                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00528-CV

                                     Maria Patricia FACUNDO,
                                             Appellant

                                                 v.

                             Abraham VILLEZCAS and Lety Villezcas,
                                          Appellees

                      From the 49th Judicial District Court, Webb County, Texas
                                Trial Court No. 2016CV7001941D1
                             Honorable Jose A. Lopez, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 1, 2018

AFFIRMED

           Maria Patricia Facundo appeals from a post-answer default judgment that the trial court

rendered against her on the appellees’ counterclaim for judicial foreclosure. In several issues,

Facundo argues the trial court erred by dismissing, and failing to reinstate, her causes of action

against the appellees, giving insufficient notice of the trial on appellees’ counterclaim, violating

her right to a jury trial, not giving her an opportunity to challenge the awards of damages and

attorney’s fees, and denying her motion for new trial. We affirm the trial court’s judgment.
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                                           BACKGROUND

       Facundo and the appellees, Abraham and Lety Villezcas, executed a contract for deed.

Facundo became delinquent under the contract, and the Villezcases notified Facundo of their intent

to accelerate the loan. The Villezcases thereafter posted the property for a foreclosure sale.

       Facundo filed an original petition, alleging causes of action of statutory fraud, groundless

eviction, and violations of the Texas Deceptive Trade Practices Act. Facundo also sought a

temporary restraining order to prevent the foreclosure sale. The original petition included a

demand for a jury trial.

       The Villezcases filed an answer, which included a general denial and affirmative defenses,

special exceptions, and a counterclaim for judicial foreclosure and attorney’s fees. At a hearing on

the Villezcases’ special exceptions, Facundo agreed to amend the original petition. The trial court

signed an order sustaining the Villezcases’ special exceptions and ordering Facundo to amend the

pleadings within thirty days of the date of the order.

       Facundo did not timely amend the original petition and, on the Villezcases’ motion, the

trial court dismissed Facundo’s causes of action. The trial court’s order noted the Villezcases’

counterclaim was not dismissed by the order. Facundo filed an unverified motion for new trial,

seeking to reinstate her causes of action. No hearing on the motion was set, and the trial court did

not sign an order ruling on the unverified motion for new trial.

       A pretrial hearing on the Villezcases’ counterclaim was held on May 2, 2017. Neither

Facundo nor her trial counsel appeared for the hearing. At the hearing, the trial court and counsel

for the Villezcases’ discussed whether the case should be set for a jury trial or a bench trial. It was

noted and confirmed for the record that Facundo had not paid the jury fee. Because the Villezcases

had not requested a jury trial, the case was set for a bench trial on May 22, 2017.



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       At the May 22, 2017 bench trial, neither Facundo nor her trial counsel appeared. Lety

Villezcas testified about the contract for deed, Facundo’s default on the contract, and about the

outstanding amount due and owing under the contract. The Villezcases’ trial counsel then testified

as to their reasonable and necessary attorney’s fees. The trial court signed a final judgment,

awarding the Villezcases $21,873.52 and post-judgment interest and $6,373.00 in attorney’s fees.

       The final judgment contains a decree that the Villezcases are entitled to a judicial

foreclosure. Facundo filed a second, verified motion for new trial, stating the failure to appear for

trial was due to an honest mistake. The trial court heard both Facundo’s first, unverified motion

for new trial on her dismissed causes of action and the second, verified motion for new trial

regarding the judgment on the Villezcases counterclaim. The trial court signed an order denying

Facundo’s “motion for new trial,” and Facundo timely perfected this appeal.

                         DISMISSAL OF FACUNDO’S CAUSES OF ACTION

       Facundo argues the trial court erred by dismissing her causes of action as a “death penalty”

sanction and by denying her first, unverified motion for new trial, which she claims was a motion

to reinstate under Texas Rule of Civil Procedure 165a. See TEX. R. CIV. P. 165a. She further

contends she is entitled to statutory liquidated damages and attorney’s fees under section 5.077 of

the Texas Property Code because the Villezcases did not provide annual accounting statements for

the years of 2015 and 2016. In response, the Villezcases argue the trial court properly dismissed

Facundo’s causes of action, and did not abuse its discretion by denying the motion to reinstate.

