants filed their "First Amended Motion for New

Trial." A hearing was set for September 9, 1994. During the hearing, the court excluded some

testimony of Leon Mac Hruska. The court never ruled on the amended motion, and, if a valid

motion, it was overruled by operation of law on September 12, 1994. In its findings of fact and

conclusions of law issued November 7, 1994, the trial court found that the amended motion for

new trial did not present any new matter not before the court on the original motion. The court

found that appellants' failure to appear at trial was not a result of conscious indifference; however,

the court concluded that appellants had not set up a meritorious defense to the Beardsleys' claim

for declaratory relief. A bill of exceptions hearing for the excluded testimony of Hruska was held

January 4, 1995. This appeal followed.

DISCUSSION

Justiciable Controversy

In point of error five, appellants argue that the trial court erred in rendering a final

judgment in favor of the Beardsleys and in overruling their motion for new trial because there was

no justiciable controversy with regard to the location of the boundary line. We disagree. A

sufficient justiciable controversy may exist and a declaratory judgment be proper even where a

dispute has not yet culminated in wrongdoing or posed such a threat of imminent harm as to

warrant equitable relief. A declaratory proceeding may be instituted "to settle and to afford relief

from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex.

Civ. Prac. & Rem. Code Ann. § 37.002 (West 1986) (further providing that section 37.002 "is

to be liberally construed and administered"). In the present case, appellants' fence, though

technically no longer encroaching on the Beardsleys' property, still effectively incorporated a two-foot strip of the Beardsleys' property into appellants' backyard. Such a situation lends itself to

uncertainty with regard to control and ownership of the land. Potential future disputes range from

actions for trespass to potential adverse possession claims. We conclude that a sufficient

justiciable controversy existed, and that the Beardsleys were entitled to a declaratory judgment

to settle the uncertainty with respect to the boundary line. Appellants' point of error five is

overruled.

Motion for New Trial Issues

In points of error one, two, three, and four, appellants assert various arguments

that the trial court erred in not granting a new trial on the declaratory judgment issues. (2) Before

addressing these points of error, we must first address the procedural complexities which occurred

at the trial court that will impact our analysis. Appellants filed their motion for new trial on the

same day the trial was conducted, but before any judgment was signed. Under Rule 306c, the

premature motion for new trial was deemed filed on the date of, but subsequent to, the signing

of the judgment which the motion assails. Tex. R. Civ. P. 306c. Thus, the motion for new trial

was deemed filed June 27, 1994, the same date the initial judgment was signed. The order

overruling the motion for new trial was likewise signed June 27, 1994. Thereafter, the court

signed a second judgment, which incorporated the Beardsleys' nonsuit on their claims for

injunctive relief. After this second judgment was signed, appellants filed an "amended" motion

for new trial. Despite the terminology, the "amended" motion was actually a timely filed original

motion for new trial in response to the court's second, final judgment. A hearing was requested

and held on September 9, 1994, before the motion was overruled by operation of law on

September 12. At the hearing, the trial court excluded some testimony of appellant Leon Mac

Hruska. A hearing on a bill of exceptions for this excluded evidence was held on January 4,

1995. This hearing was held after the court's plenary power expired; therefore, the court had no

power to grant a new trial based on this evidence.

Several of appellants' points of error complain of errors relating to the trial court's

order partially overruling the original motion for new trial. However, because the second

judgment superseded the prior one and the court's decision to partially overrule the original

motion for new trial, we will address only the alleged error in overruling appellants' "amended"

motion for new trial.

A denial of a motion for new trial is reviewed under an abuse of discretion

standard, Cliff v. Hughes , 724 S.W.2d 778 (Tex. 1987); however, the scope of the trial court's

discretion for granting a motion for new trial is defined and well settled. Once a moving party

meets the requirements of Craddock v. Sunshine Bus Lines , 133 S.W.2d 124 (Tex. 1939), the trial

court should grant the motion for new trial. Under Craddock , the moving party must: (1) allege

the failure to appear was not intentional or the result of conscious indifference, but rather was due

to an accident or mistake; (2) allege facts which if true in law would constitute a meritorious

defense in whole or in part to the claim and support the assertion with affidavits or other evidence;

and (3) allege that granting the motion for new trial will not cause delay or injury to the plaintiff.

