AAF Auto Group, Inc. D/B/A America's Auto Financial v. Dorian Hale

Reversed and Remanded and Memorandum Opinion filed April 30, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00542-CV

AAF AUTO GROUP, INC. D/B/A AMERICA’S AUTO FINANCIAL,
Appellant
V.

DORIAN HALE, Appellee

On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1171099

MEMORANDUM OPINION
Because the plaintiff presented no evidence at trial, we conclude that the
evidence is legally insufficient to support the trial court’s post-answer default
judgment, and we reverse and remand for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee/plaintiff Dorian Hale alleged various violations of the Texas
Deceptive Trade Practices and Consumer Protection Act by appellant/defendant
AAF Auto Group, Inc. d/b/a America’s Auto Financial (“AAF”), arising out of
AAF’s sale of a 2006 Hummer (the “Vehicle”) to Hale in May 2021. Hale alleged
that AAF represented that the Vehicle was running and did not need any repairs
and that shortly after buying it, Hale discovered there were substantial leaks in the
cabin that damaged its headliner and electronics. Hale contended that AAF knew
about the leaks before it sold him the Vehicle. Hale did not verify his petition.

AAF filed an answer denying Hale’s allegations. AAF asserted that it is not
liable because the purchase contract specifically and unequivocally stated that the
Vehicle was being sold in “as-is.” AAF asserted that it told Hale of the headliner
issue when Hale inspected the Vehicle before purchase. According to AAF it gave
Hale an approximate $200 discount to have the headliner repaired. AAF claimed
that after Hale bought the Vehicle and learned that the Vehicle repair would be an
additional $100, AAF paid the repair company the additional $100.

On February 21, 2022, the trial court granted a motion to withdraw filed by
Hale’s lawyers. From that point forward Hale represented himself.

The case was set for a bench trial by video conference on April 4, 2022 at
10:30 a.m. Hale appeared for trial but AAF’s counsel did not appear at 10:30 a.m.
on the trial date. According to AAF’s verified and uncontroverted motion for new
trial, the following occurred on April 4, 2022:

• AAF’s counsel was unusually delayed due to factors in other cases
beyond counsel’s control.
• AAF’s counsel was held by another court to represent an indigent
individual being held in custody for felony criminal charges.
• AAF’s counsel was required to appear at 9:00 a.m. on April 4, 2022,
in that criminal case and had every expectation of appearing before
the trial court in today’s case at 10:30 a.m.

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• Counsel appeared for the trial setting in this case at approximately
10:47 a.m. by video conference.
• After approximately five minutes had passed without gaining entrance
into the video conference, counsel disconnected and attempted to re-
establish connection, presuming that the first connection was faulty.
• Eventually counsel did establish a good connection and was let into
the trial setting online by the trial court at approximately 10:55 a.m.
• AAF’s counsel attempted to explain to the trial court the unintentional
delay and apologized for the tardiness due to being held up on matters
that began in another court at 9:00 a.m.
• No exhibits were efiled or otherwise sent on Hale’s behalf to support
Hale’s allegations, as required by the trial court.
• No evidence from Hale was before the trial court at the time of trial.
The trial court ruled that it had already made a decision to grant judgment in
favor of Hale, despite the absence of evidence supporting Hale’s claims. 1 After
Hale submitted a proposed judgment, the trial court signed a final, post-answer
default judgment in which the trial court stated that despite having been duly
notified of the trial setting, AAF failed to appear. Without stating that Hale had
presented any evidence or that the trial court had considered any evidence, the trial
court ordered that Hale recover $14,995, plus post-judgment interest and court
costs from AAF.

AAF timely filed a motion for new trial in which AAF asserted that a post-
answer default judgment must be supported by evidence but that no evidence was
before the trial court. The motion for new trial was overruled by operation of law.

1
The statement-of-facts section of the appellant’s brief contains this proposition, and Hale has
not contradicted it. Therefore, we accept this statement as true. See Tex. R. App. P. 38.1(g)
(stating that “[i]n a civil case, the curt will accept as true the facts stated unless another party
contradicts them”); Johnson v. Office of Attorney General of Texas, No. 14-11-00842-CV, 2013
WL 151622, at *1 (Tex. App.—Houston [14th Dist.] Jan. 15, 2013, no pet.) (mem. op.).

