Opinion
No. 01-10-00297-CV
Opinion issued June 2, 2011.
On Appeal from the 308th District Court, Harris County, Texas, Trial Court Case No. 2008-03717.
Panel consists of Chief Justice RADACK and Justices SHARP and BROWN.
MEMORANDUM OPINION
John Dewitt Duggan brings this restricted appeal to set aside the trial court's default final decree of divorce. The trial court rendered the final decree of divorce requested by his wife, Karen Anne Carsey, after Duggan failed to appear for trial. Duggan contends there is error on the face of the record because he did not receive the required notice of the trial setting, the trial court granted more relief than Carsey requested in her petition, and the evidence from the default judgment hearing is insufficient to support the trial court's judgment. We conclude that the trial court did not provide Duggan with the required 45 days' notice of the trial setting.
We reverse and remand for further proceedings.
Background
Carsey filed a petition for divorce on January 18, 2008. Duggan responded by filing a hand-written letter to the trial court on February 25, 2008. In the letter Duggan stated:
I am writing to you in the matter of . . . the marriage of Karen Anne Carsey and John Dewitt Duggan case no. 2008-03717. I wish to contest this divorce and I want nothing decided or finalized in this matter. I will completely discharge my sentence and will be released in August of this year. I want nothing done in this matter until I can retain legal coun[se]l and I can be present.
In another hand-written letter filed March 13, 2008, Duggan again requested that the trial court not consider the divorce before Duggan was released in August and could be present. He also asked that the trial court notify him of "any further court dates, discussions, or temporary orders."
On August 17, 2009, the trial court sua sponte dismissed the case for want of prosecution. Carsey filed a motion to reinstate the case and the trial court granted the motion on September 9, 2009. The order reinstating the divorce action included a hand-written note that trial was set for October 12, 2009 — 33 days from the date the court signed the order reinstating the case. The docket entry for September 9 also notes that the case was reinstated and final trial set for October 12.
Duggan did not appear for trial on October 12, 2009. After stating that it would consider Duggan's letter to constitute an answer, the trial court stated it would "proceed with a default." The only witness at the trial was Carsey. The trial court rendered a default final decree of divorce that same day.
The next day, October 13, the trial court clerk filed a letter from Duggan. The letter is dated October 2, 2009 and in it Duggan informed the court:
Today I received notice of trial. The trial is set for October 12, 2009 at 9:00 a.m. I am currently incarcerated in the Harris County Jail, 1200 Baker St, and I am concerned as to whether or not I will be taken to the trial. I pray the court will do what it takes to see that I am there. I do not have an attorney nor do I have a way to get one at this time.
The letter also states that Duggan was "not contesting the divorce" rather he wanted "to assure the property is split and divided equally."
Restricted Appeal
To prevail on a restricted appeal, a defendant must establish that (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The record conclusively establishes that Duggan filed this appeal within six months of the judgment and that he was a party to the underlying lawsuit. The only requirements at issue are whether Duggan filed a post-judgment motion or request for findings of fact and conclusions of law and whether any error appears on the face of the record.
A. Post-Judgment Filings
Rule 30 of the Texas Rules of Appellate Procedure provides, in pertinent part, that a restricted appeal may be taken if a party "did not timely file a post-judgment motion or request for finding of fact or conclusions of law." TEX. R. APP. P. 30. A motion for new trial or to modify, correct, or reform a judgment is due within 30 days after the judgment is signed. TEX. R. CIV. P 329b(1). A request for findings of fact and conclusions of law is due within 20 days after the judgment is signed. TEX. R. CIV. P. 296.
The trial court rendered judgment in this case on October 12, 2009. Thus, a timely request for findings of fact and conclusions of law was due by November 1, 2009; a timely motion for new trial by November 11. There is no request for findings of fact or conclusions of law in the record. The record does contain, however, several hand-written letters from Duggan challenging the trial court's default decree of divorce. The earliest filed-stamped date on any of the letters is February 18, 2010, more than 30 days after the trial court's October 12 decree. The record contains two handwritten documents without file-stamps entitled "Motion for Extension of Time to Appeal Default Divorce" and "Motion to Overturn Default Divorce." However, the motion for extension of time contains the statement from Duggan that he first learned of the October 12, 2009 default judgment on January 25, 2010. This is well after the time in which Duggan could have filed a motion for new trial or other post-judgment motion. Accordingly, we conclude the record shows that Duggan did not timely file a post-judgment motion or request for findings of fact and conclusions of law.
