Johnny Lam v. Wichita County

• Court: Court of Appeals of Texas
• Decided: November 13, 2025
• Docket: 07-25-00143-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-25-00143-CV

JOHNNY LAM, APPELLANT

V.

WICHITA COUNTY, APPELLEE

On Appeal from the 78th District Court Wichita County, Texas1 Trial Court No. DC78-TX2020-1421, Honorable Jeff McKnight, Presiding

November 13, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant Johnny Lam2 brings this restricted appeal from a post-answer default

judgment entered against him in a suit by Wichita County to recover delinquent taxes.

We reverse the trial court’s judgment and remand this cause for further proceedings.

1 This cause was originally filed in the Second Court of Appeals and was transferred to this Court

by a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3. 2 Lam is also known as Jonny Lam, Jonny Hai Phuoc Lam, and Hai Lam. BACKGROUND

In July of 2020, Wichita County filed suit against Lam to collect delinquent property

taxes for tax years 2018 and 2019. Lam was personally served and filed a pro se answer.

Wichita County subsequently amended its petition to include additional properties and tax

years. On August 30, 2024, Wichita County’s counsel sent a letter to the trial court

coordinator confirming that the case was set for a non-jury trial on September 18, 2024.

The letter includes a certificate of service indicating that Lam was mailed a copy of the

letter. The case proceeded to a bench trial on September 18. Lam did not appear, either

in person or through counsel. The trial court signed a judgment on September 19 in favor

of Wichita County. On March 17, 2025, Lam filed a notice of restricted appeal.

ANALYSIS

In two related issues, Lam asserts that (1) this case meets the requirements for a

restricted appeal and (2) he should prevail because the error he complains of is apparent

on the face of the record. A restricted appeal is a direct attack on a judgment. Roventini

v. Ocular Scis., Inc., 111 S.W.3d 719, 721 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

To prevail on a restricted appeal, an appellant must establish that (1) he filed notice of

the restricted appeal within six months after the judgment was signed, (2) he was a party

to the underlying suit, (3) he 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. TEX.

R. APP. P. 26.1; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). There

is no dispute that Lam meets the first three requirements; therefore, the only issue on

2 appeal is whether error is apparent on the face of the record. For purposes of a restricted

appeal, the face of the record consists of the reporter’s record and all the papers in the

clerk’s record filed prior to final judgment. Davenport v. Scheble, 201 S.W.3d 188, 193

(Tex. App.—Dallas 2006, pet. denied) (citing Norman Commc’ns v. Tex. Eastman Co.,

955 S.W.2d 269, 270 (Tex. 1997) and Armstrong v. Benavides, 180 S.W.3d 359, 362

(Tex. App.—Dallas 2005, no pet.)).

Lam asserts that he was not given proper notice of the trial setting as required by

Texas Rule of Civil Procedure 245. See TEX. R. CIV. P. 245 (requiring “reasonable notice

of not less than forty-five days to the parties of a first setting for trial” in contested cases).

He asserts that “[n]o evidence exists on the face of the record that [he] was ever sent or

ever received a 45[-]day notice of final hearing.” If a respondent does not have notice of

the trial setting as required by Rule 245, a default judgment taken against the respondent

is ineffectual and should be set aside. Platt v. Platt, 991 S.W.2d 481, 484 (Tex. App.—

Tyler 1999, no pet.).

We presume that the trial court will hear a case only when proper notice has been

given to the parties. Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth

2003, no pet.). Thus, we begin with the presumption that Lam had proper notice of the

trial setting. Felt v. Comerica Bank, 401 S.W.3d 802, 806 (Tex. App.—Houston [14th

Dist.] 2013, no pet.). To rebut this presumption, Lam must affirmatively show a lack of

such notice. Id.

The rules of procedure do not impose a duty on the trial court or its personnel to

include documentary evidence in the record that notice of a trial setting was given. Garcia

3 v. Arbor Green Owners Ass’n, 838 S.W.2d 800, 803 (Tex. App.—Houston [1st Dist.] 1992,

writ denied). Consequently, if the record is silent as to whether notice of a trial setting

was given, no error appears on the face of the record. Id. However, if a judgment is

effectively rebutted by other evidence in the record, this presumption of proper notice is

no longer taken as true. Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston

[1st Dist.] 1997, pet. denied).

Wichita County contends that there is no error on the face of the record because

the record is silent concerning when the trial court provided notice of trial. We disagree.

Although the record need not affirmatively demonstrate compliance with Rule 245, we

apply the presumption of regularity only when the record is silent or ambiguous and, even

then, only to reasonable presumptions. See Diamond Offshore Servs. v. Williams, 542

S.W.3d 539, 545 (Tex. 2018) (in context of exclusion of evidence). The record before us

is not silent regarding notice, but rather, indicates that Lam was given notice of the

September 18 setting on August 30. At the hearing on September 18, Wichita County’s

counsel introduced “Exhibit 1, which is notice to those defendants that were personally

served of today’s hearing date and time . . . .” Exhibit 1 is the August 30 letter Wichita

County’s counsel sent to Lam notifying him of the September 18 setting. No reference to

any other notice was made at the hearing or in this appeal.

The face of the record before us establishes that notice to Lam was sent by Wichita

County’s counsel on August 30, less than 45 days before trial. Accordingly, we conclude

that the trial court’s default judgment was rendered in the absence of proper notice to

Lam. See Turner v. Johnson, No. 14-23-00238-CV, 2024 Tex. App. LEXIS 3023, at *4–

6 (Tex. App.—Houston [14th Dist.] May 2, 2024, no pet.) (mem. op.) (appellant 4 demonstrated error on face of record concerning notice where record included notice of

trial setting filed one day before trial); Hildebrand v. Hildebrand, No. 01-18-00933-CV,

2020 Tex. App. LEXIS 5576, at *10–11 (Tex. App.—Houston [1st Dist.] July 21, 2020, no

pet.) (mem. op.) (where party resisting divorce was afforded only 39 days’ notice before

final hearing, court reversed and remanded); Blanco v. Bolanos, 20 S.W.3d 809, 811–12

(Tex. App.—El Paso 2000, no pet.) (presumption of proper notice rebutted where

appellant could not have received 45 days’ notice because record showed appellee had

filed trial setting request only 15 days prior to final hearing).

CONCLUSION

Having sustained Lam’s issues on appeal, we reverse the trial court’s default

judgment and remand the cause to the trial court for further proceedings consistent with

this opinion.

Judy C. Parker Justice