Tramco Enterprises, Inc. v. Independent American Sav. Ass'n, 2-86-110-CV

• Decision Date: 29 October 1987
• Docket Number: No. 2-86-110-CV,2-86-110-CV
• Citation: 739 S.W.2d 944
• Parties: TRAMCO ENTERPRISES, INC., Appellant, v. INDEPENDENT AMERICAN SAVINGS ASSOCIATION, Thomason Properties, Inc., and Monty Thomason, Jr., Appellees.
• Court: Texas Court of Appeals

Page 944

739 S.W.2d 944

TRAMCO ENTERPRISES, INC., Appellant, v. INDEPENDENT AMERICAN SAVINGS ASSOCIATION, Thomason Properties, Inc., and Monty Thomason, Jr., Appellees.

No. 2-86-110-CV.

Court of Appeals of Texas Fort Worth.

Oct. 29, 1987.

Locke, Purnell, Boren, Laney & Neely and Michael L. Jones, Michael H. Collins, Dallas, for appellant.

Brice & Mankoff and Alan Leibel and Michael R. Swan, Dallas, Ball, Landrith, Kulesz & Hubble and Chester G. Ball, Arlington, for appellees.

Before JOE SPURLOCK, II, FARRIS and KELTNER, JJ.

OPINION

JOE SPURLOCK, II, Justice.

This is an appeal by petition for writ of error from the trial court's dismissing with prejudice appellant Tramco's claim in intervention. The trial court entered an order of dismissal with prejudice between Monty Thomason Jr. and Thomason Properties, Inc., (Thomason), Independent American Savings Association ("Independent"), and Gary M. Pridavka, the opposing parties in the main lawsuit, and included in the dismissal the intervention claim of Tramco.

We reverse and remand the judgment dismissing Tramco's intervention.

A review of the case reveals that Thomason filed suit against Independent & Pridavka to enjoin the foreclosure of Independent's deed of trust covering a construction site owned by Thomason. The court issued a temporary restraining order, but it was not served upon Independent, and the foreclosure sale was held. Thereafter, Tramco filed its original petition of intervention asserting claims against Thomason Properties, Thomason Jr., and Independent. When Thomason, Independent, and Pridavka settled the claims between them, Thomason submitted a motion with a proposed order of dismissal to the trial court. A copy of the motion to dismiss was not sent to Tramco nor its counsel. The motion did not contain a certificate of service. Tramco did not receive notice of the filing of the motion to dismiss.

The motion to dismiss requested that the trial court "fully dismiss the above entitled and numbered cause with respect to Independent American Savings Association and Gary M. Pridavka." The prayer asked only that Thomason Properties' suit against Independent and Pridavka be dismissed. The motion did not seek dismissal of nor mention Tramco's intervention action. Without a hearing, the trial court entered the order of dismissal on November 26, 1985, stating that the cause was dismissed with prejudice with respect to Independent and Pridavka. The trial judge inserted into the order in his own handwriting the language "any relief not herein granted is denied." The order was mailed to each attorney of record on December 2, 1985 including Tramco's. Discovery matters nevertheless later occurred among the attorneys on the intervention matter.

On April 22, 1986, Independent filed a plea in bar and motion for summary judgment alleging as one of its grounds that the trial court's insertion of the phrase "any relief not herein granted is denied" had fully and finally dismissed all claims pending in the action, including Tramco's claim. Independent claimed that the order was final because over 30 days had elapsed since the court signed the order. Independent contended that the trial court had lost jurisdiction to hear the case. At a hearing on the plea in bar on May 16, 1986, the court ruled that its November 26, 1985 order of dismissal was a final judgment and that the order had dismissed with prejudice Tramco's intervention claims against Thomason Properties, Thomason, Jr. and Independent.

The record does not contain a statement of facts of the plea in bar hearing on May 16, 1986. Only the court's ruling is noted on the docket sheet. However, Independent has not challenged the statements in Tramco's brief regarding the facts underlying the record except that Independent notes appellant received a copy of the order of dismissal soon after the order was signed. Therefore, we accept the facts set out in appellant's brief as permitted in TEX.R.APP.P. 74(f), that it received no notice of the hearing and did not get an opportunity to appear.

In three points of error, Tramco asserts that the trial court erred in holding that its order of dismissal had dismissed Tramco's claims. Tramco argues the dismissal was not effective because: (1) it did not receive notice of the motion to dismiss and thus was unable to appear and defend itself against the order; (2) the motion to dismiss did not request any relief against Tramco's claims; and (3) Tramco was denied due process of law by the dismissal without notice.