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AAF timely perfected this appeal.2

II. ISSUE AND ANALYSIS

Did the trial court err in rendering a post-answer default judgment
because no evidence was submitted to or admitted by the trial court?
On appeal AAF asserts in a sole issue that the trial court erred in granting a
post-answer default judgment because no evidence was submitted to or admitted
by the trial court. Liberally construing AAF’s brief, AAF also argues that the trial
court erred in granting a post-answer default judgment because the evidence before
it was legally insufficient to support the judgment.3 The failure to appear is
considered neither an abandonment of the defendant’s answer nor an implied
confession of any issues. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979).
In the context of a post-answer default, a judgment cannot be rendered on the
pleadings. Id. The plaintiff still must offer evidence and prove its case. Paradigm
Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012); In re
E.M.W., No. 14-10-00964-CV, 2011 WL 5314525, at *4 (Tex. App.—Houston
[14th Dist.] Nov. 3, 2011, no pet.) (mem. op.) (holding that plaintiff still must offer
evidence and prove plaintiff’s case as in a judgment following a contested trial).

We review the legal sufficiency of the evidence supporting a post-answer
default judgment under the same standard of review governing the legal
sufficiency of the evidence at a contested trial. When reviewing the legal
sufficiency of the evidence, we consider the evidence in the light most favorable to

2
Hale represents himself on appeal. We liberally construe briefs and other filings submitted by
pro se parties, and we hold pro se litigants to the same standards as licensed attorneys, requiring
them to comply with all applicable laws and rules of procedure. See Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Rogers v. City of Houston, 627 S.W.3d 777, 786
n.1 (Tex. App.—Houston [14th Dist.] 2021, no pet.).
3
In a non-jury case, a party may challenge the legal sufficiency of the evidence for the first time
on appeal. See Tex. R. App. P. 33.1(d); Briones v. Brazos Bend Villa Apartments, 438 S.W.3d
808, 815 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

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the challenged finding and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We are to credit
favorable evidence if a reasonable factfinder could and disregard contrary evidence
unless a reasonable factfinder could not. See id. at 827. We must determine
whether the evidence at trial would enable reasonable and fair-minded people to
find the facts at issue. See id. The factfinder is the only judge of witness credibility
and the weight to give to testimony. See id. at 819.
In his petition, Hale alleged various violations of the Texas Deceptive Trade
Practices and Consumer Protection Act by AAF, arising out of AAF’s sale of the
Vehicle to Hale (“DTPA Claims”). The judgment and the appellate record indicate
that the trial court did not hear any evidence at the bench trial that resulted in the
post-answer default judgment. In addition, in the statement-of-facts section of
AAF’s brief, AAF asserts that (1) the trial court ruled that it had already made a
decision to grant judgment in favor of Hale, despite the absence of evidence
supporting Hale’s claims; (2) no evidence was submitted by Hale proving Hale’s
claims of liability in any manner against AAF; and (3) no evidence was submitted
by Hale proving the contention that damages existed, much less proving a proper
calculation of damages. Hale has not contradicted any of these propositions.
Therefore, we accept each of these statements as true. See Tex. R. App. P. 38.1(g)
(stating that “[i]n a civil case, the court will accept as true the facts stated unless
another party contradicts them”); Johnson v. Office of Attorney General of Texas,
No. 14-11-00842-CV, 2013 WL 151622, at *1 (Tex. App.—Houston [14th Dist.]
Jan. 15, 2013, no pet.) (mem. op.).

In this context the trial court may not render judgment on the pleadings. See
Stoner, 578 S.W.2d at 682. We conclude that the evidence is legally insufficient to
support the post-answer default judgment. Therefore, we sustain AAF’s sole issue

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and remand for a new trial.4 See Dolgencorp of Texas, Inc. v. Lerma, 288 S.W.3d
922, 930 (Tex. 2009) (holding that the proper disposition is to reverse and remand
a case involving a post-answer default judgment supported by legally insufficient
evidence rather than to render judgment); Texas G&S Investments, Inc. v.
Constellation Newenergy, Inc., 459 S.W.3d 252, 257–58 (Tex. App.—Houston
[14th Dist.] 2015, no pet.).

III. CONCLUSION

Hale did not present legally sufficient evidence of his DTPA Claims
necessary for this court to sustain the post-answer default judgment rendered in
Hale’s favor. Accordingly, the trial court’s judgment is reversed, and the case is
remanded for a new trial.

/s/ Randy Wilson
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.

4
We need not and do not address AAF’s other arguments under its sole issue because none of
them would afford AAF any greater relief than a new trial.

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