The Villezcases admit in their appellees’ brief they did not provide the annual accounting

statements.

A. Dismissal Order

       Facundo contends the trial court erred by dismissing her causes of action because the

dismissal was a “death penalty” sanction and the trial court gave her no prior notice of the
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dismissal. The trial court dismissed Facundo’s causes of action pursuant to the Villezcases’ motion

to dismiss. The Villezcases’ motion to dismiss sought a dismissal of Facundo’s causes of action

because Facundo failed to amend her pleadings in response to the trial court’s order sustaining the

Villezcases’ special exceptions. Facundo did not challenge the trial court’s ruling on the special

exceptions and, instead, agreed to amend her pleadings. Here, she challenges only the dismissal of

her causes of action, arguing they are a death penalty sanction and she was not given any prior

notice.

          When a trial court sustains a party’s special exceptions, “[t]he nonexcepting party may then

either 1) amend the pleadings to cure the defect or 2) stand on the pleadings and test the trial court’s

decision on appeal.” Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 330, 336 (Tex. App.—

Fort Worth 2005, pet. denied). “If the pleader fails or refuses to amend the pleading, the trial court

may dismiss the case.” Id. “A trial court may not dismiss a case after sustaining special exceptions

without first giving the nonexcepting party an opportunity to amend its pleadings.” Id.

          Here, the trial court sustained the Villezcases’ special exceptions and gave Facundo an

opportunity to amend her pleadings. Although Facundo agreed to amend her pleadings, the record

shows she did not do so. Facundo complains that the trial court failed to provide her with any

notice that the trial court would dismiss her causes of action if she did not amend her pleadings,

but the trial court’s order sustaining the Villezcases’ special exceptions states Facundo “may

amend her Original Petition . . . within thirty (30) days . . . or the Court will dismiss this cause,

without prejudice, upon the request by Defendants” (emphasis added). The trial court’s order

unambiguously gave Facundo notice that her causes of action would be dismissed upon the

Villezcases’ motion if she did not timely amend her pleadings. 1


1
  Facundo asserts the trial court violated Texas Rule of Civil Procedure 245, which requires forty-five days’ notice of
trial, by not giving her enough time to amend her pleadings. See TEX. R. CIV. P. 245. Facundo did not object to

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        We also disagree with Facundo’s unsupported assertion that the trial court’s dismissal of

her causes of action was a “death penalty sanction.” Sanctions differ from a dismissal for failure

to amend one’s pleadings after a trial court sustains special exceptions. Generally, a death penalty

sanction is for bad faith litigation conduct. See Altesse Healthcare Sols., Inc. v. Wilson, 540 S.W.3d

570, 572 (Tex. 2018) (per curiam). A dismissal for failure to amend one’s pleadings after a trial

court sustains special exceptions is generally based on the pleadings’ failure to state a cause of

action. See Cole v. Hall, 864 S.W.2d 563, 566-67 (Tex. App.—Dallas 1993, writ dism’d w.o.j.)

(en banc). Here, the Villezcases specially excepted to Facundo’s original petition because it did

not state a claim or provide fair notice of the alleged causes of action. We cannot say the trial

court’s dismissal of Facundo’s causes of action was an erroneous death penalty sanction. See Ford,

178 S.W.3d at 335-36 (giving trial court discretion to dismiss a case if plaintiff fails to amend

pleadings after trial court sustains special exceptions).

B. Denial of the First, Unverified Motion for New Trial & Failure to Reinstate Causes of
Action

        Facundo argues the trial court erred by denying her first, unverified motion for new trial,

which she argues is a motion to reinstate under Texas Rule of Civil Procedure 165a. See TEX. R.

