Opinion issued October 10, 2013




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00659-CV
                            ———————————
                         TODD SIMMONS, Appellant
                                        V.
   MITEL LEASING, INC. F/K/A INTER-TEL LEASING, INC., Appellee



                   On Appeal from the 113th District Court
                            Harris County, Texas
                      Trial Court Case No. 2010-65027



                          MEMORANDUM OPINION

      In this breach of lease case, Mitel Leasing, Inc. f/k/a Inter-Tel Leasing, Inc.

(“Mitel Leasing”) sued Todd Simmons as the personal guarantor on a lease for

business personal property. At trial, Simmons, acting pro se, allegedly informed
the trial court that he had received only fourteen days’ notice of the trial setting,

and he orally moved for a continuance. The trial court denied this request, the case

proceeded to trial, and Simmons participated in the trial. After the trial court ruled

against him, Simmons retained counsel and moved for a new trial. The trial court

denied this motion. In two issues, Simmons contends that he did not receive forty-

five days’ notice of the trial setting as required by Texas Rule of Civil Procedure

245, and, therefore, the trial court abused its discretion in denying his motion for

new trial.

      We affirm.

                                    Background

      In June 2004, Shirley Pepper, the executive vice president of Internet Tech

Services, Inc. (“Internet Tech”), and Simmons, the chief operating officer,

executed a lease agreement with Mitel Leasing on behalf of Internet Tech. Under

the initial lease agreement, Internet Tech leased communications equipment from

Mitel Leasing for a period of thirty-six months.        Both Pepper and Simmons

personally guaranteed Internet Tech’s performance of its lease obligations. The

parties supplemented the lease agreement on several occasions over the next few

years, with Internet Tech leasing additional equipment from Mitel Leasing and the

parties agreeing to extend the lease period. Eventually, Internet Tech stopped

making payments under the lease.

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       On October 4, 2010, Mitel Leasing sued Internet Tech as lessee and

Simmons and Pepper as guarantors. Mitel Leasing alleged that, under the lease

agreement, Internet Tech, Simmons, and Pepper owed $37,093.19 in past and

future rental payments for the equipment. It is undisputed that Mitel Leasing

effectuated service of citation only as to Simmons.

       Simmons, acting pro se, timely answered on December 1, 2010. He alleged

that he had resigned from Internet Tech in January 2009 and that Internet Tech had

no assets and had permanently ceased doing business on June 30, 2010.

       The parties tried the case before the court on March 6, 2012. At trial,

Simmons allegedly informed the trial court that he did not receive notice of the

trial setting until February 22, 2012, fourteen days before trial, and he orally

moved for a continuance. The trial court denied this request and proceeded with

trial. Simmons participated in the trial. He did not present a reporter’s record of

the trial to this Court.

       After the trial court announced that it would render judgment in favor of

Mitel Leasing, Simmons retained counsel and moved for a new trial on March 28,

2012, prior to entry of final judgment. In his affidavit in support of his motion,

Simmons averred that, after he made his initial appearance via his answer on

December 1, 2010, he received no further information from either Mitel Leasing’s

counsel or the trial court concerning the trial setting until February 22, 2012, when

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he received a “reminder” notice that trial was set for March 5, 2012. Simmons

averred that he immediately called the court coordinator and asked if he could

request a continuance or appear by phone because he was scheduled to be out of

state for work on the trial date. He further averred that the court coordinator

informed him that he had to appear in person on March 5, 2012; 1 that he did appear

for trial and explained to the court that “due to the lack of notice of the trial setting

[he] was unprepared for trial and requested a continuance of trial and the

continuance was denied”; and that, after the trial court found in favor of Mitel

Leasing, he retained counsel to move for a new trial.

      On May 4, 2012, the trial court rendered final judgment in favor of Mitel

Leasing for $33,695.85 due under the lease, pre- and post-judgment interest, and

court costs.

      On May 16, 2012, Mitel Leasing responded to Simmons’ new trial motion.