B. Error on the Face of the Record
The "face of the record" means the papers on file with the trial court when it rendered judgment. Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.-Fort Worth 2003, no pet.) (citing Gen. Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 944 (Tex. 1991)). Therefore, on appeal we may not consider evidence that was not before the trial court when it rendered judgment. Id. (citing Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 794 (Tex. App.-Houston [1st Dist.] 1999, no pet.)).
Duggan raises several grounds to show error on the face of the record. We address his contention that the trial court erred by rendering a default final decree of divorce without giving him the required amount of notice.
1. Duggan's Appearance
Generally, a plaintiff may take a default judgment against a defendant who fails to file an answer. See TEX. R. CIV. P. 239; Rojas v. Scharnberg, No. 01-09-01039-CV, 2011 WL 941616, at *2 (Tex. App.-Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.). A defendant who fails to answer or appear is not entitled to notice of a hearing on the motion for default judgment. Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.-Houston [1st Dist.] 2004, pet. denied). A defendant who appears in the case, however, is entitled under the due process clause to notice of a trial on the merits or a hearing on a motion for default judgment. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989); In re Marriage of Runberg, 159 S.W.3d 194, 197 (Tex. App.-Amarillo 2005, no pet.) (holding that husband's appearance in divorce suit entitled him to notice of final hearing). "A defendant who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant's current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings." Guadalupe Econ. Servs. Corp. v. Dehoyos, 183 S.W.3d 712, 716-17 (Tex. App.-Austin 2005, no pet.) (citing Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (per curiam)).
Duggan filed a signed, hand-written letter with the trial court on February 25, 2008 identifying the case number and the parties, and stating that he wished to contest the divorce. Duggan's current address appears on the attached envelope and he listed his prisoner ID number within the body of the letter. At the default hearing, the trial court stated, "Okay. I guess it can be considered an answer." Because Duggan satisfied the requirements for a pro se answer and the record shows the trial court treated his letter as an answer, we conclude Duggan was entitled to notice of the trial setting. See id. (holding pro se letter constituted answer even though it did not identify case number or all defendants because letter substantially complied with pro se answer standard).
2. Failure to Provide 45 Days' Notice
Texas Rule of Civil Procedure 245 requires that parties in a contested case be given no less than 45 days' notice of the first trial setting. See TEX. R. CIV. P. 245. The failure to provide the defendant with the required notice of the first trial setting in a contested case deprives the defendant of his constitutional right to be present and to voice his objections in an appropriate manner. LBL Oil, 777 S.W.2d at 390-91; Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex. App.-Dallas 1998, no pet.). "A fundamental element of due process is adequate and reasonable notice of proceedings." Murphree v. Ziegelmair, 937 S.W.2d 493, 495 (Tex. App.-Houston [1st Dist.] 1995, no writ) (quoting Green v. McAdams, 857 S.W.2d 816, 819 (Tex. App.-Houston [1st Dist.] 1993, no writ)). The requirement that a defendant receive notice of a trial setting applies to a hearing on a default judgment because it constitutes a "trial setting" dispositive of the case. Bradford, 971 S.W.2d at 597; Murphree, 937 S.W.2d at 495.
If the defendant does not have notice of the trial setting as required by Rule 245, the default judgment should be set aside. Blanco v. Bolanos, 20 S.W.3d 809, 811-12 (Tex. App.-El Paso 2000, no pet.) (holding default judgment improper because defendant did not receive 45 days' notice of final trial as required by Rule 245). Because we presume a trial court will hear a case only after notice has been given to the parties, the defendant bears the burden to "affirmatively show lack of notice." Campsey, 111 S.W.3d at 771; Blanco, 20 S.W.3d at 811-12.
The trial court signed an order on September 9, 2009 reinstating the case on the docket and a handwritten note on the order states that final trial was set for October 12, 2009. A corresponding docket entry for September 9 also notes that the case was reinstated with final trial set for October 12. The record demonstrates that, at most, Duggan would have received 33 days' notice of the final trial setting on the merits instead of 45 days as required by Rule 245. See TEX. R. CIV. P. 245. Duggan, therefore, did not receive the required notice and the default judgment was granted in violation of Duggan's due process rights. See Rojas, 2011 WL 941616, at *4.
Because error is apparent on the face of the record based on the failure to give proper notice, we need not consider the remaining grounds raised as error. See TEX. R. APP. P. 47.1. We sustain Duggan's sole issue
Conclusion
We reverse the default judgment and remand this cause for further proceedings. All outstanding motions are denied as moot.