CIV. P. 165a. Rule 165a applies to dismissals for want of prosecution based on a claimant’s failure

to appear for a duly noticed hearing or trial, and requires that motions to reinstate be verified. See

id. R. 165a.3. Because Facundo’s motion was not verified, we cannot say the trial court erred under

Rule 165a by denying the motion. See id.; see also Garcia v. Baig, No. 01-01-01213-CV, 2002

WL 31682779, at *2 (Tex. App.—Houston [1st Dist.] Nov. 27, 2002, pet. denied) (holding trial




insufficient notice under Rule 245 in the trial court, and she cites no authority that Rule 245’s notice requirement
applies to special exceptions. Facundo also does not argue why thirty days’ notice was insufficient.

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court did not abuse its discretion by denying Rule 165a motion to reinstate because motion was

not verified).

   FACUNDO’S CLAIM FOR RELIEF UNDER SECTION 5.007 OF THE TEXAS PROPERTY CODE

        Facundo argues she is nevertheless entitled to statutory liquidated damages and attorney’s

fees under section 5.077 of the Texas Property Code because, as demonstrated by the discovery

responses attached to her brief and a supposed judicial admission in the Villezcases’ brief, the

Villezcases did not provide annual accounting statements for the years of 2015 and 2016.

However, we “cannot consider documents attached to briefs that do not appear in the appellate

record.” See K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 97 (Tex. App.—San Antonio 2002,

no pet.). Furthermore, our scope of review here is limited to “the information available to the trial

court at the time of the ruling.” See Hornell Brewing Co., Inc. v. Lara, 252 S.W.3d 426, 429 (Tex.

App.—Houston [14th Dist.] 2008, no pet.). We therefore cannot say Facundo is entitled to a

judgment on her claim for relief under section 5.077 of the Texas Property Code.

                                   INSUFFICIENT NOTICE OF TRIAL

        Facundo argues the trial court violated Texas Rule of Civil Procedure 245 because the trial

court did not give her forty-five days’ notice of trial. Rule 245 provides:

        The Court may set contested cases on written request of any party, or on the court’s
        own motion, with reasonable notice of not less than forty-five days to the parties of
        a first setting for trial, or by agreement of the parties; provided, however, that when
        a case previously has been set for trial, the Court may reset said contested case to a
        later date on any reasonable notice to the parties or by agreement of the parties.

TEX. R. CIV. P. 245. Facundo argues the trial court first gave her notice of trial on May 2, 2017,

only twenty days before the May 22, 2017 trial. However, the record contains a March 3, 2017

Pre-Trial Guideline Order signed by Facundo’s trial counsel. The Pre-Trial Guideline Order set

trial for May 22, 2017. We hold that under Rule 245, the trial court gave sufficient notice of the

May 22, 2017 trial date. See id.
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                    OPPORTUNITY TO BE HEARD & RIGHT TO A JURY TRIAL

        Facundo argues the trial court violated Texas Rule of Civil Procedure 243 because the trial

court did not give her an opportunity to contest the Villezcases’ damages and attorney’s fees. She

also argues the trial court deprived her of her right to a trial by jury. Rule 243 provides:

        If the cause of action is unliquidated or be not proved by an instrument in writing,
        the court shall hear evidence as to damages and shall render judgment therefor,
        unless the defendant shall demand and be entitled to a trial by jury in which case
        the judgment by default shall be noted, a writ of inquiry awarded, and the cause
        entered on the jury docket.

Id. R. 243. “The rule is that when one party demands a jury and pays a jury fee, the right thus

secured to him inures to all the other parties to the suit.” White Motor Co. v. Loden, 373 S.W.2d

863, 865 (Tex. Civ. App.—Dallas 1963, no writ). “A timely request for a jury plus a timely

payment of the jury fee are essential to preserving the right to trial by jury.” Whiteford v. Baugher,

818 S.W.2d 423, 425 (Tex. App.—Houston [1st Dist.] 1991, writ denied) (citing Huddle v. Huddle,

696 S.W.2d 895, 895 (Tex. 1985)).

        At the May 2, 2017 pretrial conference, the trial court set the case for a bench trial because

it determined Facundo did not pay the jury fee. Facundo does not cite to anything in the record

showing she paid the jury fee. By failing to both request a jury and timely pay the jury fee in the

trial court, Facundo failed to preserve her right to a jury trial. See id.; Roberts v. Mullen, 446

S.W.2d 86, 90 (Tex. Civ. App.—Dallas 1969, writ ref’d n.r.e.) (“[I]n the absence of any showing

that he paid the required fee we cannot say that the trial court erred in denying him a jury trial.”).

