Stoner v. Thompson

• Citation: 578 S.W.2d 679
• Decision Date: 14 March 1979
• Docket Number: No. B-8005,B-8005
• Parties: Roger H. STONER, Petitioner, v. Joe Glenn THOMPSON et al., Respondents.
• Court: Supreme Court of Texas

Page 679

578 S.W.2d 679

Roger H. STONER, Petitioner, v. Joe Glenn THOMPSON et al., Respondents.

No. B-8005.

Supreme Court of Texas.

March 14, 1979.

Rehearing Denied April 11, 1979.

Horkin & Horkin, Patrick J. Horkin, Jr., Corpus Christi, for petitioner.

Andrews, Kurth, Campbell & Jones, Hall E. Timanus, Houston, Fulbright & Jaworski, Simeon Lake, Houston, for respondents.

SPEARS, Justice.

Petitioner, Roger Stoner, appeals from a judgment against him granting injunctive relief, declaratory relief and money damages to Texas Media, Inc. and Arnold and Audrey Malkan, intervenors and respondents herein. The judgment was entered on their interventions and counterclaim after Stoner, the original plaintiff, had taken a nonsuit and refused to participate in the trial on the merits. Stoner contends there were no pleadings to support the judgment given. The Court of Civil Appeals has disagreed and affirmed the trial court. 570 S.W.2d 511. We affirm except as to money damages awarded Texas Media, Inc.

The factual background and chronology of events is fully set out in the opinion of the Court of Civil Appeals. We will only recite here such facts as are necessary to decide the sufficiency of pleadings question.

Stoner filed the original suit in Harris County District Court on September 2, 1976, against Joe Glenn Thompson, seeking an injunction and specific performance.

The Malkans intervened on September 13, asking that injunctive relief sought by Stoner be denied and on September 29 filed a counterclaim for money damages, charging that Stoner interfered with their contractual relations. On November 10, the Malkans filed a supplemental petition in intervention asking for injunctive relief against Stoner. Texas Media intervened on October 8, asking for a declaratory judgment as to its rights and liabilities, and on November 29, filed an application seeking a restraining order, temporary injunction and permanent injunction against Stoner. Stoner filed answers to these pleadings.

On February 17, 1977, Stoner moved to nonsuit without prejudice his causes of action on file. The order of the trial court granting the motion provided that "nothing herein shall be prejudicial to any of the pleadings or rights asserted by the other parties (seeking relief) herein."

On June 13, the trial court granted a motion for preferential setting filed by the Malkans and set the case for trial on July 11. Stoner's motion and supplemental motion to set aside this order were denied after a hearing on July 8. On the morning of trial, July 11, Stoner's attorney, Mr. Horkin, appeared and urged a "special appearance," citing Rule 120a. ¹ Stoner was not present. After the trial court overruled the "special appearance," counsel for Stoner announced to the court that he represented Stoner solely for the purpose of making a special appearance and was not authorized to proceed further on his client's behalf. The Statement of Facts reflects the following:

"MR. HORKIN: Thank you, Your Honor. We decline to proceed further, Your Honor.

"THE COURT: That is your privilege to make that election. The Court says that you are here, and you say that you are leaving, so good day.

"MR. HORKIN. Thank you.

"(Reporter's Note: Mr. Horkin retiring from the courtroom.)"

After a brief recess, the Malkans were granted leave to file a trial amendment asking for declaratory judgment relief under Art. 2524-1, and trial without a jury began. Evidence was then presented to the trial court by the Malkans and Texas Media with the resulting judgment in their favor.

The judgment of the trial court granted all of the relief sought by the interventions and counterclaims of Texas Media and the Malkans, and in addition, granted the following relief not asked for in pleadings at the time Mr. Horkin left the courtroom: (1) that Texas Media, Inc. recover $50,000.00 from Stoner, and (2) declaratory judgment relief for the Malkans, declaring their contract to purchase the stock in Texas Media binding and legally enforceable. Stoner complains, Inter alia, of both of these awards by the trial court as without pleadings to support them. All relief granted by the judgment of the trial court was supported by the evidence adduced.

The broad question presented is to what extent can a trial court grant relief to the petitioning parties on their pleadings where the opposing party, who has answered, fails to appear for trial or, as here, quits the trial.

The parties here differ as to what type of judgment was entered under the circumstances by the trial court. Stoner contends it was a judgment Nihil dicit or a Rule 239 default judgment; Texas Media and the Malkans say it was a judgment pursuant to a trial on the merits. Some courts, under the circumstances here, would describe it as a judgment Nihil dicit. Evans v. McNeill, 41 S.W.2d 268 (Tex.Civ.App.1931, writ dism'd); Gomperts v. Wendeborn, 427 S.W.2d 904 (Tex.Civ.App.1968, no writ). Others would term it a judgment upon trial. Webb v. Reynolds, 207 S.W. 914 (Tex.Comm'n App.1919, judgmt. adopted); Kirkman v. Alexander, 280 S.W.2d 365 (Tex.Civ.App.1955, writ ref'd n. r. e.); Hall v. C-F Employees Credit Union, 536 S.W.2d 266 (Tex.Civ.App.1976, no writ).

