Bloom v. Bloom, 04-88-00105-CV

• Decision Date: 11 January 1989
• Docket Number: No. 04-88-00105-CV,04-88-00105-CV
• Citation: 767 S.W.2d 463
• Parties: Raymond C. BLOOM and Alicia Valdes Bloom, Appellants, v. Gertrude BLOOM, Appellee.
• Court: Texas Court of Appeals

Page 463

767 S.W.2d 463

Raymond C. BLOOM and Alicia Valdes Bloom, Appellants, v. Gertrude BLOOM, Appellee.

No. 04-88-00105-CV.

Court of Appeals of Texas San Antonio.

Jan. 11, 1989.

Rehearing Denied March 13, 1989.

Edward N. Daneri, Pytel, Blagg & Assoc., San Antonio, for appellants.

Kathleen Ebert, San Antonio, for appellee.

Before BUTTS and CHAPA, JJ, and BISSETT, Assigned Justice.

OPINION

BISSETT, Assigned Justice. ^*

This is an appeal by a writ of error from a post-answer default judgment in which the appellants Robert C. Bloom and Alicia Valdes Bloom were defendants, and appellee Gertrude Bloom was plaintiff. The parties will be referred to as "plaintiff" and "defendants," as they were in the trial court. The principal question presented is whether the record shows that proper notice of the trial setting was provided to the defendants as required by TEX.R.CIV.P. 245 (Vernon Supp.1988).

Plaintiff filed her original petition on April 10, 1987, alleging the breach of an oral contract and the refusal by the defendants to return certain items of personal property previously delivered to defendants for safe-keeping. Defendants filed a general denial on May 6, 1987. The case was set for trial on the merits for August 18, 1987. Defendants did not appear at the trial. The case was tried to the court on August 18, 1987. Judgment in favor of plaintiff was signed on August 20, 1987, which decreed that plaintiff recover from defendants the sum of $44,401.69, with interest therein, certain personal property (jewelry) particularly described therein, and attorney's fees in the amount of $7,500.00. The judgment recites that the defendants were duly and properly notified of the trial setting "by and through their previous attorney of record, Ray Leach, and did not otherwise appear and wholly made default." In an affidavit attached to and made a part of the petition for a writ of error, defendant Robert Bloom stated:

I declare that the first time that I had any actual knowledge of a judgment rendered in this cause of action was on or about November 15th when Sheriff's deputies from Bexar County came to my office and inquired about executing a judgment on my property which had been rendered in the above cause of action on August 17, 1987.

I never received any official notice from the District Clerk of Bexar County concerning the rendering of a judgment against me.

I never knew that a trial date had been set in this cause of action, and I never participated in any such trial in any form whatsoever.

Defendants, in their second point of error, contend that plaintiff failed to give them notice of the trial setting and that, therefore, the judgment of the trial court should be reversed. We disagree.

TEX.R.CIV.P. 245 (Vernon Supp.1988) provides that the court may set contested cases for trial on motion of any party, or on the court's own motion, with reasonable notice of not less then ten days to the parties. TEX.R.CIV.P. 21a (Vernon Supp.1988) provides that every notice required by the rules other than the service of citation, and except as otherwise expressly provided in the rules, may be served by delivering a copy of the notice or of the document to be served to the party, his agent, or attorney of record, either in person, by registered mail, by certified mail, or in any other manner as directed by the court.

A writ of error constitutes a direct attack on a default judgment, and in order for an appellant to prevail, the invalidity of the judgment must be disclosed by the papers on file in the case. Pace Sports, Inc. v. Davis Brothers Publishing Co., 514 S.W.2d 247 (Tex.1974). The appellate court will look only to the record on file in the trial court to determine the invalidity of the judgment. Wilson v. Industrial Leasing Corp., 689 S.W.2d 496, 497 (Tex.App.--Houston [1st Dist.] 1985, no writ). The usual presumptions of a judgment's validity are not indulged in a writ of error proceeding. McKanna v. Edgar, 388 S.W.2d 927, 929-930 (Tex.1965).

In a writ of error proceeding in which the question is whether the papers on file in the case (in the trial court) showed that proper notice of the trial setting was provided to the defendant, recitation of due notice in the judgment constitutes some, but not conclusive, evidence that proper notice was given, but where such judgment recitation is effectively rebutted by other evidence in "the papers," it is no longer taken to be true. P. Bosco, Etc. v. Conley, Lott, Nichols, Etc., 629 S.W.2d 142, 143 (Tex.App.--Dallas 1982, writ ref'd n.r.e.).

The right of a party to be present at a trial and be heard is fundamental, and failure to give adequate notice of a trial setting constitutes lack of due process. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Morris v. Morris, 554 S.W.2d 792, 793 (Tex.Civ.App.--San Antonio 1977, no writ).

