1 Litigants choosing to act p ro se must comply with the applicable procedural rules and are

held to the same standards that apply to licensed attorneys. S ee In re Estate of Dilasky

, 972 S.W.2d

763, 766 (Tex. App.—Corpus Christi 1998, no pet.); Greenstreet v. Heiskell

, 940 S.W.2d 831, 834-

35 ( Tex. App.—Amarillo 1997, no writ). To treat the p ro se litigant differently would accord an

unfair advantage over litigants represented by counsel. S ee Mansf ield State Bank v. Cohn , 573

S.W.2d 181, 184-85 (Tex. 1978). 

### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00681-CV

Rosemary C. Steinbrecher, Appellant

v.

John Steinbrecher, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN101701, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is an appeal from a default jud gment entered against Rosemary Steinbrecher

(“appellant”) and Jerome Steinbrecher. In four issues, Rosemary Steinbrecher appeals p ro se

, 1

challenging the jurisdiction of the district court to ren der its decision and contending that the

evidence is legally and factually insufficient to support its order. We affirm.

Appellee John Stei nbrecher brought an action pursuant to section 23.001 of the

property code, see Tex. Prop. Code Ann. § 23 .001 (West 2000), seeking the partition by sale of a

13.885-acre tract of land in Travis County, which he owns as a tenant in common with his siblings,2

Rosemary and Jerome. The petition alleged that John, Rosemary, and Jerome are brothers and sister

and the sole heirs of their father, Francis J. Steinbrecher. John attached to the petition: (i) a copy

of an order declaring heirship that was entered in the Circuit Court of Cook County, Illinois, County

Department, Probate Division, on March 6, 1991; and (ii) documents contai ning the legal description

of the land. At the time of his death, Francis Steinbrecher owned the unimproved tract of land. As

his sole heirs, the three parties to this lawsuit each own a one-third und ivided interest in the land.

Because the property has little road frontage and is narrow and deep, the petition alleged that a fair

and equitable division of the property could not be made and that the property is incapable of

partition in kind.

Neither Rosemary nor Jerome filed an answer or appeared. The district court

rendered an interlocutory default judgment on January 8, 2002, finding that the property was

incapable of partition in kind and that a fair and equitable division of the property in kind could not

be made, and that John was entitled to have the property partitioned by sale. The court determined

that a receiver should be appointed to sell the property.

On Febru ary 11, 2002, appellant filed a Motion to Vacate Interlocutory Default;

Allow Answer, Counterclaim and Cross Claim, and Accept Evidence of Divisibility or Partition in

Kind. At a hearing on the motion on April 3, appellant failed to adduce any evidence to demonstrate

her entitlement to a new trial. S ee Craddock v. Sunshine Bus Lines, Inc.

, 133 S.W.2d 124, 126 (Tex.

1939). Following a motion to reconsider that was denied, a receiver was appointed to sell the

property. An interlocutory order appointing a receiver is appealable. S ee Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(1) (West 1997). Appellant filed this appeal.2 After suffering a default judgment for failing to answer or to appear, the defendant may

move for a new trial on the equitable grounds of excusable mistake or accident. The court will

vacate the judgment if the defendant makes the three-part evidentiary sh owing prescribed by

Craddock v. Sunshine Bus Lines, Inc.

, 133 S.W.2d 124 (Tex. 1939). To satisfy the C raddock test,

the defendant must show that: defendant’s failure to answer or appear was not intentional or due to

conscious indifference, but rather was due to a mistake or accident; defendant has a meritorious

defense; and granting the new trial will not occasion a delay or otherwise operate as an injury to

plaintiff. I

d. at 126; s ee also Bank One, Tex., N.A. v. Moody

, 830 S.W.2d 81 (Tex. 1992). Although

appellant argued that she was occupied with other lawsuits between the parties, she failed to make

the evidentiary showing required to establish—or raise—the existence of any of the three factors.

3 DISCUSSION

By her first two issues, appellant challenges the jurisdiction of the court to render the

default judgment. She first challenges the court’s authority to assume jurisdiction when, if she had

filed an answer, “jurisdiction would not be clear or gained at all.” She then challenges the court’s

exercise of jurisdiction because the record does not establish that the court had jurisdiction “and that

the case is ripe for judgment.” Without presenting evidence or otherwise complying with the

Craddock factors for a new trial, 2 appellant urged before the district court and now on appeal that

John failed at the default judgment hearing to present proof of ownership of the property, or that her

father owned clear title to the property.

Default judgments are based on the plaintiff’s pleadings. A default judgment on an

unliquidated claim admits all allegations of facts set out i n the petition, except the amount of

damages. S toner v. Thompson

, 578 S.W.2d 679, 684 (Tex. 1979); Jackson v. Biotectronics, Inc.

, 937

S.W.2d 38, 41 (Tex. App.—Houston [14th Dist.] 1996, no writ) (op. on reh’g). If the facts set out

in the petition allege a cause of action, a default judgment conclusively establishes the defendant’s

liabi lity. Morgan v. Compugraphic Corp. , 675 S.W.2d 729, 731 (Tex. 1984). The petition must4

attempt to state a cause of action, give fair notice of the claim, and not affirmatively disclose facts

that defeat relief. P aramount Pipe & Supply Co. v. Muhr

, 74 9 S.W.2d 491, 494 (Tex. 1988).

Having reviewed the original petition, we find that it properly alleges an action to partition the

property by sale in the district court of the county in which the property is located and that

jurisdiction is proper. See Tex. Prop. Code Ann. § 23.002 (West 2000).

By defaulting, appellant admitted all of the allegations in the petition, including:

• that the parties to the ca s e own the property as sufficiently described on exhibit

attached to petition as tenants in common;

• that the parties are brothers and sister and the sole heirs of Francis J. Steinbrecher,

deceased, the prior owner of the property, and that a copy of an order determining

heirship was attached to the petition;

• that each party owned a one-third undivided interest;

• that John was entitled to have the property partitioned; and

• that the property was not capable of being partitioned in kind.

Because appellant failed to answer and a default judgment was rendered, the allegations of the facts

in the petition and liability are deemed admitted. We overrule appellant’s first and second issues.

Appellant’s third issue is similar to the first and second issues. She complains that,

in entering a default judgment, the district c ourt “found” facts without receiving “new evidence.”

Her complaint seems to be that there was no evidence offered to the district court when the

interlocutory default judgment was rendered. This contention is without merit. It is not necessary

for the court to hold an evidentiary hearing unless damages are soug ht. Tex. R. Civ. P. 243. The5

petition does not seek damages. Thus, the facts as alleged are admitted, further proof is not required

at the default judgment hearing, and the judgment is supported by the pleadings and the record.

As her fourth issue, appellant contends that a judicial sale of the property is illadvised because the bidding at the sale will be “chilled and stifled.” She urges here, as she did in

the hearing on her motion to vacate before the district court, that the property has greater value as

three parcels than if it is sold as a single parce l: “The fact that the City of Austin requires no

subdivision requirements for partition in kind further enhances the value of separate parcels over the

whole.” She also contends that there is no proof to support the petition’s allegation that the property

is not capable of being partitioned in kind. But again, this is a challenge to the facts alleged in the

petition, which are admitted due to her default. Appellant’s fourth issue is overruled.

CONCLUSION

Having concluded that the district court properly exercised its jurisdiction over this

action for partition and that appellant failed to make the evidentiary showing required by the

Craddock decision, we overrule appellant’s issues and affirm the judgment.

Jan P. Patterson, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: June 5, 2003