Illinois Nat. Ins. Co. v. Perez

• Decision Date: 05 April 1990
• Docket Number: No. 13-89-238-CV,13-89-238-CV
• Citation: 794 S.W.2d 373
• Parties: ILLINOIS NATIONAL INSURANCE COMPANY, Appellant, v. Adriana L. PEREZ, Individually and As Parent and Next Friend of Sherry Lamay Perez and Marcella Marie Perez, Minors, By and Through their Mother and Next Friend, Adriana L. Perez, Appellee.
• Court: Texas Court of Appeals

Page 373

794 S.W.2d 373

ILLINOIS NATIONAL INSURANCE COMPANY, Appellant, v. Adriana L. PEREZ, Individually and As Parent and Next Friend of Sherry Lamay Perez and Marcella Marie Perez Minors, By and Through their Mother and Next Friend, Adriana L. Perez, Appellee.

No. 13-89-238-CV.

Court of Appeals of Texas Corpus Christi.

April 5, 1990.

Rehearing Overruled June 22, 1990.

Second Rehearing Overruled Aug. 31, 1990.

Robert D. Stokes, Falhive, Ogden & Latson, Austin, Frank E. Weathered, Law Office of David J. Dunn, Corpus Christi, for appellant.

Steven Fieldcamp, Fieldcamp & Baiamonte, and Russell H. McMains, Kimberly Hall Seger, McMains & Constant, Corpus Christi, for appellee.

Before NYE, C.J., and BENAVIDES and DORSEY, JJ.

OPINION

NYE, Chief Justice.

Petitioner, Illinois National Insurance Company, challenges by writ of error the default judgment rendered in favor of respondents, Adriana Perez and daughters. We affirm.

On December 21, 1984, Jose Perez was killed in an industrial accident while working for Everest Minerals Corporation. Petitioner, the workers' compensation carrier for Everest Minerals Corporation, answered respondent's claim, paying worker's compensation death benefits and funeral expenses. On December 12, 1985, respondents filed a wrongful death action against Everest Minerals Corporation, Everest Exploration, Inc., United States Filter Fluid Systems Corporation and U.S.X. Corporation for the death of their husband and father. Petitioner was not named in this third party suit nor did it intervene. Respondents settled and released their third party claims against Everest Minerals Corporation, Everest Exploration, Inc. and United States Filter Fluid Systems Corporation (U.S.X. Corporation, having previously been dismissed as a party defendant, was not a party to the settlement). The trial court entered a judgment including the above-mentioned settlement and releases. As of the date of settlement, petitioner had paid respondents a total of $43,303.00 in worker's compensation death benefits.

Respondents filed suit against petitioner approximately one month later, January 20, 1989, seeking recovery of attorney's fees in the amount of one-third of the past and future subrogation benefits under Tex.Rev.Civ.Stat.Ann. art. 8307 § 6a (Vernon Supp.1990). Petitioner had not responded to respondent's previous efforts to settle attorney fees on past and future compensation benefits. Concurrently with the filing of this lawsuit, respondents tendered $43,303.00 into the court's registry. The petition was served on petitioner's registered agent for service of process on January 23, 1989. The return was filed on February 1, 1989. Petitioner failed to answer prior to the default judgment hearing on February 15, 1989 and neither appeared nor participated in the hearing.

After hearing testimony from respondents and expert witnesses regarding the issues, the trial court rendered a default judgment against petitioner. The court then allowed respondents to withdraw the $43,303.00 previously tendered into the court's registry as partial satisfaction of the default judgment. The trial court signed the judgment on February 16, 1989.

Approximately six weeks later, petitioner filed a motion for new trial. The motion was untimely because it was filed twelve days after the termination of the trial court's plenary jurisdiction. See generally, Corro v. Southwestern Bell Media, Inc., 784 S.W.2d 471 (Tex.App.--Corpus Christi, 1989); Willacy County Appraisal Review Board v. South Padre Land Co., 767 S.W.2d 201, 202 (Tex.App.--Corpus Christi 1989, no writ); Tex.R.Civ.P. 306a, 329b(a). Thereafter, petitioner filed this writ of error, asserting four points of error.

To successfully attack a default judgment on appeal by writ of error the petitioner must: (a) file the writ within 6 months after the final judgment is signed; (b) be a party to the lawsuit; (c) have not participated at trial; and (d) show error apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-11 (1961); Barrera v. Barrera, 668 S.W.2d 445, 447 (Tex.App.--Corpus Christi 1984, no writ); Tex.R.App.P. 45. Petitioner filed a timely writ of error, was a party to the lawsuit, and did not participate at trial; therefore, the controlling issue in this case is whether there was error on the face of the record.