It argued that, although Simmons claimed that he did not receive timely notice of

the trial setting, the trial court’s docket control order “indicates that it was mailed

to Defendant Todd Simmons at [his home address] on or about June 14, 2011 and

provided the Defendant with notice of all future deadlines and trial settings in this

matter.” Mitel Leasing also noted that the address listed for Simmons on the


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      Simmons then called the court coordinator on March 2, 2012, to confirm the trial
      date of March 5. The court coordinator confirmed that date but then called
      Simmons back to inform him that the court had set trial for March 6, 2012.
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docket control order was the same address used for the setting reminder and used

by Simmons himself when he filed his answer.

      The trial court held a hearing on Simmons’ new trial motion on May 18,

2012. Simmons testified that after he answered he did not have any contact with

Mitel Leasing’s attorney until the date of trial. He stated that he first learned of the

March 5, 2012 trial date on February 22, 2012, when he received the setting

reminder via regular mail. He further stated that he first saw the trial court’s

docket control order when his counsel showed it to him on the date of the new trial

hearing. He testified that he never threw away any mail sent to him from the court.

      The trial court, upon reviewing the setting reminder, noted that “the date it

was generated, which is usually the date it’s sent out by the clerk’s office, is

January 5, 2012.” Simmons acknowledged this, but again testified that he did not

actually receive the reminder until February 22, 2012, and that there was never

more than a five-day period in which he did not check his mail. Simmons testified

that he raised the notice issue with the trial court on March 6, 2012, and moved for

a continuance, which the trial court denied.        On cross-examination, Simmons

acknowledged that he did not contact an attorney after receiving the setting

reminder and that he did not file a written motion for continuance.

      Mitel Leasing did not present any evidence at this hearing. Instead, its

counsel argued:

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      I received my notice timely of the trial setting. The presumption is
      that the address was correct on the defendant’s notice and the
      presumption was that the defendant received his; but I have no way of
      saying that he did or did not, obviously.

      I would only further add that the defendant came, appeared at trial,
      conducted the proceeding and even called and brought on additional
      witnesses and, therefore, conducted the trial proceeding; and the court
      awarded judgment against him.

The trial court denied Simmons’ motion for new trial.

      Simmons then filed a “supplemental” motion for new trial on May 29, 2012,

again arguing that he was entitled to a new trial because he did not receive forty-

five days’ notice of the trial setting pursuant to Rule 245. Simmons also argued

that this case should be treated as a post-answer default judgment, and, as such, the

trial court should apply the three-factor test of Craddock v. Sunshine Bus Lines,

Inc. to grant a new trial. See 133 S.W.2d 124, 126 (Tex. 1939).

      Simmons also attached a more detailed affidavit that substantially tracked

his testimony at the May 18, 2012 new trial hearing. He averred that he usually

checked his mail at his home address in San Marcos daily, but, at the least, he

checked his mail every five days. He again averred that he did not receive notice

of the March 5, 2012 trial setting until February 22, 2012. He claimed that he was

unable to adequately prepare for trial due to this short notice. He also averred that

he never received a copy of the court’s docket control order, which had a notation

that the court generated the order on June 14, 2011, and that he did not see a copy

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of this document until his counsel showed it to him at the new trial hearing. He

reiterated that he did not receive notice of the trial setting until February 22, 2012,

that he never threw away any mail from the court or Mitel Leasing’s counsel, and

that the only mail he ever received from the court was the setting reminder.

Simmons further averred that he did not have the financial resources to hire an

attorney at the time he filed an answer, but it was never his intention to proceed to

trial without representation, and he would have retained counsel earlier than he did

if he had had proper notice of the trial setting.

      After a non-evidentiary hearing, the trial court denied Simmons’

supplemental new trial motion, and this appeal followed.

                           Proper Notice of Trial Setting

      In his first issue, Simmons contends that the trial court erred when it

conducted the trial without giving him forty-five days’ notice of the first trial

setting. In his second issue, Simmons contends that the trial court erroneously

denied his motion for new trial on this basis. We consider these issues together.

      A.     Standard of Review

      We review the denial of a motion for new trial for an abuse of discretion.

Ashworth v. Brzoska, 274 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.]

2008, no pet.). The trial court abuses its discretion if it acts without reference to

any guiding rules or principles or fails to correctly analyze or apply the law.

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Sozanski v. Plesh, 394 S.W.3d 601, 604 (Tex. App.—Houston [1st Dist.] 2012, no

pet.).

