Welborn Mortg. Corp. v. Knowles
| Decision Date | 22 February 1993 |
| Docket Number | No. 05-92-00516-CV,05-92-00516-CV |
| Citation | 851 S.W.2d 328 |
| Parties | WELBORN MORTGAGE CORPORATION, Appellant, v. Lonnie Ray KNOWLES and Wife, Cindy Knowles, Appellees. |
| Court | Texas Court of Appeals |
Jan R. Thurman, Annette Regan Loys, Thurman, Harrison & Steck, Arlington, for appellant.
James M. Morris, Kennedy, Minshew, Campbell, Fry & Morris, Sherman, for appellees.
Before BAKER, KINKEADE, and MALONEY, JJ.
A jury found Welborn Mortgage Corporation misrepresented the terms of a loan it made to the Knowleses. The trial court entered judgment for the Knowleses for actual and exemplary damages. Welborn contends the Knowleses' claims are not viable as a matter of law. Welborn argues there was no evidence or insufficient evidence to support the jury's answers to the questions the trial court submitted on the Knowleses' theory of the case.
In one cross-point of error, the Knowleses contend the trial court erred in finding that Welborn's counsel did not have actual notice of the entry of the judgment until October 21, 1991. The Knowleses contend this finding is against the great weight and preponderance of the evidence. The Knowleses contend this Court lacks jurisdiction to hear this appeal because Welborn did not timely file a motion for new trial.
We agree that the trial court's finding of when Welborn's counsel had actual knowledge of the entry of the judgment is against the great weight and preponderance of the evidence. We sustain the Knowleses' cross-point. We dismiss this appeal for want of jurisdiction.
The Knowleses bought a house in Grayson County and financed it through Welborn. One of the documents Welborn furnished to the Knowleses stated the loan was assumable under its original terms. The Knowleses defaulted on the loan payments. They listed their property for sale with a broker. The broker advertised the loan was assumable. However, when the broker contacted Welborn and asked for the assumption balance, Welborn responded the loan was not assumable. The Knowleses sued Welborn for DTPA violations and negligent misrepresentation.
The parties tried the case to a jury. The jury returned a verdict for the Knowleses for $55,000 in actual and exemplary damages. The Knowleses moved for judgment on the jury verdict. Welborn moved for judgment n.o.v. On August 7, 1991, the trial court signed the judgment the Knowleses requested.
The court clerk did not notify Welborn that the trial court signed the judgment as required by rule 306a of the Texas Rules of Civil Procedure. Welborn maintained it did not learn of the entry of the judgment until its lawyer received a letter from the Knowleses' lawyer stating the judgment was final and offering Welborn the opportunity to pay it voluntarily without additional expense of an execution.
Welborn moved the court to make a finding under rule 306a(5) that it did not have actual notice of the entry of the judgment until October 21, 1991. The trial court found that Welborn and its attorneys first had actual knowledge of the entry of the judgment on October 21, 1991. The court further found that neither Welborn nor its attorneys received the notice of the judgment required by rule 306a(3) before that date.
The Knowleses' counsel wrote a letter dated August 7 to the trial judge with a copy to Welborn's attorney. This letter stated:
Dear Judge Perkins:
Enclosed with this letter please find the original proposed Judgment for entry in the above-entitled and numbered cause. Having checked the Court's file, it appears that the original Judgment has been misplaced. As you will recall, a hearing has been held on Plaintiff's Motion for Judgment and Defendant's Motion for Judgment N.O.V. We respectfully request that the Court enter the enclosed Judgment. It is the same Judgment that was attached to Plaintiff's Motion for Judgment.
Attached to this letter was a four page judgment with the entire jury charge attached as an exhibit.
The Knowleses' counsel hand-delivered this letter and the judgment to the court on August 7. The trial court signed the judgment on August 7. The Knowleses' counsel sent a signed copy of the judgment to Welborn's counsel.
Welborn's counsel received the August 7 letter, together with the signed copy of the judgment within a few days after August 7. Welborn's counsel said he read the letter. He said the letter indicated to him that the enclosed judgment was proposed for entry. He relied on the letter. He did not examine the enclosed judgment. He had no reason to examine it in detail or to examine it at all. He relied on the Knowleses' counsel as an officer of the court to state correctly in his letter that which he had enclosed.
Welborn's counsel stated, based on his several years of practice, that a judge frequently does not sign a submitted judgment, nor is the judge required to do so. He acknowledged that the judgment enclosed with the August 7 letter was a copy of the one the judge signed on the same day. He said the letter was the only correspondence he received about the judgment until he received the Knowleses' counsel's letter on October 21, 1991.
On cross examination, Welborn's counsel admitted that from about August 8, 1991, he did have a signed copy of the judgment in his possession. He acknowledged that the signed judgment was with the August 7 letter. He admitted he did not look at the attachment. He acknowledged he had a duty to his client to review all papers sent to him. He denied he had a similar duty to review the document attached to the August 7 letter. He stated he did not check to see if the copy was a signed copy of the judgment. He did not check to see whether the Knowleses' counsel misstated any facts in the August 7 letter. He admitted opposing counsel had no duty to give notice of entry of the judgment.