Id. at 126 . A meritorious defense is not required, however, when the defendant against whom

a default judgment has been rendered had no notice of the lawsuit, because to enforce such a

requirement would offend due process. Peralta v. Heights Medical Ctr., Inc. , 485 U.S. 80, 84-87

(1988); see Lopez v. Lopez , 757 S.W.2d 721, 723 (Tex. 1988) (stating that a meritorious defense

is not required if there is no actual or constructive notice); see generally, William R. Trail & Julia

A. Beck, Peralta v. Heights Medical Center, Inc: A Void Judgment Is a Void Judgment Is a Void

JudgmentBill of Review and Procedural Due Process in Texas , 40 Baylor L. Rev. 367 (1988).

Likewise, because of the potential for denial of due process, a meritorious defense would not be

required if the party who has already appeared did not receive notice of trial. LBL Oil Co. v.

International Power Servs., Inc. , 777 S.W.2d 390, 390-91 (Tex. 1989).

In points of error three and four, appellants argue that the trial court abused its

discretion by proceeding to trial and later in overruling appellants' motion for new trial, because

the court administrator's notice of the trial setting was inadequate. The standard for reviewing

the adequacy of notice of a trial resetting is reasonableness. Tex. R. Civ. P. 245. This case was

placed on standby after docket call. Appellants were on notice that under the local rules of Travis

County cases not assigned to judges at the docket call "will be assigned at any time before noon

on Thursday of that week as judges become available, and the parties must be ready to begin the

trial or hearing when each case is reached." Travis Cty. Dist. Cts. Loc. R. 3.7. The case was

reset for trial at 9:00 a.m. on May 18, 1994. The court administrator testifiedand appellants

admitthat the administrator called appellants' attorney's office at approximately 4:00 p.m. on

May 17, 1994 to give notice of the trial setting the next morning and left a message with the

answering service. The answering service was acting as an agent for appellants' attorney in

receiving the message. That notice, if received, would have allowed appellants sufficient time to

prepare for trial the next morning. Appellants' attorney failed to receive this message in time due

to a problem in retrieving messages from the answering service, not because of any defect in the

notice itself. We conclude that the notice of resetting was reasonable and satisfied due process,

because actual notice was given by the court administrator to an agent of appellants' attorney;

therefore, the trial court did not abuse its discretion in proceeding to trial and later partially

overruling appellants' motion for new trial. Appellants' points of error three and four are

overruled.

In points of error one and two, appellants contend that the trial court erred in

failing to grant their motion for new trial because appellants satisfied the requirements of

Craddock . It is undisputed that appellants' failure to appear at trial was neither intentional nor

the result of conscious indifference. Nor do the Beardsleys contend they would suffer delay or

other harm as a result of granting the motion for new trial. The sole dispute on appeal is whether

appellants have set up a meritorious defense.

Appellants' motion for new trial stated as a meritorious defense that there was no

longer an encroachment on the Beardsleys' property. This assertion, however, is a defense only

to the Beardsleys' claims for injunctive relief; it does not address the declaratory judgment issue.

The court's final judgment granted the the Beardsleys' request for a nonsuit as to their claims for

injunctive relief, thereby eliminating those claims, but granted the Beardsleys' request for a

declaration of the location of the boundary line. Appellants' motion for new trial sets up no

meritorious defense to the issue of the location of the boundary line addressed by the request for

declaratory relief. Thus, the motion itself is deficient in failing to set up a meritorious defense

to the cause of action for declaratory judgment. Furthermore, appellants failed to support their

motion for new trial with any affidavits alleging facts which would support a meritorious defense

to the declaratory judgment suit. Additionally, the evidence offered at the hearing on the motion

for new trial did not present any facts that would support a meritorious defense to declaratory

relief. Therefore, we conclude that the trial court did not abuse its discretion in overruling the

motion for new trial as to the Beardsleys' declaratory judgment action. Appellants' points of error

one and two are overruled.

