Opinion
13-22-00446-CV
12-07-2023
3G ELECTRICAL SERVICES, LLC, Appellant, v. JESSY T. GARZA, Appellee.
On appeal from the 343rd District Court of Bee County, Texas.
Before Tijerina, Silva, and Peña, Justices.
MEMORANDUM OPINION
JAIME TIJERINA, Justice.
By one issue, appellant 3G Electrical Services, LLC (3G) challenges the trial court's default judgment in favor of appellee Jessy T. Garza. We reverse and remand.
I. Background
Marco Garcia and Ernesto Garcia (the Garcias) filed suit against Garza on September 17, 2018, claiming that Garza fraudulently transferred title of real property that belonged to Marco to himself. The Garcias alleged that neither Marco nor Ernesto signed the deed, Garza tricked Ernesto into signing a blank paper, and Garza then used that paper with Ernesto's signature to falsify the transfer of the deed to himself. On October 25, 2018, Garza filed a countersuit for the collection of loans he claimed he made to Ernesto. Garza filed a second amended original answer and "third-party claim" adding 3G as a third-party defendant and seeking a declaratory judgment that Garza owns a forty-nine percent interest in 3G, an accounting of 3G, an examination of 3G's LLC documents, and to "pierce the corporate veil." On February 12, 2020, Garza filed a motion for default judgment against 3G asserting that 3G failed to file an answer and stating that he had properly served Ernesto as 3G's registered agent. On February 27, 2020, Ernesto filed a pro se answer on behalf of 3G generally denying Garza's claims.
The evidence shows that Marco gave Ernesto a power of attorney to sign the deed and transfer the real property to Garza.
A bench trial ensued where the parties presented conflicting evidence. On May 9, 2022, the trial court signed a judgment wherein it did not address Garza's claim against 3G. The Garcias filed a motion for new trial. Garza filed a motion to correct the judgment because the judgment did not address Garza's suit against 3G. Additionally, Garza filed a motion to strike 3G's original answer on the basis that Ernesto is not a licensed attorney, and he could therefore not represent 3G.
The trial court severed this cause from the Garcias' claims and Garza's counterclaims regarding the the loans. In this cause, on August 18, 2022, the trial court granted Garza's request for default judgment, and it (1) declared that 3G's original answer was a nullity because Ernesto is not a licensed attorney, (2) declared that Garza owns forty-nine percent of 3G, (3) ordered Ernesto to provide 3G's records to Garza for inspection, (4) ordered 3G to pay Garza's attorney's fees, and (5) ordered post-judgment interest. This appeal followed.
II. Default Judgment
By its sole issue, 3G contends that the trial court's default judgment was improper. Specifically, 3G argues that "[a] motion for default judgment must be presented and ruled upon prior to the commencement of trial or it is waived."
Prior to the trial, Garza filed a motion for default judgment in his claim against 3G, and Ernesto filed a pro se response to the motion for default judgment on behalf of 3G. Garza failed to inform the trial court that the answer on behalf of 3G was invalid when it was filed, and he did not ask for a ruling on his motion for default judgment. Thus, the trial court did not rule on the motion, and it held the bench trial. Following a bench trial and after the trial court signed the judgment, it granted Garza's motion to strike 3G's answer and granted a default judgment.
A default judgment is waived when the movant does not get a ruling on its motion for default judgment prior to trial on the merits. See Shows v. Man Engines & Components, Inc., 364 S.W.3d 348, 358-59 (Tex. App.-Houston [14th Dist.] 2012), aff'd, 434 S.W.3d 132 (Tex. 2014); Dodson v. Citizens State Bank of Dalhart, 701 S.W.2d 89, 94 (Tex. App.-Amarillo 1986, writ ref'd n.r.e.) (noting that the parties had already announced ready, with the jury selected, and testimony was about to begin when the movant requested a default judgment; thus, the movant waived his motion for default judgment "even if appellee's pleadings be considered as not sufficient to be a proper answer"); Goetz v. Goetz, 534 S.W.2d 716, 719-20 (Tex. App.-Dallas 1976, no writ) (explaining that the appellant "waived for purpose of this appeal her right to demand a default judgment by proceeding to trial without taking advantage of defendant's failure to answer and by waiting until after judgment was entered to complain of the court's failure to render default judgment against the corporation"); Nealy v. Fid. Union Life Ins. Co., 376 S.W.2d 401, 403 (Tex. App.-Dallas 1964, no writ). Therefore, we conclude that by not apprising the trial court of the defective answer and not seeking a ruling on the default judgment prior to trial, Garza waived his right to complain of 3G's failure to file a properly written answer. See Dodson, 701 S.W.2d at 94; Goetz, 534 S.W.2d at 719-20; Nealy, 376 S.W.2d at 403 ("Having proceeded to trial without requesting an interlocutory default judgment, appellants impliedly consented to the procedure followed by the trial court, both in the introduction of evidence and the submission of issues to the jury, and hence any right to a default judgment was waived."); see also Demoski v. New, 737 P.2d 780, 787 (Alaska 1987) (citing Dodson and holding "that waiver occurs at least when evidence is presented at trial without a default first being requested").
Moreover, this Court has held that although a corporation must appear in the trial court through an attorney, an answer filed on behalf of a corporation pro se does "not render the answer ineffective so as to entitle the plaintiff to a default judgment." R.T.A. Intern., Inc. v. Cano, 915 S.W.2d 149, 151 (Tex. App.-Corpus Christi-Edinburg 1996, writ denied). We stated that an answer timely filed on behalf of the corporation signed by an agent of the corporation "constituted an answer sufficient to ward off a default judgment." Id. We therefore determined that the trial court's default judgment was erroneous, and we reversed it and remanded the cause to the trial court for further proceedings consistent with our opinion. Id. Likewise, here, although defective, 3G's pro se answer was sufficient to ward off a default judgment, and the trial court erred in striking it and granting default judgment. See id. We sustain 3G's sole issue.
III. Conclusion
We reverse the trial court's judgment and remand for proceedings consistent with this memorandum opinion.