Opinion
NO. 14-18-00625-CV
11-07-2019
AISHA HUGHES, Appellant v. MARK POCOROBA, Appellee
On Appeal from the 353rd District Court Travis County, Texas
Trial Court Cause No. D-1-FM-14-001670
MEMORANDUM OPINION
Appellant Aisha Hughes (Mother) brings this appeal from a no-answer default judgment in favor of appellee Mark Pocoroba (Father). For the reasons stated below, we affirm.
The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to the Fourteenth Court of Appeals. We must therefore decide the case in accordance with the precedent of the Third Court of Appeals if our decisions otherwise would have been inconsistent with that court's precedent. See Tex. R. App. P. 41.3.
On March 23, 2017, a final order was signed in a suit affecting the parent-child relationship ("SAPCR"). See Tex. Fam. Code § 105.006. The subject of the suit, A.P., is a child born of a relationship between Mother and Father. In February 2018, Father filed a petition to modify the parent-child relationship. After efforts to serve Mother failed, Father filed a motion for alternative service. The motion was granted on March 30, 2018. That same day, Mother was served in accordance with the order permitting alternative service. The record before this court contains no answer, or any filing of any kind, to the petition.
On April 26, 2018, a no-answer default judgment was signed in the form of a final order. On May 11, 2018, Mother filed a pro se motion to set aside the default judgment. A hearing on the motion to set aside was held on May 24, 2018. Mother appeared pro se. The trial court denied the motion. On June 26, 2018, counsel for Mother timely filed a notice of appeal.
The record before this court does not reflect when counsel began representing Mother.
In appellant's brief, Mother claims the trial court abused its discretion by granting Father's petition to modify the parent-child relationship. Specifically, in four issues, Mother claims there is legally and factually insufficient evidence of any material and substantial change of circumstance to support: (1) any modification of conservatorship of the child; (2) any modification of possession of the child; (3) any modification of child support; or (4) to find that any of the modifications ordered are in the best interest of the child.
Under Rule 239 of the Texas Rules of Civil Procedure, "the plaintiff may . . . take judgment by default against [the] defendant if he has not previously filed an answer." Tex. R. Civ. P. 239. The plaintiff may take such a "no-answer" default judgment without further notice if the defendant has not filed a written answer or otherwise "appeared" in the action. See Schoendienst v. Haug, 399 S.W.3d 313, 316 (Tex. App.—Austin 2013, no pet.). In cases of no-answer default, "a defaulting defendant admits all facts properly pled in the plaintiff's petition except for the amount of unliquidated damages." Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009). Therefore, a no-answer default judgment can be rendered on the pleadings without requiring the plaintiff to offer evidence or prove his case. See Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); In re K.B.A., 145 S.W.3d 685, 690 (Tex. App.—Fort Worth 2004, no pet.). As a consequence, appellants are precluded from challenging the sufficiency of the evidence. See Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.—San Antonio 1996, no pet.) ("Appellants may not now challenge the sufficiency of the evidence where their failure to answer constitutes an admission of such liability."). Accordingly, we overrule Mother's issues.
Except as otherwise provided by Family Code title 5, "proceedings shall be as in civil cases generally." Tex. Fam. Code § 105.003.
In her reply brief, Mother cites Craddock and argues, for the first time, that the trial court erred by denying her motion to set aside the default judgment. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). The Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue not raised by appellant's original brief. See Plasma Fab, LLC v. BankDirect Capital Fin., LLC, 468 S.W.3d 121, 134, n.7 (Tex. App.—Austin 2015), aff'd on other grounds, 519 S.W.3d 76 (Tex. 2017) (recognizing issues that were not raised in appellant's brief or argued by appellee were waived); see also 38.1(f) ("The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included."); Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). Accordingly, we only can consider those issues presented in Mother's brief.
Father's brief only contends Mother waived the issues in her opening brief by failing to present them to the trial court before raising them on appeal.
We affirm the trial court's final order.
/s/ Margaret "Meg" Poissant
Justice Panel consists of Justices Christopher, Spain, and Poissant.