In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.
Booker v. LVNV Funding LLC, No. 13-16-00035-CV (Memorandum Opinion by Justice Rodriguez; Panel Members: Justices Longoria and Contreras)
In this appeal from a writ of garnishment, the Thirteenth Court of Appeals analyzed a collateral attack on a default judgment.
Michael Booker accrued $3,588.13 in debt on a Metris credit card. LVNV Funding purchased the debt and sued Booker in 2005. Booker did not file an answer, and the district court entered a default judgment in LVNV’s favor for $3,588.13 plus attorney’s fees of $1,196.
Ten years later, LVNV filed an application for a writ of garnishment against Booker. Booker attempted to vacate the original 2005 default judgment, arguing that it was void due to jurisdictional defects. The trial court denied Booker’s motion to vacate and granted LVNV’s application. Booker appealed, attacking the writ of garnishment by raising four challenges to the underlying 2005 default judgment.
Held: The 2005 judgment was not void, and the trial court’s judgment was affirmed.
Booker claimed that the 2005 default judgment was void for four reasons: (1) the judgment did not plead his home address, (2) the judgment did not allege that Booker signed the credit agreement in Robertson County, (3) the citation in the 2005 suit stated the wrong deadline for filing an answer, and (4) the citation in the 2005 suit misspelled Booker’s name.
The Thirteenth Court began by reiterating that a judgment will only be reversed on collateral attack if it is void; not merely voidable. A judgment is void if the court lacked jurisdiction or capacity to act.
Booker first claimed that the failure of the judgment to plead his home address or to allege that he signed the credit agreement in Robertson County deprived the 2005 trial court of subject matter jurisdiction. The Thirteenth Court held however, that these errors went to venue rather than jurisdiction. Venue is waivable, and does not render a judgment void. Rather, a default judgment is void for lack of subject matter jurisdiction if it fails to state a claim, fails to give fair notice of a claim, or affirmatively demonstrates the invalidity of a claim. Booker’s 2005 default judgment did not exhibit any of these errors.
Booker next asserted that the 2005 judgment was void for lack of personal jurisdiction because the citation included the wrong deadline for his answer, providing only twenty days to respond. Again, the Thirteenth Court of Appeals rejected this argument. The Thirteenth Court held that the petition filed in the 2005 lawsuit stated the correct deadline for Booker’s answer. Although the petition included requests for disclosure which were not due until “50 days after service of the request” under Texas Rule of Civil Procedure 194.3, Booker’s answer was nonetheless governed by the twenty-day deadline in Rule 99. The inclusion of requests for disclosure with the petition did not change the deadline for Booker’s answer. This issue was overruled.
Finally, Booker argued that the 2005 court lacked personal jurisdiction because the citation misspelled his name as “Micheal D. Booker” rather than “Michael D. Booker.” The Thirteenth Court characterized this error as a misnomer and an idem sonans. Misnomers did not void a judgment when the correct parties are involved in the suit. Furthermore, the doctrine of idem sonans—i.e., having the same sound—holds that a document is not void if the misspelling is pronounced the same as the correct spelling. This misspelling thus did not render the judgment against Booker void or rob the trial court of jurisdiction.
Having rejected each of Booker’s attacks on the 2005 judgment, the court rejected Booker’s corresponding challenge to the writ of garnishment. The judgment of the trial court was affirmed.
Perez-Trevino v. Cantu, No. 13-16-00109-CV and Mobile Video Tapes Inc. v. Cantu, No. 13-16-00111-CV (Memorandum Opinion by Justice Benavides; Panel Members: Chief Justice Valdez and Justice Longoria)
In this consolidated interlocutory appeal, the Thirteenth Court of Appeals analyzed two cases filed by attorney Mark Cantu for defamation, and dismissed both under the Texas Citizens Participation Act.
These cases stem from multiple McAllen news stories which reflected negatively on attorney Mark Cantu and his law office. First, The Monitor and The Valley Morning Star printed a story reporting on Cantu’s representation of a family in a rollover case against Ford Motor Company. In the article, the newspapers reported that the Texas Supreme Court found Cantu had been in collusion with a juror to secure a $3 million settlement from Ford, and noted that the case had been presided over by former Judge Limas, who is currently in federal prison for taking bribes from attorneys.
Channel 5 News also published a similar report linking Cantu to former Judge Limas.
The McAllen newspapers also published a second article about Cantu’s “long history of disciplinary concerns” for the last two decades. The story noted that a judge overseeing the bankruptcy of a corporation owned by Cantu and his wife in 2011 asked the State Bar of Texas to investigate Cantu.
In 2015, the Law Office of Mark Cantu filed two separate lawsuits—one against The Monitor, The Valley Morning Star, and its related authors and entities (the “Newspaper Defendants”) and one against Channel 5 News and its related producers and entities (the “TV Defendants”)—to recover for defamation, business disparagement, and intentional infliction of emotional distress. The defendants filed motions to dismiss under the Texas Citizens Participation Act (“TCPA”), claiming they were reporting a matter of public concern: the conduct of an officer of the Texas courts. Cantu responded to the Newspaper Defendants’ motion by filing an affidavit repeating the allegations in his petition. Cantu filed a more thorough response to the TV Defendants, explaining the nature of the alleged defamation and identifying the evidence he would bring forward to support his claims if “given the opportunity.”
The trial court held a hearing on the motions but did not hear evidence or issue a ruling. Instead, the trial court allowed the motions to be denied by operation of law.
The Newspaper and TV Defendants filed interlocutory appeals, and the appeals were consolidated.
Held: The trial court erred by denying the motions to dismiss filed by the Newspaper and TV Defendants pursuant to the TCPA. The judgments were reversed and the cases dismissed.
Both appellants challenged the trial court’s denial of their motion to dismiss under the TCPA. The Thirteenth Court thus began by reiterating the rules provided by the TCPA.
The TCPA provides for the dismissal of a case related to a defendant’s First Amendment right to free speech unless the plaintiff can show a prima facie case. First, the defendant must establish by a preponderance of the evidence that the plaintiff’s claim is based on the defendant’s right to free speech, which is statutorily defined to include communication regarding a matter of public concern such as an issue affecting the community’s well-being, government, or a public official or public figure. Once the defendant carries its burden, the plaintiff must establish a prima facie case on each essential element by “clear and specific” evidence. The “clear and specific” evidence standard requires more than notice pleading but less than a preponderance of the evidence.
Regarding Cantu’s lawsuit against the Newspaper Defendants, the articles in question involved a matter of public concern; namely, Cantu’s conduct as an officer of the Texas courts. Yet, Cantu did not provide evidence or testimony establishing a prima facie case for his claims. Cantu’s conclusory affidavit restating his allegations was insufficient to carry his burden under the TCPA. Thus, the trial court erred by failing to dismiss Cantu’s lawsuit against the Newspaper Defendants.
Similarly, the TV Defendants carried their initial burden by establishing that the news story at issue involved a matter of public concern. Although Cantu provided a more detailed response to the TV Defendants’ motion, Cantu merely described evidence he intended to bring forth to support his claims rather than actually establishing a prima facie case. Thus, again, the trial court erred by failing to dismiss Cantu’s claims.
In sum, the trial court erred by denying the motions to dismiss under the TCPA. The judgments were reversed, and the court of appeals rendered orders dismissing the cases.