Conrad v. Orellana, 13-82-307-CV
| Decision Date | 17 November 1983 |
| Docket Number | No. 13-82-307-CV,13-82-307-CV |
| Parties | Paul CONRAD, Appellant, v. Hernan I. ORELLANA, et al., Appellees. |
| Court | Texas Court of Appeals |
Michael McNamara, Harlingen, for appellant.
Brian G. Janis, Carinhas & Morrow, Brownsville, for appellees.
Before UTTER, BISSETT, and GONZALEZ, JJ.
This is an appeal from a judgment overruling an application for bill of review. The issues presented are: (1) the validity of the post answer default judgment, and (2) the sufficiency of the evidence to support a jury finding that the appellant was negligent in allowing the default judgment against him to be rendered and to become final. We affirm the judgment of the trial court.
In the original suit, the appellee sued the appellant on a promissory note to recover the debt of $10,000.00. In response to service of process, the appellant duly filed his answer in the form of a general denial. No other pleadings were filed thereafter in the original suit. On appellee's motion for a setting, the case was later set for trial. At the trial, neither the appellant nor his attorney appeared, and thereafter judgment was entered against the appellant for the amount of the promissory note plus interest.
In his application for bill of review, the appellant alleged that, as a result of having never received notice of any settings or notice that judgment was entered against him, no motion for a new trial was filed nor appeal perfected. Appellant claimed that he first learned of the default judgment from the Sheriff upon the issuance of a writ of execution in favor of the appellee against him and that he had no cause to suspect a default judgment. Appellant also alleged that he had several meritorious defenses to the original suit against him on the promissory note. Affidavits were submitted with the application for bill of review to support the appellant's alleged meritorious defenses. However, the appellant did not allege in his application for bill of review that the judgment in the original suit was entered without fault or negligence on his part.
The trial court, after reviewing the affidavits of the appellant, made a pre-trial ruling that the appellant had established a prima facie meritorious defense, thereby sustaining the appellant's minimum requirement to be in court on the bill of review. Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979). The court then set a trial to a jury on the critical issue of whether the judgment was rendered as a result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with the negligence of the part of appellant. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). In response to special issues, the jury found that the prior judgment was rendered and became final as a result of an official mistake, but it also found that the prior judgment was rendered and became final because of the appellant's negligence.
The appellant asserts in his first two points of error that the trial court erred in failing to grant his motion for directed verdict and his motion for judgment notwithstanding the verdict as the entry of the judgment being reviewed was erroneous as a matter of law. Appellant argues that the prior default judgment is erroneous on its face because it was entered on erroneous findings recited within the judgment similar to findings held to be erroneous in Stanford v. Lincoln Tank Co., 421 S.W.2d 412 (), which would warrant the granting of a new trial. In the Stanford case the judgment recited as follows:
... the defendants being duly served with citation herein failed to answer and appear in their behalf and wholly made default. (Emphasis added). 421 S.W.2d at page 413.
As stated in the findings, defendant Stanford failed to answer and to appear in the trial; but contrary to the findings, the record clearly showed that he was not in default having an answer on file in the cause. The Fort Worth Court in its opinion stated:
This defendant was not in default, and it was error to render this [Rule 239] default judgment against him.... The erroneous finding of no answer and default was an error of law apparent on the face of the record. 421 S.W.2d at page 413.
Appellant points out that the judgment of which he complains herein contains findings which are almost exactly like those held to be erroneous in Stanford. The judgment in the instant case, recites:
"Paul Conrad, defendant herein, though duly notified and through his attorney of record, appeared not and wholly made default."
However, unlike the findings in Stanford, these findings do not erroneously state that the appellant failed to answer when the record clearly shows that he did, in fact, file an answer.
Appellant complains of the portion of the judgment which recites that the appellant was "duly notified." Appellant alleges that this recitation is erroneous because he was not in fact "duly notified." Appellant urges that the jury's finding in the bill of review trial that the prior judgment was rendered and became final as the result of an official mistake supports appellant's allegation that he was not in fact "duly notified." However, the jury did not affirmatively find that appellant had not been "duly notified" of the setting of the cause for trial.
At the time of the entry of the judgment, the trial court's records and files reflected that appellant had been mailed all notices of hearings as well as the notice setting the case for trial. In the bill of review trial, the deputy county clerk was able to verify that copies of all motions and orders in the case were made and mailed to the appellant's attorney, but she could not verify that the copies were sent to the correct address. She did state, however, that these copies of motions and notices were not returned to her by the United States Post Office. She could not verify that a copy of the judgment was mailed to the appellant's attorney. The hearing date, the trial date and the judgment were entered on the trial court's docket sheet, and the order setting the case for trial and the judgment were both recorded in the civil minutes of the court. Thus, at the time of the entry of the judgment, the trial court's records showed that the appellant had been "duly notified by and through his attorney of record." There was no error of law apparent on the face of the record which warranted a new trial as per Stanford.
The appellant further argues that, in any event, it is error to render a default judgment when an answer is on file. The above proposition is well established as found in numerous cases cited in both appellant's and appellee's...
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