First Dallas Petroleum, Inc. v. Hawkins, 05-86-00232-CV

• Decision Date: 25 February 1987
• Docket Number: No. 05-86-00232-CV,05-86-00232-CV
• Citation: 727 S.W.2d 640
• Parties: FIRST DALLAS PETROLEUM, INC., Charles Madison and Robert Barry, Appellants, v. George W. HAWKINS, Sr., George W. Hawkins, Jr., and T. Eugene Scott, Appellees.
• Court: Texas Court of Appeals

Page 640

727 S.W.2d 640

FIRST DALLAS PETROLEUM, INC., Charles Madison and Robert Barry, Appellants, v. George W. HAWKINS, Sr., George W. Hawkins, Jr., and T Eugene Scott, Appellees.

No. 05-86-00232-CV.

Court of Appeals of Texas Dallas.

Feb. 25, 1987.

Rehearing Denied March 20, 1987.

Bertran T. Bader, III, Dallas, for appellants.

Thomas A. Melody, Dallas, for appellees.

Before DEVANY, McCLUNG and STEWART, JJ.

DEVANY, Justice.

This appeal comes to us on a writ of error involving a default judgment on an action for fraud. George W. Hawkins, Sr., George W. Hawkins, Jr., and T. Eugene Scott sued First Dallas Petroleum, Inc., and Charles Madison and Robert Barry, individually, claiming fraud in the sale of certain oil and gas interests. All three defendants filed a pro se joint answer. The trial court ordered both plaintiffs and defendants to resolve all discovery and other pre-trial matters by July 26, 1985, and warned the parties that failure to comply might, without further notice, result in the dismissal of all claims, striking of pleadings, and rendition of default judgment. Trial was had before the court on September 23, 1985, with the plaintiffs present, but without the defendants being present. The court proceeded to hear the plaintiffs' evidence to establish liability and damages. At the conclusion of the testimony presented by the plaintiffs, in response to a question by plaintiffs' counsel, the court announced that it had struck the defendants' pleadings. Then it rendered a default judgment against the defendants.

Barry, Madison, and First Dallas Petroleum, Inc., appeal on this petition for writ of error. They present twenty-one points of error; however, we will address their fifth point of error, and those related to it, to dispose of this writ of error appeal. In their fifth point of error, Barry, Madison and First Dallas complain that the trial court abused its discretion in striking their answer. We agree and for the reasons stated below, we reverse and remand for a new trial.

In order to have a successful appeal on a writ of error, the action must be (1) brought within six months of the trial court judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) there must be error apparent from the face of the record. Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 392 (Tex.1982); Morales v. Dalworth Oil Co., 698 S.W.2d 772, 774 (Tex.App.--Fort Worth 1985, writ ref'd n.r.e.); Caruso v. Krieger, 698 S.W.2d 760, 761 (Tex.App.--Austin 1985, no writ).

Barry, Madison and First Dallas were unquestionably parties to the suit, and brought the appeal within the required six months. The plaintiffs claim that because Barry, Madison and First Dallas filed an answer in the trial court they "participated at trial." We disagree. Mere filing of an answer, or making a motion for a new trial, does not cause a defendant to "participate at trial" and thereby preclude his appeal by writ of error. Davis v. Hughes Drilling Company, 667 S.W.2d 183, at 183-84 (Tex.App.--Texarkana 1983, no writ). Therefore, Barry, Madison, and First Dallas have established their right to bring this appeal by writ of error. The questions remaining concern whether there is error apparent "on the face of the record." Texas cases leave some confusion as to what "the face of the record" means. Our research has revealed that the phrase "face of the record" simply means "the entire record of a case in court up to the point at which reference is made to it," as is summarized in BALLANTINE'S LAW DICTIONARY 448 (3d ed. 1969). Thus, on review by writ of error as well as by appeal, in order to test the validity of the judgment, the appellate court may review "all of the papers on file in the case including the statement of facts." Morales, 698 S.W.2d at 774.

However, the expression "face of the record" seems to indicate that there may be a part of an appellate record other than its "face" that may be available to the appellate court in an ordinary appeal, but not on writ of error. Because of this apparent contradiction, we have done extensive research in order to determine the source of the expression "face of the record" and to determine whether there is another part of the record, other than its face, which we may not review upon an appeal by writ of error. None of the cases we have reviewed actually so holds, and several cases recognize that a statement of facts may be a proper part of the record on writ of error. Stubbs v. Stubbs, 685 S.W.2d 643, 645-46 (Tex.1985); Brown, 627 S.W.2d at 394; Morales, 698 S.W.2d at 774. These decisions are consistent with the line of decisions holding that writ of error affords review of the same scope as an appeal when the other requirements of a writ of error have been met. Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965); Ward v. Scarborough, 236 S.W. 441, 444 (Tex.Comm'n App.1922, judgmt adopted); Behar v. Patrick, 680 S.W.2d 36, 38 (Tex.App.--Amarillo 1984, no writ). This holding concerning the scope of writ-of-error review has been followed since the beginnings of Texas jurisprudence. Luckett v. Townsend, 3 Tex. 119, 128 (1848); Cheek v. Rogers, 1 Tex. 440, 441 (1846); Moore v. Harris, 1 Tex. 36, 40 (1846). In 1846, Chief Justice Hemphill pointed out that, although in England appeal was the mode of review in courts of chancery and writ of error was the mode of review in the common-law courts, the differences between these two modes were not applicable under the blended Texas procedure. Moore, 1 Tex. at 40.