         B.    Notice of Trial Setting

         When a defendant makes an appearance in a case, such as by filing an

answer, the defendant is entitled to notice of the trial setting as a matter of due

process. See LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91

(Tex. 1989) (per curiam); Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655,

659 (Tex. App.—San Antonio 2002, no pet.). 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. The forty-five-day notice provision of Rule 245 is mandatory.

Custom-Crete, 82 S.W.3d at 659; In re Marriage of Parker, 20 S.W.3d 812, 818

(Tex. App.—Texarkana 2000, no pet.); Hardin v. Hardin, 932 S.W.2d 566, 567

(Tex. App.—Tyler 1995, no writ). A trial court’s failure to comply with the notice

provision of Rule 245 in a contested case “deprives a party of its constitutional

right to be present at the hearing, to voice its objections in an appropriate manner,

and results in a violation of fundamental due process.” Custom-Crete, 82 S.W.3d




                                              8
at 659 (citing Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.—El Paso 2000,

no pet.)). Failure to give proper notice is therefore grounds for reversal. Id.

      However, a party waives any error resulting from the trial court’s failure to

comply with Rule 245 if he proceeds to trial and fails to object to the lack of

notice. Id. at 658; In re Marriage of Parker, 20 S.W.3d at 818; In re J.(B.B.)M.,

955 S.W.2d 405, 408 (Tex. App.—San Antonio 1997, no pet.); see also State Farm

Fire & Cas. Co. v. Price, 845 S.W.2d 427, 432 (Tex. App.—Amarillo 1992, writ

dism’d) (“By failing to timely and specifically object to the first setting on the

basis of insufficiency of notice under rule 245, State Farm failed to preserve any

error for our review.”). “A party may waive a complaint by failing to take action

when the party receives some, but less than forty-five days’, notice.” Custom-

Crete, 82 S.W.3d at 659.

      In In re J.(B.B.)M., the appellant contended that, prior to a hearing to

terminate her parental rights, she moved for a continuance “based upon lack of

adequate notice and the unavailability of her retained attorney.” 955 S.W.2d at

408. The record before the San Antonio Court of Appeals did not contain a written

motion or supporting affidavit, and the appellant acknowledged that “no record of

the oral motion was made.” Id.; see also TEX. R. CIV. P. 251 (“No application for a

continuance shall be heard before the defendant files his defense, nor shall any

continuance be granted except for sufficient cause supported by affidavit, or by

                                          9
consent of the parties, or by operation of law.”); City of Houston v. Blackbird, 658

S.W.2d 269, 272 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d) (holding that

when appellant’s motion for continuance did not comply with Rule 251 because it

was not verified, appellate court must presume that trial court did not abuse its

discretion in denying motion). The San Antonio Court of Appeals noted that the

appellant appeared at the hearing with substitute counsel, who participated in the

hearing by presenting argument and cross-examining witnesses. In re J.(B.B.)M.,

955 S.W.2d at 408. The court concluded that, “[b]y failing to properly object to

the short notice of the trial setting and by proceeding to trial, [the appellant] has

not preserved [the improper notice] issue for appellate review.” Id.; see also Guyot

v. Guyot, 3 S.W.3d 243, 246 (Tex. App.—Fort Worth 1999, no pet.) (“[A] point on

appeal based on a trial court’s ruling on a motion, request, or objection must be

supported by a showing in the record that the motion, request, or objection was

presented to and acted upon by the trial court.”).

      This case is factually analogous to In re J.(B.B.)M. Here, Simmons contends

that at trial on March 6, 2012, he informed the trial court that he did not receive

notice of the trial setting until February 22, 2012, and he orally moved for a

continuance.    Simmons did not file a written motion for continuance or a




                                          10
supporting affidavit and, thus, did not comply with Rule 251. 2 See TEX. R. CIV. P.

251 (requiring motions for continuance to be supported by affidavit); Dempsey v.

Dempsey, 227 S.W.3d 771, 776 (Tex. App.—El Paso 2005, no pet.) (“The motion

for continuance was not in writing and was not in compliance with Rule 251 of the

Texas Rules of Civil Procedure, therefore, the oral request for a continuance did

not preserve error.”); Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex.