Petitioner asserts by its third point of error that the trial court erred in rendering judgment for respondents because such award violated Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1990). Additionally, by its fourth point of error, petitioner asserts that the trial court erred in allowing respondents to withdraw the $43,303 from the court's registry.

A writ of error constitutes a direct attack on a default judgment and in order for an appellant to prevail in this type of an appeal, the invalidity of the judgment must be disclosed by the face of the record. Pace Sports, Inc. v. Davis Brothers Publishing Co., Inc., 514 S.W.2d 247 (Tex.1974); Brown v. McLennan County Children's Protective Services, 627 S.W.2d 390, 392 (Tex.1982); Jefferies v. Davis, 759 S.W.2d 6, 7-8 (Tex.App.--Corpus Christi 1988), writ denied per curiam, 764 S.W.2d 559 (Tex.1989); Jaramillo v. Liberty Mutual Fire Insurance Co., 694 S.W.2d 585, 587 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.); Tex.R.App.P. 45. When reviewing a default judgment on writ of error (where all other procedural prerequisites for entering such a default judgment have been met), the appellate court must only be concerned with: (1) the sufficiency of the pleadings to allege a cause of action for (a) which liability may rest and (b) on which damages may be assessed, (if it is a liquidated claim); or (2) the sufficiency of damage evidence presented, (if an unliquidated claim), to support the default judgment rendered by the trial court. First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 645 (Tex.App.--Dallas 1987, no writ); First National Bank of Irving v. Shockley, 663 S.W.2d 685, 688 (Tex.App.--Corpus Christi 1983, no writ); see also, McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex.1965). It is true that if the facts set out in the petition allege a cause of action, a default judgment conclusively establishes the defendant's liability. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984).

The record here shows that respondent's pleadings were sufficient to allege the cause of action for which liability and damages might be assessed. By its third and fourth points of error, petitioner improperly raises defenses to its liability, a right which it waived in defaulting, and which does not constitute error on the face of the record. Points of error numbers three and four are overruled.

Petitioner asserts by its first and second points of error that respondents had released their causes of action against petitioner and, therefore, respondents' recovery is barred by the doctrine of res judicata ¹ and that such does constitute error on the face of the record. Petitioner argues that the settlement and release agreement terms negotiated between Everest and respondents released petitioner because it was an "insurer" of Everest Minerals Corporation. We disagree.

The settlement agreement between respondents and Everest Minerals Corporation and Everest Exploration, Inc. (hereafter known collectively as "Everest") provides in pertinent part:

That for and in consideration of the payment 1. an immediate cash payment of $441,750.00 to Adriana L. Perez and her attorney, Steven W. Fieldcamp; 2. to Sherry Lamay Perez, born January 10, 1974, $1,234.59 per month for life ... and, 3. to Marcella Marie Perez, born March 14, 1983, $2,624.68 per month for life ... by Everest; Adriana Perez, individually and as next friend of the minor children, Sherry Lamay Perez and Marcella Marie Perez, hereby releases and agrees to indemnify Everest, their officers, agents, servants, employees, privies, successors, insurers, related concerns, and assigns, as the result of an accident which occurred on December 21, 1984 and resulted in the death of Jose Luis Perez.

It is expressly agreed in consideration of the aforesaid payments that Adriana Perez, individually and as next friend of the minor children, Sherry Lamay Perez and Marcella Marie Perez, will defend, indemnify, save and hold harmless Everest, their officers, agents, servants, employees, privies, successors, insurers, related concerns, and assigns from and against any claims of action or causes of action, which may or could be asserted by Adriana L. Perez, or the minor children, Sherry Lamay Perez and Marcella Marie Perez, against Everest, directly or indirectly, including all derivative claims, liens and unpaid bills relating to the death of Jose Luis Perez. (emphasis added)

In McMillen v. Klingensmith, 467 S.W.2d 193, 196 (Tex.1971), the Texas Supreme Court abolished the common law "unity of release" rule, under which a release of one joint tortfeasor fully discharged all remaining tortfeasors. The court held that a release fully discharges only those parties named or otherwise specifically identified therein. Subsequently, the court held that the naming of a general class of tortfeasors does not constitute specific indentification of each member of the class unless the release refers to him by name or "with such descriptive particularity that his identity or his connection with the tortious event" cannot be doubted. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex.1984). The important policy advanced by this rule is to protect claimants from inadvertently releasing their causes of action against unnamed and, perhaps, unknown tortfeasors. Finally, general, categorical release clauses must be narrowly construed.

The release in question specifically relieves Everest from all liability for the death of Jose Perez. This includes boilerplate release language to...