Fears v. Mechanical & Indus. Technicians, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: SUMMERS
• Citation: Fears v. Mechanical & Indus. Technicians, Inc., 654 S.W.2d 524 (Tex. App. 1983)
• Decision Date: 26 May 1983
• Docket Number: No. 12-81-0072-CV,12-81-0072-CV
• Parties: Bill R. FEARS, Indiv., & As Officer & Director of Bill Fears Mobile Offices, Inc., Appellant, v. MECHANICAL & INDUSTRIAL TECHNICIANS, INC., Appellee.

Page 524

654 S.W.2d 524

Bill R. FEARS, Indiv., & As Officer & Director of Bill Fears Mobile Offices, Inc., Appellant, v. MECHANICAL & INDUSTRIAL TECHNICIANS, INC., Appellee.

No. 12-81-0072-CV.

Court of Appeals of Texas Tyler.

May 26, 1983.

Rehearing Denied Aug. 4, 1983.

James S. Taylor, Jr., Houston, for appellant.

Michael Crawford, Houston, for appellee.

SUMMERS, Chief Justice.

Appellant (hereinafter Fears) petitions this court by writ of error to review an adverse default judgment. Appellee has moved to dismiss appellant's petition for writ of error for want of jurisdiction.

We overrule appellee's motion to dismiss and affirm the default judgment.

Mechanical & Industrial Technicians, Inc., plaintiff in the trial court (appellee herein) brought this action on August 19, 1980, pursuant to Art. 5069-1.06(2) ¹ of the Texas usury laws, alleging a usurious transaction between appellant and appellee. In its original petition appellee asserts that Fears on June 11, 1980, loaned Mechanical & Industrial Technicians, Inc., $35,000.00 cash in exchange for a $46,000.00 secured note ² for a term of 30 days and that Fears then collected the entire proceeds of the security in the sum of $45,237.04.

Appellee sought recovery against Fears for (1) the principal sum of $35,000.00; (2) the interest paid of $10,237.04; and (3) attorney's fees of $15,000.00 and costs. Citation was served on October 1, 1980, and on October 24, 1980, Fears filed his original answer consisting of only a general denial. On November 4, 1980, Mechanical & Industrial Technicians, Inc., served Fears with interrogatories, and a request for production of documents, both of which were received and signed for by Fears' attorney of record. The record further shows that Fears made no objection or response of any kind to either the interrogatories or the request for production of documents. ³ On December 16, 1980, appellee filed its motion to strike pleadings and enter judgment, and such motion was set for hearing on January 26, 1981. Fears' attorney of record was served with such motion by certified mail at his proper address (as shown by the answer on file) pursuant to Rules 21a and 21b. Although Fears' counsel was notified by the U.S. Postal Service of this mail on three separate occasions, December 16, 1980, December 21, 1980, and December 31, 1980, he failed to accept delivery of such motion. Furthermore, on December 31, 1980, appellee's attorney sent Fears' counsel another notice of said motion by regular U.S. Mail. No response to such notices was made to appellee or to the trial court.

On January 26, 1981, the trial court entered an order striking defendant Fears' answer. ⁴ Appellee, on February 5, 1981, filed an affidavit in support of attorney's fees and an affidavit in support of his motion to strike pleadings reflecting proper notice. On that same date the court entered default judgment against appellant as prayed for in appellee's petition. Fears filed a motion to set aside judgment on March 16, 1981, ⁵ and the court denied such relief. No timely motion for new trial or appeal was taken by appellant and on April 27, 1981, appellant filed its petition for writ of error.

Having given the facts as reflected in the record we now address appellee's dismissal motion which is predicated on Art. 2249a. This statute provides:

No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Appeals through means of writ of error. (Emphasis added.)

The determinative issue respecting the propriety of this writ of error proceeding is whether appellant Fears' actions in connection with the proceedings in the trial court constituted such participation as to preclude a writ of error review by this appellate court.

The extent of participation in the actual trial or proceeding that disqualifies an appellant under Art. 2249a from review by means of a writ of error appears to be one of degree and the provisions of the article have been held to be mandatory and jurisdictional. Leuer v. Smith, 335 S.W.2d 775 (Tex.Civ.App.--San Antonio 1960, no writ). The intendment of and the rationale underlying Art. 2249a was expressed by our Supreme Court in Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097-1098 (1941), in these words:

... The statute was intended to cut off the right of appeal by writ of error of those who participate in the hearing in open court in the trial that leads to final judgment. It was not intended to cut off the right of those who discover that a judgment has been rendered against them after the judgment has been rendered, and who participate only to the extent of seeking a new trial. (Emphasis added.)