The court clerk testified she was familiar with the case. By looking at the docket sheet, she was aware the trial court signed a judgment on August 7. She did not know that the rules required her, as the clerk, to mail notice of the signing of the judgment together with a copy of the judgment. However, she wrote on the docket sheet on August 7, 1991, "copies to attorney." On cross-examination, the clerk said she could not tell from the docket sheet whether she sent a notice to Welborn's counsel.
Knowleses' counsel said he was in court on August 7 and asked the trial judge if the judge was entering judgment in the case. The judge told the lawyer the judge was going to enter the judgment the lawyer submitted. The Knowleses' counsel told his secretary to send a copy of the proposed judgment to Welborn's counsel. By reconstruction, he remembers that the trial court obviously signed the judgment the same day his office sent it for entry. It was clear to him that his secretary inadvertently attached a copy of the signed judgment with the letter to Welborn's counsel.
The Rule
Rule 306a(5) states:
5. Motion, Notice and Hearing. In order to establish the application of paragraph (4) of this rule [extending the appellate timetable], the party adversely affected [by a judgment of which he has received late notice] is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.
TEX.R.CIV.P. 306a(5) (Vernon Supp.1992). 1
The rule provides that the party adversely affected by the judgment must prove the date it acquired actual notice of the entry of the judgment. Thermex Energy Corp. v. Rantec Corp., 766 S.W.2d 402, 405 (Tex.App.--Dallas 1989, writ denied).
Notice, in law, is of two kinds, actual and constructive. In this case, constructive notice does not concern us. Actual notice may be either express or implied. Exxon Corp. v. Raetzer, 533 S.W.2d 842, 846 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.). In common parlance actual notice consists in express information of a fact. However, in law, the term is more comprehensive. In law, whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, if pursued by the proper inquiry, a party might ascertain the full truth. Exxon Corp., 533 S.W.2d at 846; Portman v. Earnhart, 343 S.W.2d 294, 297 (Tex.Civ.App.--Dallas 1960, writ ref'd n.r.e.).
Means of knowledge with the duty of using those means are in equity equivalent to knowledge itself. Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. Exxon Corp. 533 S.W.2d at 846 (emphasis in original); Portman, 343 S.W.2d at 297. Actual notice also embraces knowledge of all those facts that reasonable inquiry would disclose. The duty of inquiry extends only to matters that known facts fairly suggest. Flack v. First Nat. Bank, 148 Tex. 495, 226 S.W.2d 628, 631 (1950).
The law charges all parties and their lawyers with notice of all orders and judgments that the court renders in the case. Pentikis v. Texas Electric Serv. Co., 470 S.W.2d 387, 390 (Tex.Civ.App.--Fort Worth 1971, writ ref'd n.r.e.). Passive good faith will not serve to excuse willful ignorance. Continental Credit Corp. v. Norman, 303 S.W.2d 449, 455 (Tex.Civ.App.--San Antonio 1957, writ ref'd n.r.e.).
The law charges one who has knowledge of facts that would cause a prudent man to inquire further with notice of the facts that, by use of ordinary intelligence, he would have learned. Flack, 226 S.W.2d at 632. Ordinarily, notice is a question of fact. Notice becomes a question of law only when there is no room for ordinary minds to differ about the proper conclusion the fact finder must draw from the evidence. Exxon Corp., 533 S.W.2d at 846; Portman, 343 S.W.2d at 298.
We review the trial court's findings of the date a party...
To continue reading
Request your trial
-
In Re Endeavour Highrise
...of the means of information at hand would have disclosed.”) (internal quotations omitted); accord Welborn Mortg. Corp. v. Knowles, 851 S.W.2d 328, 331 (Tex.App.-Dallas 1993, writ denied); Motor Vehicle Board v. El Paso Independent Automobile Dealers Association, Inc., 1 S.W.3d 108, 111 (Tex......
-
In re Inc.
...notice of the facts that, by use of ordinary intelligence, he would have learned. Flack, 226 S.W.2d at 632.Welborn Mortg. Corp. v. Knowles, 851 S.W.2d 328, 331 (Tex.App.1993). See Texoma Adver. Co. v. Siblings, L.L.C., No. 14–08–00602–CV, 2009 WL 1660619, at *5 (Tex.App. June 16, 2009) (mem......
-
Maeberry v. Gayle
...Hironymous v. Allison, 893 S.W.2d 578, 583 (Tex.App.--Corpus Christi 1994, writ denied); Welborn Mortg. Corp. v. Knowles, 851 S.W.2d 328, 332 (Tex.App.--Dallas 1993, writ denied). In this case, the trial court was free to believe Gayle's testimony that all anyone told him about the document......
-
Wells Fargo Bank, N.A. v. Leath
...to submit only controverted issues. No jury finding is necessary to establish undisputed facts.”); cf. Welborn Mortg. Corp. v. Knowles, 851 S.W.2d 328, 331 (Tex.App.-Dallas 1993, writ denied) (“Ordinarily, notice is a question of fact. Notice becomes a question of law only when there is no ......