Williams v. Holley
| Decision Date | 26 May 1983 |
| Docket Number | No. 10-82-160-CV,10-82-160-CV |
| Parties | G.E. WILLIAMS, et al., Appellant, v. Jerry D. HOLLEY, Appellee. |
| Court | Texas Court of Appeals |
Robert J. Hanley, Waco, for appellant.
Jim Meyer and Vance Dunnam, Waco, for appellee.
The defendants in the trial court, G.E. Williams and H.J. Sallee, appeal by writ of error a post-answer default judgment rendered on pleadings set forth for the first time in the plaintiff's first amended original petition filed after defendants had answered the original petition. For reversal, the defendants contend the judgment record does not show notice to them of the amended petition in accordance with the provisions of Rule 72, Vernon's Tex.Rules Civ.Proc., 1 nor notice to them of the trial setting required by Rule 245. We affirm the judgment.
Rule 72 provides in pertinent parts as follows:
Under the provisions of Rule 245, defendants were entitled to 10 days notice of the trial setting upon which the default judgment was rendered.
The plaintiff, Jerry D. Holley, filed his original petition in this case on October 9 1981. He alleged that in November, 1980, he leased to defendants a building and real property located in Austin, Texas; that defendants obligated themselves to pay as rental the sum of $4,000.00 per month; and that the rental payments for the months of July, August and September were presently due and owing. Plaintiff pleaded for recovery of this unpaid rent and for recovery of reasonable attorneys fees. Defendants answered this petition with a general denial filed on October 19, 1981, by a local attorney. On February 2, 1982, plaintiff filed his first amended original petition. He again pleaded the lease agreement calling for monthly rental at the rate of $4,000.00 per month, and he alleged that unpaid rent for eight months totaling $32,000.00 was now due and payable. Additionally he pleaded for recovery of an unspecified amount of taxes due from defendants under the terms of the lease, for the cost to repair damages inflicted upon the leased premises by defendants "in excess of $60,000.00," and for the recovery of reasonable attorneys fees. This amended petition did not contain the certification by plaintiff's attorney required by Rule 72 that he had delivered or mailed a copy of the amended pleading to defendants or their attorney.
No additional pleadings were filed by the parties.
On August 9, 1982, the trial court rendered and signed the judgment in the case awarding plaintiff recovery of $100,864.45 actual damages against defendants, and recovery of attorneys fees in the amount of $1,000.00. The judgment recites in part that the case came on for trial on August 9, 1982, "and came plaintiff, Jerry D. Holley, in person and by attorney, and the defendants, G.E. Williams and H.J. Sallee, having entered their appearance through filing of a general denial and having been notified of the trial setting their attorney of record, failed to appear and wholly made default; a jury being waived, the court, after presentation of testimony, evidence and arguments of counsel, finds that plaintiff is entitled to recover judgments against defendants ..."
Defendants perfected this writ of error appeal on October 26, 1982. In addition to the transcript, the appellate record includes a statement of facts certified by the court reporter as containing a "true and correct transcription of all the proceedings in the above styled and numbered cause, on default hearing, all of which occurred in open court or in chambers and were reported by me." The evidence adduced at the trial supports the award of damages and attorneys fees made by the court, and defendants do not assert otherwise. The record of the trial shows irrefutably that the sum of $100,864.45 awarded plaintiff as damages was calculated by the court as follows: $32,000.00 for unpaid rental for eight months at $4,000.00 per month; $8,864.45 for taxes due; and $60,000.00 for damages to the leased building.
In their brief defendants recognize the rule that in order for a party appealing to the court of appeals by writ of error to obtain relief the invalidity of the judgment must be disclosed by the papers on file in the case. Pace Sports, Inc. v. Davis Brothers Pub. Co., Inc., 514 S.W.2d 247 (Tex.1974). They do not assert that the default judgment is invalid on its face, and it is not, for it affirmatively shows by its very terms jurisdiction of the person of defendants and of the subject-matter of the suit. Rather, defendants assert invalidity of the judgment because the record does not show they were given 10 days notice of setting of the trial required by Rule 245, and because the record does not show that a copy of plaintiff's amended petition was either delivered or mailed to defendants or their attorney as required by Rule 72 or that defendants otherwise had actual notice of the pleading. We do not agree with these contentions.
The right of a party to be heard in a contested case is fundamental, and failure to give adequate notice of the trial setting constitutes lack of due process. P. Bosco & Sons Contracting Corporation v. Conley, Lott, Nichols Machinery Company, 629 S.W.2d 142, 143-144 (Tex.Civ.App.--Dallas 1982, writ ref'd, n.r.e.). Similarly, a party is entitled to fair notice of the pleadings upon which a judgment is rendered against him, and this rule is applicable in favor of a defendant against whom a post-answer default judgment is rendered. Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979). In our case, the record does not show that defendants did not have due notice of the trial setting, and it does not show they did not have...
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