|DEFAULT JUDGMENTS | DUE PROCESS | STRIKING OF PLEADINGS | EFFECT OF INVOKING THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION IN A CIVIL CASE
Sells v. Drott, 259 S.W.3d 156 (Tex. 2008)
No. 07-0848 (Tex. 2008)(per curiam) (default judgment set aside on lack of notice grounds) (entitlement to
notice of evidentiary hearing resulting in striking of pleadings, prejudicial effect of invoking fifth amendment in
civil proceeding, adverse inference)
LAVERNA SELLS v. EARL DROTT; from Smith County; 12th district
(12-07-00020-CV, ___ S.W.3d ___, 07-18-07)
Trial court had struck answer, which had been filed by family member who is not an
attorney. Supreme Court holds that the defendant was entitled to notice of hearing
involving a challenge to the validity of the answer on file.
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment, vacates the trial court judgment, and
remands the case to the trial court.
(Per Curiam Opinion in pdf)
Terms: default judgment, sufficiency of service, notice of hearing, right to notice, pro se litigants, self-
representation, A/N/F status, capacity, practicing law without a license, unauthorized practice of law,
document forgery | effect of invoking privilege against self-incrimination in a civil proceeding, adverse
inference based on invocation of Fifth Amendment privilege against giving potentially incriminating evidence
Case notes and commentary on this case:
Justices vacate judgment against elderly woman in Southeast Texas Record
The Jefferson Court Blog: Supreme Sympathy
Links: Default Judgment Decisions from the Texas Supreme Court | Other Texas Supreme Court Decisions |
Default judgment appellate opinions from the Houston Courts of Appeals
Sells v. Drott, 259 S.W.3d 156 (Tex. 2008)
LaVerna Sells asks the Court to reverse a default judgment granted against her in a suit brought by Earl Drott
for specific performance of a contract to buy Sells's property. Although facially valid answers had been timely
filed on Sells's behalf, the trial court struck those answers without prior notice to Sells that the validity of the
answers was disputed. Regardless of whether the trial court had some evidence to support striking the
answers on file for Sells, the trial court was required to give her notice and an opportunity to present evidence
and argument before striking the answers and granting a default judgment. We therefore reverse the court of
appeals' judgment, vacate the default judgment, and remand the case to the trial court for further proceedings.
Sells is an eighty-two year old woman who has suffered four strokes in the last five years. She owns all or part
of four tracts of land that are part of a larger area of land Drott desired to purchase. Drott alleges that Sells
issued a power of attorney to LaCheryl Stebbings, one of the other landowners, to list and sell her share of
the property. Drott further claims that he entered into an agreement to purchase the property with Stebbings
as the agent for herself, Sells, and the other landowners.
Sells refused to honor the contract with Drott, arguing that the power of attorney only authorized Stebbings to
list the property and did not confer the power to sell it. Drott sued Sells seeking specific performance of the
contract. Drott also added George Lampkin, Sells's brother and an additional landowner, as a defendant in
the suit. Sells was served with the lawsuit at her home address in Houston, Texas. An answer and later an
amended answer, both ostensibly signed by Sells, were timely filed with the trial court. These answers listed a
Garland, Texas, address for Sells. Because no answer was filed on Lampkin's behalf, Drott obtained a default
judgment against him.
Drott then moved to sever his claims against Lampkin, and the trial court scheduled a hearing on the motion
to sever for October 19, 2006. At the hearing, neither Sells nor Lampkin appeared. Instead, Mona Tates,
Sells's daughter, came to the hearing as “next friend” of her mother and with a letter from Lampkin stating that
he requested she appear on his behalf as well.
At the hearing, Tates revealed that she had signed some documents for her mother. Drott's attorneys then
questioned whether Tates had signed the original or amended answers. At that point, the trial judge halted the
proceedings to warn Tates that forging documents and practicing law without a license were both crimes and
to inform Tates of her Fifth Amendment privileges. The trial judge then swore her in as a witness and allowed
Drott's attorneys to question her. After consulting with an attorney, Tates testified that Sells had signed some
of the court documents, but could not identify which ones. When asked whether she had signed her mother's
name to any documents, specifically the original and amended answers, Tates invoked the Fifth Amendment
and refused to testify. Tates also revealed that the Garland address listed on Sells's answers was her address.