The judgment in this case was neither a no-answer default judgment, nor a judgment Nihil dicit. Frymire Engineering Company, Inc. v. Grantham, 524 S.W.2d 680 (Tex.1975); Otten v. Snowden, 550 S.W.2d 758 (Tex.Civ.App.1977, no writ). Nor was it a judgment upon trial; this Court has said it was a form of "judgment by default," a post-answer default judgment. Mullen v. Roberts, 423 S.W.2d 576, 579 (Tex.1968), citing Continental Oil and Gas Production Co. v. Austin, 17 S.W.2d 1114 (Tex.Civ.App.1926, no writ).

While there is a difference between a no-answer default judgment and a judgment Nihil dicit, the general rule is that the two are so similar that the same rules apply to each with respect to the effect and validity of the judgment. Storey v. Nichols, 22 Tex. 87 (1858); see 49 C.J.S. Judgments § 187 at 325 (1947); Pohl and Kirlin, Judgments By Default A Survey of Texas Law, 31 Sw.L.J. 465 (1977). In both instances, it is said that the non-answering party has "admitted" the facts properly pled and the justice of the opponent's claim, although a judgment Nihil dicit carries an even stronger confession than the default judgment. Storey v. Nichols, supra; Texas Quarries v. Pierce, 244 S.W.2d 571 (Tex.Civ.App.1951, no writ). In one respect, both the no-answer default judgment and the judgment Nihil dicit differ from a post-answer default judgment where an answer is on file but defendant fails to appear at the trial. A post-answer "default" constitutes neither an abandonment of defendant's answer nor an implied confession of any issues thus joined by the defendant's answer. Judgment cannot be entered on the pleadings, but the plaintiff in such a case must offer evidence and prove his case as in a judgment upon a trial. Frymire Engineering Company, Inc. v. Grantham, supra.

A judgment must be based upon pleadings, and as this Court has stated, "(A) plaintiff may not sustain a favorable judgment on an unpleaded cause of action, in the absence of trial by consent . . . ." Oil Field Haulers Association, Inc. v. Railroad Commission, 381 S.W.2d 183, 191 (Tex.1964). In determining whether a cause of action was pled, plaintiff's pleadings must be adequate for the court to be able, from an examination of the plaintiff's pleadings alone, to ascertain with reasonable certainty and without resorting to information aliunde the elements of plaintiff's cause of action and the relief sought with sufficient information upon which to base a judgment. C & H Transportation Company v. Wright, 396 S.W.2d 443 (Tex.Civ.App.1965, writ ref'd n. r. e.). Mere formalities, minor defects and technical insufficiencies will not invalidate a default judgment where the petition states a cause of action and gives "fair notice" to the opposing party of the relief sought. Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958).

The principle that a plaintiff will not be permitted to obtain relief on a cause of action which is not contained in pleadings of which the defendant can be said to have "fair notice" has been consistently applied by Texas courts to all three types of "default" judgments: (1) a default judgment as defined by Rule 239, where no answer has been filed, Edwards Feed Mill v. Johnson, supra; Weatherford v. Van Alstyne, 22 Tex. 22 (1858); (2) a judgment nihil dicit, where no answer placing the merits of the case in issue is on file, Goodlett v. Stamps, 29 Tex. 121 (1867); Storey v. Nichols, supra; O'Quinn v. Tate, 187 S.W.2d 241 (Tex.Civ.App.1945, writ ref'd); Spivey v. Saner-Ragley Lumber Co., 284 S.W. 210 (Tex.Comm'n App.1926, judgmt. adopted); and (3) a post-answer "default" judgment where a defendant has answered but fails to appear for trial, Mullen v. Roberts, 423 S.W.2d 576, 579 (Tex.1968); City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (Tex.Comm'n App.1937, opinion adopted). The controlling principle has been correctly summarized:

"The rules expressly countenance more general allegations than formerly were permitted, and the default judgment will stand if the plaintiff has alleged a claim upon which the substantive law will give relief, and has done so with sufficient particularity to give fair notice to the defendant of the basis of his complaint, even though he has stated some element or elements in the form of legal conclusions which will need to be revised if attacked by special exceptions." 4 McDonald, Texas Civil Practice § 17.23.3 at 120 (1971).

In Mullen the defendant filed a general denial, but his attorney thereafter withdrew with leave of the court. On the day of trial neither the defendant nor any attorney representing him appeared, and a "default" judgment was entered against him. After stating the rule that "both a default judgment and a judgment Nihil dicit must...