To succeed by writ of error review, Tramco must show: (1) that the petition for writ of error was filed within six months of the date of final judgment; (2) that it was a party to the suit; (3) that it did not participate in the trial; and (4) that error was apparent from the face of the record. Brown v. McLennan County Etc., 627 S.W.2d 390, 392 (Tex.1982); TEX.R.APP.P. 45. We conclude Tramco meets all four requirements. It is undisputed that Tramco timely petitioned for writ of error and that Tramco was a party to the suit. The remaining two issues presented here are whether Tramco participated in the trial and whether error appears on the face of the record.

We will first consider whether Tramco participated in the trial. TEX.R.APP.P. 45(b) provides that:

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.]

Id. The Texas Supreme Court has defined the meaning of "actual trial" in article 2249a, section 1, TEX.REV.CIV.STAT.ANN., now TEX.R.APP.P. 45, as a hearing in open court leading up to the rendition of judgment on questions of law and fact. Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097 (1941). The extent of participation in the actual trial of the case which would preclude a party from obtaining appellate review by writ of error is one of degree. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex.1985). The courts have recognized that a large degree of participation is required before a party is denied appeal by writ of error, especially considering that statutes giving or regulating the right of appeal should be liberally construed in favor of the right of appeal thereunder. See Lawyers Lloyds, 152 S.W.2d at 1098. For example, filing an answer [Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340 (Tex.App.--Amarillo 1967, writ ref'd n.r.e.) ], signing a waiver of citation, or signing an agreement dividing marital property incident to divorce [Stubbs, 685 S.W.2d at 645], is not participation. However, taking part in all prior steps of a summary judgment proceeding except appearing at the hearing on the motion for summary judgment [Norman v. Dallas Cowboys Football Club, 665 S.W.2d 137 (Tex.App.--Dallas 1983, no writ) ], or waiving citation and signing a judgment prior to its entry by the trial court [Blankinship v. Blankinship, 572 S.W.2d 807 (Tex.Civ.App.--Houston [14th Dist.] 1978, no writ) ] is participation.

We find that Tramco did not participate in the actual trial of the case to a degree sufficient to deny it from obtaining writ of error review. Tramco did not discover that a judgment had been rendered against it until after the judgment had been entered. The motion to dismiss was submitted to the trial court without notice to Tramco and no hearing was held on the motion. Tramco had no opportunity to participate in the events leading up to the entry of the order of dismissal. The procedure of appealing by writ of error was not intended to cut off the rights of those who discover that a judgment has been rendered against them after the judgment has been rendered. Lawyers Lloyds, 152 S.W.2d at 1097-98.

Appellees' argument that Tramco participated in the trial by filing a petition in intervention, participating in discovery, and receiving appellee's answers to the plea in intervention and a copy of the order of dismissal are without merit. Appearing, answering, filing pleadings, seeking various forms of relief and participating in preliminary hearings is not participating in the actual trial that produced the judgment appellant now attacks. See Davis v. Hughes Drilling Co., 667 S.W.2d 183, 184 (Tex.App.--Texarkana 1983, no writ); In Interest of Van Hersh, 662 S.W.2d 141, 144 (Tex.App.--Amarillo 1983, no writ). We find Tramco did not participate in the trial.

We next consider whether appellant has shown error apparent from the face of the record. We find that the error appears on the face of the record for three reasons: (1) the civil procedure notice rules were not complied with by appellee; (2) such noncompliance violated appellant's right to due process; and (3) the trial court abused its discretion by dismissing appellant's claims when the motion did not request such relief and appellant had no notice of the motion for dismissal.

First, the invalidity of the order of dismissal appears from the face of the record because Independent did not give Tramco notice or a copy of the motion for dismissal. Texas Rule of Civil Procedure required that:

An application to the court for an order and notice of any hearing thereon ... shall be served upon the adverse party not less than three days before the time specified for the hearing unless otherwise provided by these rules or shortened by the court.

TEX.R.CIV.P. 21. Texas Rule of Civil Procedure 21a requires that any motion submitted to the court must be delivered to opposing counsel either in person or by certified mail. In addition, TEX.R.CIV.P. 72 states that whenever any party files a motion of any character, that party must deliver or mail the motion to all parties or their attorneys and must certify to the court in writing on the filed pleading that he has complied with rule 72. TEX.R.CIV.P. 61 provides that these rules of pleading apply to intervenors.

None of these rules were complied with in this case. Tramco...