Calvin Joseph Rodriguez and Elizabeth Ann Rodriguez v. Jack Brandom, Chief Executive Officer of Country Place Mortgage Ltd, and Country Place Mortgage Ltd, as Nominee for Lender and Lender's Successors and Assigns

                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-23-00209-CV

CALVIN JOSEPH RODRIGUEZ
AND ELIZABETH ANN RODRIGUEZ,
                                                           Appellants
v.

JACK BRANDOM, CHIEF EXECUTIVE OFFICER
OF COUNTRY PLACE MORTGAGE LTD, AND
COUNTRY PLACE MORTGAGE LTD,
AS NOMINEE FOR LENDER AND LENDER'S
SUCCESSORS AND ASSIGNS,
                                    Appellees



                           From the 52nd District Court
                              Coryell County, Texas
                           Trial Court No. DC-22-54246


                          MEMORANDUM OPINION


      In four issues, pro se appellants, Calvin Joseph Rodriguez and Elizabeth Ann

Rodriguez, challenge the trial court’s judgment denying appellants’ request for a default

judgment, striking appellants’ pleadings for discovery abuse, and dismissing appellants’

claims against appellees, Jack Brandom, Chief Executive Officer of Country Place
Mortgage Ltd., and Country Place Mortgage Ltd as nominee for lender and lender’s

successors and assigns, with prejudice. Specifically, appellants contend that: (1) the trial

court erred by failing to grant a default judgment in their favor; (2) this Court should

modify the judgment to dismiss appellees’ claims; and (3) they were not required to

follow the trial court’s discovery order because appellees did not timely file their answer;

and (4) they are entitled to injunctive relief because the trial court acted ultra vires.

Because we overrule all of appellants’ issues on appeal, we affirm.

                                       Background

       In this matter involving the foreclosure of property in Kempner, Texas, appellants

filed a pro se original petition for wrongful foreclosure and an application for temporary

restraining order and injunctive relief against appellees.      In their original petition,

appellants indicated that they secured financing from Country Place Mortgage LLC by

virtue of signing a promissory note to purchase the Kempner property in August 2017.

Appellants also signed a deed of trust as security for the note. The promissory note was

in the amount of $148,948.

       Thereafter, on October 11, 2022, Country Place Mortgage sent appellants a notice

of acceleration and notice of foreclosure sale because appellants had failed to make the

required monthly payments under the note. In response to these notices, appellants sent

Country Place Mortgage what they characterized as a negotiable instrument in the

amount of $188,527,73 in full satisfaction for the debt remaining under the note:


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       By letter dated November 10, 2022, counsel for Country Place Mortgage notified

appellants that the alleged check in the amount of $188,527.73 was received, but that “our



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client’s financial institution has verified that the routing and account numbers on the

check are invalid, and the check is not negotiable.” Accordingly, Country Place Mortgage

indicated that it would proceed with foreclosure on the property on December 6, 2022.

       On December 5, 2022, a day before the scheduled foreclosure sale, appellants filed

their original petition, alleging that the foreclosure sale was wrongful because the

underlying note and deed of trust were fraudulent, Country Place Mortgage wrongfully

denied or refused the negotiable instrument as payment for the remaining balance owed

under the note, and because Country Place Mortgage never had a secured debt given that

the terms within the note and deed were unenforceable.

       The return of service indicated that appellants’ original petition was served on Jack

Brandom, CEO of Country Place Mortgage, on December 20, 2022, at 12:55 p.m. in

Addison, Texas. On January 18, 2023, appellees filed an original answer denying the

contentions made by appellants in their original petition and noting that Country Place

Mortgage had not been sued in the proper capacity. Appellees also sent discovery

requests to appellants.

       On February 28, 2023, appellants filed an amended petition. Appellees responded

on March 2, 2023, by filing a motion to compel discovery, noting that initial disclosure

responses were due from appellants on or before February 20, 2023, and that appellants

had not provided any responses to the outstanding discovery requests.




Rodriguez v. Brandom, et al.                                                          Page 4
       Appellants filed objections to appellees’ answer and motion to compel discovery.

However, after a hearing, the trial court granted appellees’ motion to compel discovery

and ordered appellalnt to provide complete responses to initial disclosures no later than

fifteen days from April 18, 2023.

       Subsequently, on April 21, 2023, appellants filed a “motion for summary

judgment,” arguing that they were entitled to judgment on their claims because appellees

did not timely file their answer to appellants’ original petition. Appellants did not

provide the discovery responses ordered by the trial court.

       On May 10, 2023, appellees filed an amended motion for sanctions, requesting that

the trial court strike appellants’ pleadings and dismiss their claims under Texas Rule of

Civil Procedure 215 as a sanction for failing to comply with the trial court’s April 18, 2023

order requiring complete responses to appellees’ initial disclosures. The trial court set

appellees’ motion to dismiss for a hearing.