Appellee cites Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.--Amarillo 1973, writ dism'd), wherein appellant's writ of error was dismissed because she elected to absent herself from a hearing on motion for summary judgment without requesting a continuance after having been adjudged chargeable with notice of the court's action taken at the hearing. The court reasoned that she was in a position to utilize the more speedy method of appeal, and held that under these circumstances the petitioner sufficiently participated as a party and as an attorney in the actual trial of the case in the trial court within the purview of the writ of error statute. The instant case is clearly distinguishable from Thacker. Appellee also cites Nutter v. Phares, 523 S.W.2d 292 (Tex.Civ.App.--Beaumont 1975, writ ref'd n.r.e.); Lewis v. Beaver, 588 S.W.2d 685 (Tex.Civ.App.--Houston [14th Dist.] 1979, no writ); and Blankinship v. Blankinship, 572 S.W.2d 807 (Tex.Civ.App.--Houston [14th Dist.] 1978, no writ), all involving actual participation in the proceedings by the complainant or their attorney and thus distinguishable from the case at bar.

The judgment entered in this case does not reflect that appellant was present either in person or by his attorney. Appellant's only involvement in the case was the answer filed on October 24, 1980. The mere filing of an answer by defendant/appellant does not constitute participation in the actual trial as contemplated by Art. 2249a. See, Alejo v. Pellegrin, 616 S.W.2d 331, 332 (Tex.Civ.App.--San Antonio 1981, writ dism'd); Thacker v. Thacker, supra at 203; Petroleum Casualty Co. v. Garrison, 174 S.W.2d 74, 76 (Tex.Civ.App.--Beaumont 1943, writ ref'd w.o.m.). Appellee's motion to dismiss review by writ of error is overruled.

We next address the petition for writ of error. The four elements necessary for a review by writ of error are: (1) it must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) error must be apparent from the face of the record. In the case at bar the writ of error was filed within six months of the date of judgment by Fears, a party to the suit, and we have already determined that he did not participate in the trial. The remaining question is whether there was error on the face of the record. In six points Fears contends the following constitutes such error:

1. The trial court was without authority to impose sanctions without notice and hearing.

2. The trial court denied appellant's due process by granting default judgment as a sanction where appellant was not given notice or the opportunity to be heard.

3. The trial court abused its discretion in imposing the sanction of striking pleadings and entering default judgment.

4. The trial court erred in failing to have a record made of evidence given at the default hearing.

5. The trial court erred in not having an evidentiary hearing.

6. The trial court erred in granting default judgment on appellee's unverified petition alleging a plea of usury.

Appellant's first three points all involve the allegation that he had no notice of the motion for the sanctions imposed and was not afforded a hearing before sanctions were granted. Appellant does not dispute the fact that his counsel received the interrogatories and request to produce documents but made no answer or response thereto.

The record further reflects that no motion was filed alleging mistake, lack of information, lack of notice, reason for delay or any other cause for failure to answer the interrogatories or request for production of documents. The purpose of the discovery rules is to augment and facilitate the trial process in resolving the actual issues in dispute. The latest amendment to the rules, effective January 1, 1981, were promulgated to further this purpose. We hold that under Rules 168 and 215a (before or after the 1981 amendments) the trial court's action in striking Fears' answer was proper.

The proper method of giving notice is provided by Rule 21a Notice which provides for either (1) by delivery to party, his agent or attorney, or (2) by registered (certified mail Rule 21b) mail to his last known address. Rule 21a then provides:

Service by mail shall be complete upon deposit of the papers, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service.... A written statement by an attorney of record, ... showing service of a notice shall be prima facie evidence of the fact of service.

The record reflects that appellee mailed the motion to strike pleadings and enter judgment in conformity with Rules 21a and 21b. As shown by appellee's affidavit and notations of the U.S. Postal Service the Postal Service gave appellant's attorney notice of the certified mail on three separate occasions. Appellant argues that since notice was not actually received their motion of March 16, 1981, to set aside judgment and the allegations therein served to rebut actual notice. We do not agree with this argument as the appellate court will look only to the record of the trial court in determining writs of error. See, ...