Justices vacate judgment against elderly woman

Steve Korris Jul. 17, 2008, 4:00am

Texas Supreme Court

AUSTIN – Showing consideration for an elderly woman, the Texas Supreme Court forgave her daughter's attempts to mislead Smith County District Judge Randall Rodgers.

The justices vacated a default judgment that Rodgers entered against LaVerna Sells, 82, after he learned that her answers to a civil suit came from her daughter, Mona Tates.

The justices agreed that "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."

They wrote that Rodgers "put the cart before the horse, considering evidence before proper notice had been given."

They noted that Sells has suffered four strokes.

The lawsuit alleged that Sells and her brother, George Lampkin, backed out of a contract to sell land to Earl Drott.

Sells received service at her home in Houston, but her answer listed a Garland address.

Later an amended answer reached the court, again with a Garland address.

Lampkin did not answer the suit, so Drott moved for default judgment and Rodgers granted it.

Drott then moved to sever his claim against Lampkin from his claim against Sells.

At a hearing on the motion in 2006, Tates appeared on behalf of her mother with a letter from Lampkin requesting that she appear on his behalf as well.

Tates dived into hot water, divulging that she signed documents for her mother and admitting she lived in Garland.

Rodgers warned her that forgery and practicing law without a license were crimes. He put her on the stand and informed her of the Fifth Amendment privilege against self incrimination.

She invoked the Fifth Amendment and refused to testify.

Drott moved to strike Sells's answers, and Rodgers granted the motion. He ruled that Sells never appeared in the litigation, and he entered default judgment against her.

When Sells received notice of the judgment, she hired an attorney and moved for a new trial. Rodgers denied the motion.

On appeal to the 12th District in Tyler, Sells failed to overturn the decision.

At the Supreme Court, Sells succeeded. The justices agreed that she appeared in the litigation whether she knew it or not.

"Any extrinsic evidence tending to show defects in those answers were simply challenges to Sells's appearance," they wrote.

"By appearing in the suit, even with potentially defective answers, Sells had the right of notice of a challenge to the validity of the answers and an opportunity to present evidence and argument," they wrote.

"Notice of the severance hearing does not equate to notice that Drott was challenging the validity of the answers filed on her behalf," they wrote.

"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," they wrote.

J. B. Peacock Jr. represented Sells. John Jarvis represented Drott.

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