Attorney's Fees

In points of error six and nine, appellants complain about the court's award of

attorney's fees to the Beardsleys. Essentially, appellants assert that the attorney's fees were not

properly apportioned between the claims for declaratory and injunctive relief. Appellants also

argue that there was no evidence presented at the trial and that the trial court failed to find that

the attorney's fees awarded were reasonable and necessary. During the hearing on the motion for

new trial, appellants argued that the award of $5,000 for attorney's fees was excessive because

if there was no dispute as to the boundary line and the encroachment had already been removed,

the Beardsleys never should have litigated the case. However, the Beardsleys pleaded ownership

and possession of their tract, which they described by reference to the plat records of Travis

County. Appellants answered by general denial, thereby placing in issue the exact boundary

between the two properties. In addition, appellants never argued in the trial court that the

attorney's fees were improperly apportioned between the claim for declaratory judgment and the

claim for injunctive relief, nor did they argue that there was no evidence that the award was

reasonable and necessary. We conclude that appellants did not preserve these issues for appeal.

See T.O. Stanley Boot Co. v. Bank of El Paso , 847 S.W.2d 218, 220 (Tex. 1992); Tex. R. App.

P. 52(a). Appellants' points of error six and nine are overruled.

We have reviewed appellants' remaining points of error and find them to be without

merit. We therefore overrule all remaining points of error.

CONCLUSION

We affirm the judgment of the district court.

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Affirmed

Filed: December 13, 1995

Do Not Publish

1. At all times relevant to this suit, appellees lived out of state. Their property and

this suit were managed by a representative, Peggy Metzger, who is a licensed real estate

agent and the mother of James Beardsley.

2. Before oral argument, appellants filed a motion to deem facts alleged in appellant's

brief to be admitted and points of error unbriefed as unopposed. Texas Rule of Appellate

Procedure 74(f) provides in relevant part: "Any statement made by appellant in his

original brief as to the facts or the record may be accepted by the court as correct unless

challenged by the opposing party." (Emphasis added.) The rule gives the court discretion in

accepting the alleged facts as true. We decline appellants' invitation to accept the facts in their

brief as true. Upon examining appellees' brief, we conclude that they did respond to all of

appellants' points of error. We overrule appellants' motion.

After oral argument, appellants filed a motion to supplement the statement of facts with

the bill of exception made for Leon Mac Hruska's excluded testimony. Because the bill of

exception hearing was conducted after the trial court's plenary power had expired, we overrule

that motion as well.

declaratory relief. Thus, the motion itself is deficient in failing to set up a meritorious defense

to the cause of action for declaratory judgment. Furthermore, appellants failed to support their

motion for new trial with any affidavits alleging facts which would support a meritorious defense

to the declaratory judgment suit. Additionally, the evidence offered at the hearing on the motion

for new trial did not present any facts that would support a meritorious defense to declaratory

relief. Therefore, we conclude that the trial court did not abuse its discretion in overruling the

motion for new trial as to the Beardsleys' declaratory judgment action. Appellants' points of error

one and two are overruled.

Attorney's Fees

In points of error six and nine, appellants complain about the court's award of

attorney's fees to the Beardsleys. Essentially, appellants assert that the attorney's fees were not

properly apportioned between the claims for declaratory and injunctive relief. Appellants also

argue that there was no evidence presented at the trial and that the trial court failed to find that

the attorney's fees awarded were reasonable and necessary. During the hearing on the motion for

new trial, appellants argued that the award of $5,000 for attorney's fees was ex