After questioning Tates, Drott moved to strike Sells's answers based on an inference from Tates's invocation
of the Fifth Amendment that Tates, and not Sells, had signed Sells's name to the pleadings on file. Drott
suggested that Sells was an interloper to the suit and was not authorized to sign, prepare, or file documents
on behalf of Sells. The trial court granted the motion to strike Sells's answers. As a result, the trial court
determined that Sells had not appeared in the litigation and entered a no-answer default judgment against her.
Sells was not given notice that the validity of the answers on file would be challenged at the hearing on the
severance motion, nor was the hearing continued to effect such notice.
After the default judgment was rendered, Sells hired an attorney and filed a motion for new trial. The trial court
denied Sells's motion and she appealed both the default judgment and the denial of her motion for new trial.
The court of appeals held that the trial court was correct to strike Sells's answers and enter a default
judgment. __ S.W.3d __, __. The court of appeals also determined that Sells had not presented argument in
her appeal on each of the necessary elements for granting a motion for new trial. Id. at __. The court of
appeals therefore affirmed the trial court's judgment. Id. at __. Sells petitioned this Court for review.
Sells argues that Tates was authorized to sign the answers on her behalf as her “next friend.” See Tex. R. Civ.
P. 44. We need not determine whether a “next friend” is allowed to sign pleadings or otherwise legally
represent a real party because, even if Tates did not have legal authority to sign answers on Sells's behalf or
with her permission, the trial court erred in striking Sells's answers.
Discussing the signature requirement in a similarly worded predecessor to rule 45 of the Texas Rules of Civil
Procedure, this Court has explained:
The signature to a pleading is a formal requisite. The failure to comply with the requirement is an irregularity
that may subject the pleading to be stricken out upon motion, or to be treated as a nullity by the court; but it is
one which does not operate to the injury of the opposing party, and therefore its amendment cannot prejudice
his rights upon the trial of the cause.
Boren v. Billington, 18 S.W. 101, 101 (Tex. 1891) (discussing Tex. Rev. Civ. Stat. art. 1186). In W.C. Turnbow
Petroleum Corp. v. Fulton, this Court noted that a trial court “would not be justified in treating [a] motion as a
nullity merely because counsel failed to sign their names to it.” 194 S.W.2d 256, 257 (Tex. 1946). The motion
in that case (a motion for new trial) had listed a blank for the party's counsel to sign which had not been filled
In this case, Sells's answers are facially valid and appeared to be legal responses from Sells. See Smith v.
Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (holding that a pro se defendant sufficiently appeared by answer
even though the answer was not in "standard form"). Any extrinsic evidence tending to show defects in those
answers were simply challenges to Sells's appearance. By appearing in the suit, even with potentially
defective answers, Sells had the right to notice of a challenge to the validity of the answers and an opportunity
to present evidence and argument before the answers were stricken and a default judgment granted. Cf.
Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (holding a "default judgment may not be rendered after
the defendant has filed an answer"). Sells was never given such notice. Notice of the severance hearing does
not equate to notice that Drott was challenging the validity of the answers filed on her behalf.
“Texas courts have always been reluctant to uphold a default judgment without notice where some response
from the defendant is found in the record.” Lippmann, 826 S.W.2d at 138 (quoting Santex Roofing & Sheet
Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex. App.- San Antonio 1987, no writ). In this case, the
trial court put the cart before the horse, considering evidence before proper notice had been given. Assuming
that Drott produced evidence that Sells had filed defective answers, in that they were signed on her behalf by
her “next friend” daughter, Sells was entitled to an opportunity to prove that such defects were not true or not
fatal or to argue that she had a right to cure the defects, if possible.
The trial court erred in granting a default judgment against her without the requisite notice.
We therefore grant the petition for review and, without hearing oral argument, Tex. R. App. P. 59.1, reverse
the court of appeals' judgment, vacate the default judgment, and remand to the trial court for further
proceedings consistent with this opinion.
OPINION DELIVERED: July 11, 2008