TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00551-CV

Edith Fontenot, Appellant

v.

Margaret Hanus, Michael Hanus, and William S. Carver, III, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. GN403516, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

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

Appellant Edith Fontenot, representing herself pro se, sued appellees Margaret Hanus,

Michael Hanus, and William S. Carver, III, seeking a judgment declaring that she had the right to

use a road on appellees’ property to access her land. The case was set for a jury trial on

May 23, 2005, but on May 11, 2005, appellees filed a motion for continuance and to strike the May

23 setting, stating that Fontenot had not met the requirements for a jury trial or paid the jury fee and

that the case had not been referred to pretrial mediation as required by the Travis County Local

Rules. On May 19, a hearing was held on the motion, and the trial court denied the motion for

continuance; it appears that Fontenot paid the jury fee that same day. On May 23, Fontenot did not

appear at the 9:00 a.m. docket call, and the trial court signed a default judgment against her, denying

Fontenot access to her property across appellees’ property. On June 22, thirty days after the default

judgment was signed, Fontenot filed a motion for new trial, asserting that she had arrived late to
 Appellees have not filed a brief in this case. 1

2

court on May 23, only to learn that the docket had been called promptly at 9:00 a.m. and that a

default judgment had been granted in her case. She explained that she misunderstood the docket-call

process and asked to have her case reinstated. Appellees filed a response to Fontenot’s motion, and

after a hearing, the trial court denied Fontenot’s motion for new trial. It is from the denial of her

motion for new trial that Fontenot appeals, complaining largely that the trial court erred in refusing

to grant her a new trial. We modify the trial court’s default judgment to reflect instead a dismissal 1

for want of prosecution and affirm the judgment as modified.

The trial court entered a “default judgment” purporting to decide the merits of the

case. See Tex. R. Civ. P. 239. However, when a plaintiff fails to appear, the trial court may not

enter a default judgment against her and may only dismiss the cause without prejudice.

Freeman v. Freeman, 327 S.W.2d 428, 431 (Tex. 1959) (“The law of this state does not authorize

a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit.”);

Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948) (“It is a well-established rule that when a

plaintiff fails to appear and prosecute his case, the court can not try the plaintiff’s cause of action,

but the only remedy is to dismiss the same.”); State v. Herrera, 25 S.W.3d 326, 328

(Tex. App.—Austin 2000, no pet.). Because Fontenot failed to appear at the May 23 docket call, the

trial court could have dismissed her case for want of prosecution. See Tex. R. Civ. P. 165a(1). The

court was not, however, authorized to enter a default judgment against her. Therefore, we modify

the default judgment to reflect a dismissal under rule 165a(1). See Tex. R. App. P. 43.2(b), 43.3.

As for Fontenot’s issues on appeal, we note that Fontenot’s brief does not comply

with the rules of appellate procedure. Aside from referring to Craddock v. Sunshine Bus Lines, Inc.,
 Fontenot has attached to her brief an affidavit attempting to explain what she characterizes 2

as inconsistent practices. However, she did not present this affidavit before the trial court, and we

therefore may not consider it. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342

n.2 (Tex. App.—Houston [14th Dist.] 2003, no pet.). We note, however, that the affidavit does not

show any improper or inconsistent practices by the trial court. 

3

133 S.W.2d 124 (Tex. 1939), for its discussion of when a motion for new trial should be granted,

she cites no authorityand presents virtuallyno argument. We recognize that Fontenot is representing

herself pro se, and we therefore will attempt to read her brief liberally to address the arguments she

presents. However, pro se litigants must comply with the same procedural rules followed by

represented parties, and we cannot hold pro se litigants to a different standard than applied to

represented parties. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

Fontenot lists nine “issues presented,” but does not present argument on all issues,

instead focusing what little argument she makes on whether the trial court should have granted her

motion for new trial. However, Fontenot did not present any evidence before the trial court to

support her assertions that her failure to appear was unintentional and not the result of conscious

indifference, either in an affidavit attached to her motion or through sworn testimony at the hearing.

Thus, the trial court did not abuse its discretion in denying Fontenot’s motion for new trial. See

Director, St. Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994).

As for Fontenot’s unbriefed issues, we will briefly address them as best we

understand them. Fontenot asserts that the trial court used inconsistent docket call procedures, but

does not explain how the trial court erred and has not shown any inconsistent practices. Instead, the 2

hearing before the trial court shows that Fontenot admitted to misunderstanding the docket call

process. Fontenot further complains that the trial court should not have allowed appellees to rely on

an unpublished case from this Court. However, the case to which appellees referred, Limestone
 Under the rules of appellate procedure, opinions are no longer “published” or 3

“unpublished.” Instead, they are designated “memorandum opinions” or “opinions.” See

Tex. R. App. P. 47.2(a). 

4

Construction, Inc. v. Summit Commercial Industrial Properties, Inc., is a published opinion. See

143 S.W.3d 538 (Tex. App.—Austin 2004, no pet.). As for Fontenot’s complaints related to the 3

trial court’s allowing appellees to present evidence of Fontenot’s alleged conduct during the lawsuit

and its refusal to allow her to present evidence of appellees’ conduct, she has not briefed this issue

or shown that the trial court erred in its management of the hearing on her motion for new trial.

Finally, Fontenot asserts that the trial court erred in telling her she could not refile her lawsuit, which

she states amounted to a dismissal with prejudice. Because we have modified the judgment to reflect

a dismissal for want of prosecution, rather than a default judgment, any error in the trial court’s

statement has been addressed.

The trial court erred in granting a default judgment in favor of appellees, rather than

simply dismissing the suit under rule 165(a). We therefore modify the judgment to reflect a

dismissal for want of prosecution. Fontenot has not shown reversible error on the trial court’s part,

and we therefore affirm the judgment as modified.

__________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Modified and, as Modified, Affirmed

Filed: August 17, 2007