Illinois National Insurance Co. v. Perez

794 S.W.2d 373, 1990 WL 38026
CourtCourt of Appeals of Texas
DecidedAugust 31, 1990
Docket13-89-238-CV
StatusPublished
Cited by13 cases

This text of 794 S.W.2d 373 (Illinois National Insurance Co. v. Perez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Illinois National Insurance Co. v. Perez, 794 S.W.2d 373, 1990 WL 38026 (Tex. Ct. App. 1990).

Opinions

OPINION

NYE, Chief Justice.

Petitioner, Illinois National Insurance Company, challenges by writ of error the default judgment rendered in favor of respondents, Adriana Perez and daughters. We affirm.

On December 21, 1984, Jose Perez was killed in an industrial accident while working for Everest Minerals Corporation. Petitioner, the workers’ compensation carrier for Everest Minerals Corporation, answered respondent’s claim, paying worker’s compensation death benefits and funeral expenses. On December 12, 1985, respondents filed a wrongful death action against Everest Minerals Corporation, Everest Exploration, Inc., United States Filter Fluid Systems Corporation and U.S.X. Corporation for the death of their husband and father. Petitioner was not named in this third party suit nor did it intervene. Respondents settled and released their third party claims against Everest Minerals Corporation, Everest Exploration, Inc. and United States Filter Fluid Systems Corporation (U.S.X. Corporation, having previously been dismissed as a party defendant, was not a party to the settlement). The trial court entered a judgment including the above-mentioned settlement and releases. As of the date of settlement, petitioner had paid respondents a total of $43,303.00 in worker’s compensation death benefits.

Respondents filed suit against petitioner approximately one month later, January 20, 1989, seeking recovery of attorney’s fees in the amount of one-third of the past and future subrogation benefits under Tex.Rev. Civ.Stat.Ann. art. 8307 § 6a (Vernon Supp. 1990). Petitioner had not responded to respondent’s previous efforts to settle attorney fees on past and future compensation benefits. Concurrently with the filing of this lawsuit, respondents tendered $43,-303.00 into the court’s registry. The petition was served on petitioner’s registered agent for service of process on January 23, 1989. The return was filed on February 1, 1989. Petitioner failed to answer prior to the default judgment hearing on February 15, 1989 and neither appeared nor participated in the hearing.

After hearing testimony from respondents and expert witnesses regarding the issues, the trial court rendered a default judgment against petitioner. The court then allowed respondents to withdraw the $43,303.00 previously tendered into the [375]*375court’s registry as partial satisfaction of the default judgment. The trial court signed the judgment on February 16, 1989.

Approximately six weeks later, petitioner filed a motion for new trial. The motion was untimely because it was filed twelve days after the termination of the trial court’s plenary jurisdiction. See generally, Corro v. Southwestern Bell Media, Inc., 784 S.W.2d 471 (Tex.App.—Corpus Christi, 1989); Willacy County Appraisal Review Board v. South Padre Land Co., 767 S.W.2d 201, 202 (Tex.App.—Corpus Christi 1989, no writ); Tex.R.Civ.P. 306a, 329b(a). Thereafter, petitioner filed this writ of error, asserting four points of error.

To successfully attack a default judgment on appeal by writ of error the petitioner must: (a) file the writ within 6 months after the final judgment is signed; (b) be a party to the lawsuit; (c) have not participated at trial; and (d) show error apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-11 (1961); Barrera v. Barrera, 668 S.W.2d 445, 447 (Tex.App.—Corpus Christi 1984, no writ); Tex.R. App.P. 45. Petitioner filed a timely writ of error, was a party to the lawsuit, and did not participate at trial; therefore, the controlling issue in this case is whether there was error on the face of the record.

Petitioner asserts by its third point of error that the trial court erred in rendering judgment for respondents because such award violated Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a (Vernon Supp.1990). Additionally, by its fourth point of error, petitioner asserts that the trial court erred in allowing respondents to withdraw the $43,303 from the court’s registry.

A writ of error constitutes a direct attack on a default judgment and in order for an appellant to prevail in this type of an appeal, the invalidity of the judgment must be disclosed by the face of the record. Pace Sports, Inc. v. Davis Brothers Publishing Co., Inc., 514 S.W.2d 247 (Tex.1974); Brown v. McLennan County Children’s Protective Services, 627 S.W.2d 390, 392 (Tex.1982); Jefferies v. Davis, 759 S.W.2d 6, 7-8 (Tex.App.—Corpus Christi 1988), writ denied per curiam, 764 S.W.2d 559 (Tex.1989); Jaramillo v. Liberty Mutual Fire Insurance Co., 694 S.W.2d 585, 587 (Tex.App.—Corpus Christi 1985, writ ref’d n.r.e.); Tex.R.App.P. 45. When reviewing a default judgment on writ of error (where all other procedural prerequisites for entering such a default judgment have been met), the appellate court must only be concerned with: (1) the sufficiency of the pleadings to allege a cause of action for (a) which liability may rest and (b) on which damages may be assessed, (if it is a liquidated claim); or (2) the sufficiency of damage evidence presented, (if an unliquidated claim), to support the default judgment rendered by the trial court. First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 645 (Tex.App.—Dallas 1987, no writ); First National Bank of Irving v. Shockley, 663 S.W.2d 685, 688 (Tex.App.—Corpus Christi 1983, no writ); see also, McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex.1965). It is true that if the facts set out in the petition allege a cause of action, a default judgment conclusively establishes the defendant’s liability. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984).

The record here shows that respondent’s pleadings were sufficient to allege the cause of action for which liability and damages might be assessed. By its third and fourth points of error, petitioner improperly raises defenses to its liability, a right which it waived in defaulting, and which does not constitute error on the face of the record. Points of error numbers three and four are overruled.

Petitioner asserts by its first and second points of error that respondents had released their causes of action against petitioner and, therefore, respondents’ recovery is barred by the doctrine of res judica-ta 1 and that such does constitute error on [376]*376the face of the record. Petitioner argues that the settlement and release agreement terms negotiated between Everest and respondents released petitioner because it was an “insurer” of Everest Minerals Corporation. We disagree.

The settlement agreement between respondents and Everest Minerals Corporation and Everest Exploration, Inc.

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794 S.W.2d 373, 1990 WL 38026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-national-insurance-co-v-perez-texapp-1990.