In the case at bar, Mr. Ray Leach, the attorney for the defendants, filed a motion to withdraw as attorney of record on July 14, 1987. According to the briefs of both parties, the attorney for plaintiff, on the same day (July 14, 1987) filed a motion to set the case for trial, and mailed a copy thereof to Mr. Leach on July 14, 1987.

The motion to withdraw as defendants' attorney was heard on July 21, 1987. The defendants did not appear at the hearing although Mr. Leach, in his "Certificate of Service," certified that a true and correct copy of the motion and the order setting it for hearing "has been hand-delivered or mailed by certified mail, return receipt requested," to defendants at their home address. The motion was heard on July 21, 1987, as previously set, and an order, submitted by Mr. Leach, granting his motion was signed on July 24, 1987. The order, in relevant part, reads:

After hearing the evidence and argument of counsel, the Court is of the opinion that Movant's notifying Defendants of Plaintiff's trial setting for August 17, 1987.

IT IS THEREFORE ORDERED that RAY LEACH, attorney for Defendants, is permitted to withdraw and is hereby withdrawn as attorney of record for Defendants, ROBERT C. BLOOM and ALICIA VALDES BLOOM. IT IS FURTHER ORDERED that Movant will forward a copy of Plaintiff's trial setting to Defendants by certified mail, return receipt requested, as a condition to the granting of this order. IT IS FURTHER ORDERED that Plaintiff and her attorney shall execute service of any other document, pleading or notice as required by the Rules of Civil Procedure, by serving the Defendants at their last known place of residence, 10303 Charter Grove, San Antonio, Texas.

SIGNED on the 24th day of July, 1987.

/S/ Carol R. Haberman

JUDGE PRESIDING

SUBMITTED BY:

LAW OFFICES OF JAMES O. DEEGEAR, III

405 North St. Mary's Street

Travis Building, Suite 900

San Antonio, Texas 78205

(512) 224-0683

By: s/ Ray Leach

RAY LEACH

Texas Bar No. 12086200

ATTORNEY FOR PLAINTIFF

There is no evidence that Mr. Leach notified defendants "by certified mail, return receipt requested," or otherwise, that the case was set for trial for August 17, 1987. There is no evidence that the defendants had actual notice of the date that the case was set for trial.

Defendants, in their petition for writ of error, alleged:

FURTHERMORE, the records of proceedings in this cause would indicate that on July 14, 1987, RAY LEACH, then Movant and attorney for ROBERT BLOOM and ALICIA VALDES BLOOM, Defendants, filed a Motion to Withdraw as Defendant's attorney of record and on the 21st of July, an Order granting said request was granted. On the same July 14, 1987, the day on which RAY LEACH filed to Withdraw as Counsel, Plaintiff's attorney, KATHLEEN EGERT, filed a Motion to Set for Trial on said cause of action and mailed a true copy thereof to RAY LEACH dated July 14, 1987.

A copy of the actual order setting the case for trial does not appear in the record. However, the trial court's docket shows that the case was set for trial for August 17, 1987. The papers on file in this case show conclusively that Mr. Leach knew of the trial setting when he submitted the order granting his motion to withdraw as attorney of record for the defendants as the order states that his request should be granted, "subject to Movant's notifying Defendants of Plaintiff's trial setting for August 17, 1987." Therefore, Mr. Leach knew the date that the case was set for trial before he was permitted to withdraw as attorney of record for defendants. Such notice constituted notice to defendants of the trial setting under TEX.R.CIV.P. 21a (Vernon Supp.1988). Defendant's second point of error is overruled.

In their third point of error, defendants complain that the trial court should be reversed and the cause remanded because plaintiff failed to notify then of the rendition of the default judgment. We do not agree.

TEX.R.CIV.P. 239a (Vernon 1976), at the time judgment was rendered in this case, in pertinent part, provided:

At or immediately prior to the time an interlocutory or final default judgment is rendered, the party taking the same or his attorney shall certify to the clerk in writing the last known mailing address of the party against whom the judgment is taken, which certificate shall be filed among the papers in the cause. Immediately upon the signing of the judgment, the clerk shall mail a post card notice thereof to the party against whom the judgment was rendered at the address shown in the certificate, and note the fact of such mailing on the docket.... Failure to comply with the provisions of this rule shall not affect the finality of the judgment.

Neither plaintiff nor her attorney of record certified to the clerk of the trial court in writing the last known mailing address of the defendants as required by Rule 239a, and there is no showing that plaintiff or her attorney obeyed that portion of the order permitting Mr. Leach to withdraw as attorney of record for defendants, which stated:

... It is further ordered that Plaintiff and her...