       Appellants filed a notice on May 15, 2023, stating that they intended to move for

default judgment against appellees at a June 20, 2023 hearing, and objections to appellees’

motion for sanctions. Thereafter, appellees filed a response to appellants’ motion for

summary judgment to which appellants objected.

       The trial court conducted a hearing on all pending motions. At the conclusion of

the hearing, the trial court overruled appellants’ objection to appellees’ purported failure

to timely file an answer because appellees filed an answer, and because appellants failed


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to seek a default before said answer was filed. The trial court also denied appellants’

motion for default judgment on the ground that Texas Rule of Civil Procedure 92 does

not require appellees to file an answer to each and every amended petition that appellants

filed.   The trial court determined that appellants had wholly failed to respond to

discovery requests from appellees and to the trial court’s April 18, 2023 order. As such,

under Texas Rule of Civil Procedure 215.2(b), the trial court struck appellants’ pleadings

and dismissed appellants’ claims as a sanction for discovery abuse. This appeal followed.

                                            Analysis

         In their first issue, appellants contend that the trial court erred by failing to grant

a default judgment in their favor based on their allegation that appellees failed to timely

file their answer. We disagree.

         A plaintiff may properly seek a default judgment after the defendant’s time to file

an answer has expired and the citation and proof of service have been on file with the

clerk for at least ten days, excluding the day of filing and the day of judgment. See TEX.

R. CIV. P. 107, 239. However, it is well settled that rendition of a default judgment when

there is an answer on file is error—even if the answer was filed late. See id. at R. 239; Davis

v. Jeffries, 

 (Tex. 1989) (per curiam) (holding that a default judgment

was improper even though the answer was not filed before its due date, but rather, it was

filed two hours and twenty minutes before the default judgment was signed); see also

Lozano v. Lozano, No. 04-12-00361-CV, 

, at *4 (Tex. App.—San


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Antonio Jan. 30, 2013, no pet.) (mem. op.) (observing that a defendant’s filing of a late

answer precludes a trial court’s award of default judgment); Alvarez v. Kirk, No. 04-04-

00031-CV, 

, at *3 (Tex. App.—San Antonio Nov. 4, 2004, no

pet.) (mem. op.) (“If the defendant files an answer after the deadline to answer but before

the trial court considers a motion for default judgment, the court cannot render a default

judgment.”). Here, appellants did not seek a no-answer default judgment until after

appellees had filed their answer. Because appellees’ answer was on file before appellants’

sought a no-answer default judgment, we cannot say that the trial court erred by failing

to grant appellants a no-answer default judgment. Accordingly, we overrule appellants’

first issue.

        In their second issue, appellants argue that appellees did not have standing to

request that appellants’ claims be dismissed because appellees did not timely file their

answer, and because appellants were entitled to a no-answer default judgment. As stated

above, appellants were not entitled to a no-answer default judgment because appellees’

answer was on file before appellants moved for a no-answer default judgment. We

therefore conclude that appellants’ second issue lacks merit and overrule the issue.

        In their third issue, appellants assert that they were not required to comply with

the trial court’s April 18, 2023 discovery order because it was of no effect due to appellees’

failure to timely file their answer. Appellants do not cite any authority in support of this

contention. See TEX. R. APP. P. 38.1(i). Furthermore, this issue is once again premised on


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the contention that appellees’ untimely answer entitled appellants to a no-answer default

judgment. For the reasons stated in the first issue, we conclude that this contention lacks

merit. As such, we overrule appellants’ third issue.

       In their fourth issue, appellants complain that injunctive relief should be issued

immediately because the trial court acted ultra vires. Appellants’ contention in this issue

is premised once again on the assumption that appellants were entitled to a no-answer

default judgment based on the appellees’ untimely answer. We have already concluded

that appellants were not entitled to a no-answer default judgment because appellees’

answer was on file before appellants sought a no-answer default judgment.

       We further note that appellants have not demonstrated that a writ of injunction is

necessary to enforce the jurisdiction of this Court. See TEX. GOV’T CODE ANN. § 22.221(a)

(providing that appellate courts’ authority to issue writs of injunction is limited to

occasions where doing so is necessary to enfore the jurisdiction of the court); Becker v.

Becker, 

 (Tex. App.—Houston [1st Dist.] 1982, orig. proceeding) (stating

that appellate courts do not have jurisdiction to issue a writ of injunction merely to

preserve the status quo or prevent loss or damage to one of the parties during the appeal);

Pace v. McEwen, 

 (Tex. Civ. App.—San Antonio 1980, orig. proceeding)

(same); see also In re Barbee, No. 12-09-00165-CV, 

, at *10 (Tex.

App.—Tyler Aug. 25, 2010, orig. proceeding) (mem. op.) (same).           Accordingly, we

overrule appellants’ fourth issue.


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                                     Conclusion

       Having overruled all of appellants’ issues on appeal, we affirm the judgment of

the trial court.




                                                STEVE SMITH
                                                Justice

Before Chief Justice Gray,
       Justice Johnson, and
       Justice Smith
Affirmed
Opinion delivered and filed December 14, 2023
[CV06]




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