Moreover, Facundo was provided with an opportunity to contest the Villezcases’ damages and

attorney’s fees at the May 22, 2017 bench trial. Thus, the trial court gave Facundo an opportunity

to contest the Villezcases’ damages and attorney’s fees and did not deprive her of her right to a

trial by jury.



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                          SECOND, VERIFIED MOTION FOR NEW TRIAL

       In her remaining issues, Facundo argues the trial court erred by denying her second,

verified motion for new trial. “We review a trial court’s denial of a motion for new trial under an

abuse of discretion standard.” BZ Tire Shop v. Brite, 387 S.W.3d 837, 838 (Tex. App.—San

Antonio 2012, no pet.). “A trial court abuses its discretion when it acts unreasonably or without

regard for any guiding legal principles.” Id.

       Facundo argues she satisfied the requirements for a new trial under Craddock v. Sunshine

Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Craddock requires that the defendant, or a

counter-defendant as in this case, show: (1) that the default was neither intentional nor the result

of conscious indifference, (2) a meritorious claim or defense, and (3) that a new trial would cause

neither delay nor undue prejudice. See id. at 126; accord Milestone Operating, Inc. v. ExxonMobil

Corp., 388 S.W.3d 307, 308 (Tex. 2012) (per curiam). Craddock’s third element usually requires

“the defendant to offer to reimburse the plaintiff for the costs involved in obtaining their default

judgment in order to avoid an injury to the plaintiff.” Angelo v. Champion Rest. Equip. Co., 713

S.W.2d 96, 98 (Tex. 1986). Additionally, “in order that there is no delay, the courts have looked

more favorably upon defendants ready, willing and able to go to trial almost immediately.” Id. at

98. Neither of those considerations are “the sine qua non of granting the motion.” Id. We must

consider the facts of each case, and the motion for new trial must address whether a new trial

would cause neither delay nor undue prejudice. See id.

       Considering Craddock’s second requirement, the only meritorious claim or defense that

Facundo raises on appeal is her claim that she is entitled to statutory liquidated damages and

attorney’s fees under section 5.077 of the Texas Property Code. But at the time Facundo filed the

motion for new trial, the trial court had dismissed her claim under section 5.077 of the Texas

Property Code, and her motion for new trial provided only legal conclusions regarding her claim
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under section 5.077. The record does not show Facundo’s dismissed claim under section 5.077 of

the Texas Property Code was a meritorious claim or defense. See Milestone Operating, 388 S.W.3d

at 308; Craddock, 133 S.W.2d at 126.

       Considering Craddock’s third requirement, Facundo’s motion for new trial does not state

she offered to reimburse the Villezcases for their costs or that Facundo was ready, willing, or able

to go to trial almost immediately on her claim under section 5.077. The motion for new trial merely

states the motion was not intended to cause delay; but that alone does not provide any basis to

conclude a new trial would cause neither delay nor undue prejudice, as required by Craddock. See

Milestone Operating, 388 S.W.3d at 308; Craddock, 133 S.W.2d at 126. Furthermore, the record

shows Facundo failed to comply with the trial court’s order on the Villezcases’ special exceptions,

and failed to appear for the pretrial hearing and trial. Facundo also does not argue she presented a

meritorious defense to the Villezcases’ counterclaim for a foreclosure sale. Based on the history

of this case and the nature of the Villezcases’ counterclaim, the trial court could have concluded a

new trial would cause either delay or undue prejudice. We therefore cannot say the trial court

abused its discretion by denying Facundo’s second, verified motion for new trial. See Brite, 387

S.W.3d at 838.

                                          CONCLUSION

       We affirm the trial court’s judgment.

                                                  Luz Elena D. Chapa, Justice




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