Further confusion arises from the use of the expression "face of the record" in a more limited sense in other contexts. Thus in Appraisal Review Board v. International Church of the Foursquare Gospel, 719 S.W.2d 160, 30 Tex.Sup.Ct.J. 29, 30 (Tex.1986), the supreme court took notice of a fundamental "jurisdictional error of the trial court ... apparent on the face of the record," though no brief was filed in the court of appeals. In this context, it has been held that there is no fundamental error "apparent on the face of the record" if its existence is disclosed only by an examination of the evidence. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S.W. 533, 537 (1909); Heard v. Nichols, 239 S.W. 805, 807 (Tex.Comm'n App.1927, judgmt adopted). Also, in McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965), the supreme court held that jurisdiction of the court over a nonresident "must affirmatively appear on the face of the record." We have interpreted this expression in McKanna in the more limited sense, as distinguished from the complete record, which includes the evidence. Gourmet, Inc. v. Hurley, 552 S.W.2d 509, 512 (Tex.Civ.App.--Dallas 1977, no writ).

How "error apparent from the face of the record" came to be considered an element of review by writ of error, though not in the restricted sense used in these other contexts, is uncertain. In Sequin v. Maverick, 24 Tex. 526, 533-35 (1859), the supreme court explained that in the English chancery practice, the decree recited the pleadings and the facts, and a bill of review was available if the facts, as stated "on the face of the decree" showed that the court had erred in a point of law. Thus, "[t]he error must appear on the face of the decree, or pleadings, ... and the evidence at large, cannot be gone into." 24 Tex. at 534. The Sequin opinion points out, however, that this practice cannot properly be applied in Texas where judgments do not ordinarily recite the facts on which they are based, and that the remedy for such an error is by appeal or writ of error, in which a new trial can be granted if necessary. Accordingly, the court held that a "bill of review" in the Texas practice does not lie for "error apparent" as known in chancery practice, but only for cases where the defendant has not been afforded the opportunity of making his defense, as in the cases of fraud, or if the trial was ex parte after service by publication. 24 Tex. 536-37.

Following this reasoning, a long line of Texas cases has held that a bill of review is not available to correct an error "apparent upon the face of the record" because the proper remedy is appeal or writ of error. Schleuning v. Duffy, 37 Tex. 527, 528 (1872); Milam County v. Robertson, 47 Tex. 222, 232 (1877); Talbert v. Barbour, 40 S.W. 187, 188 (Tex.Civ.App.1897, no writ); American Standard Life Ins. Co. v. Denwitty, 256 S.W.2d 864, 869 (Tex.Civ.App.--Dallas 1953), writ dism'd).

Of course, the reasoning in these cases would indicate that a bill of review should not be available to correct an error reviewable on appeal or writ of error, including one disclosed by a statement of facts, if available. However, until recently, a statement of facts was rarely available on writ of error, particularly if the defendant was not present at the trial, and, if no statement of facts was available, a bill of review was allowed. De Garcia v. San Antonio & A.P.Ry.Co., 77 S.W. 275, 277-78 (Tex.Civ.App.--1903, writ ref'd); see Pearl Assurance Co. v. Williams, 167 S.W.2d 808, 812 (Tex.Civ.App.--Fort Worth 1942, no writ) (if the "record" would not disclose the error complained of in the bill, an appeal or writ of error would not be available).

The first instance we have found in which an "error apparent on the face of the record" has been considered as an element of review by writ of error, rather than an error for which a writ of error, as distinguished from a bill of review, is the proper remedy, is Texaco, Inc. v. McEwen, 356 S.W.2d 809, 811 (Tex.Civ.App.--Dallas 1962, writ ref'd n.r.e.). It is notable that the cases cited in Texaco in support of this rule include some of the bill-of-review cases noted above. In Texaco the return on the citation showed that the service was insufficient, and the court held this to be an "error on the face of the record." Thus, the decision cannot be understood as a limitation of the scope of review in writ of error as compared to an...