App.—Dallas 2003, pet. denied) (holding same when appellant presented oral

motion for continuance without supporting affidavit).

      After the trial court denied the motion for continuance and began the trial on

the merits of the case, Simmons participated in the trial. He has not presented to

this Court a record of the trial proceedings. The burden is on Simmons, as the

appellant, to ensure that a sufficient record is presented to show error requiring

reversal. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per

curiam) (holding that appellant must either comply with rule of appellate procedure

relating to partial reporter’s record or file complete reporter’s record; otherwise,

appellate court will presume that omitted portions are relevant to disposition of

2
      To the extent Simmons contends that he should not have been required to comply
      with the procedural rules concerning motions for continuance because he was
      acting pro se at the time, we note that “pro se litigants are not exempt from the
      rules of procedure.” Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per
      curiam); Godfrey v. Sec. Serv. Fed. Credit Union, 356 S.W.3d 720, 723 (Tex.
      App.—El Paso 2011, no pet.) (holding same and noting that allowing otherwise
      “could give a pro se litigant an unfair advantage over litigants represented by
      counsel”).
                                         11
appeal); Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1

(Tex. App.—Houston [1st Dist.] 2012, no pet.) (agreeing with appellee that

appellant’s failure to obtain reporter’s record “makes it impossible to establish that

the trial court abused its discretion”); see also Sandoval v. Comm’n for Lawyer

Discipline, 25 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied) (holding, when addressing sufficiency of evidence contentions, that

because appellant did not file complete reporter’s record or comply with

procedures for partial reporter’s record, court would “presume the omitted portions

of the reporter’s record support the judgment”).

      Because Simmons has not presented a record to this Court demonstrating

that he properly objected to the trial court’s failure to give forty-five days’ notice

of the trial setting and because he proceeded to participate in the trial on the merits,

we follow In re J.(B.B.)M. and hold that Simmons has not preserved his issues for

appellate review. See 955 S.W.2d at 408; see also Padilla v. Comm’n for Lawyer

Discipline, 87 S.W.3d 624, 626 (Tex. App.—San Antonio 2002, pet. denied)

(“Neither of the record references provided by Padilla supports his contention that

he presented his complaint regarding the rule 245 violation to the trial judge, and

our review of the record revealed no specific complaint based on rule 245 or

inadequate notice. Because Padilla failed to present his complaint regarding the




                                          12
rule 245 violation to the trial judge, any complaint he may have had on this point is

waived.”).

      We overrule Simmons’ first and second issues.3




3
      Simmons also contends that his case should be treated like a post-answer default
      judgment case, and, as such, we should apply the Craddock factors in determining
      whether he is entitled to a new trial. Even if we address this issue, which we need
      not reach because Simmons failed to preserve his lack-of-notice complaint,
      Simmons has provided no authority to support the proposition that Craddock is
      applicable to this case in which both parties participated in a trial on the merits.
      See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002)
      (“Our purpose in adopting the Craddock standard was to alleviate unduly harsh
      and unjust results at a point in time when the defaulting party has no other remedy
      available. But when our rules provide the defaulting party a remedy, Craddock
      does not apply.”) (citing Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124,
      126 (Tex. 1939)); LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (per
      curiam) (“[W]e agree that Craddock has no application here because the case was
      tried on the merits . . . .”); see also Velasco v. Ayala, 312 S.W.3d 783, 791 (Tex.
      App.—Houston [1st Dist.] 2009, no pet.) (holding, when party was represented by
      attorney ad litem and trial on merits was conducted, that “the trial court’s decree is
      not a true default judgment”); In re K.C., 88 S.W.3d 277, 279 (Tex. App.—San
      Antonio 2002, pet. denied) (holding, when party’s attorney, but not party,
      appeared for trial and trial on merits was conducted, that “there was no default and
      no basis for applying Craddock”). Moreover, Simmons has failed to provide a
      reporter’s record of the March 6, 2012 trial; thus, we have no record of what
      actually occurred in the proceeding held on this date. Simmons argues that this
      case should be considered a post-answer default judgment case, but he has not
      supplied a record substantiating that contention.
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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Higley, and Massengale.




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