Long v. McDermott

813 S.W.2d 622, 1991 Tex. App. LEXIS 1679, 1991 WL 122860

• Court: Court of Appeals of Texas
• Decided: July 5, 1991
• Docket: 01-90-00467-CV
• Status: Published

Opinions

OPINION

MIRABAL, Justice.

This is an appeal by writ of error from a default judgment.

This lawsuit arises out of an automobile collision that occurred on February 7, 1989, on U.S. Highway 290. McDermott sued Long for negligence and gross negligence, and upon Long’s failure to file an answer, McDermott obtained a default judgment in the principal amount of $6,852.22, representing $6,452.22 for collision damage to McDermott’s vehicle, and $400 for loss of use of the vehicle. We affirm.

McDermott’s pleadings in the trial court incorrectly listed Long’s address as “6800 Hollister, No. 2702” rather than “5800 Hol-lister, No. 2702.” The original petition and citation were served on defendant Long on October 18, 1989, notwithstanding the single-digit typographical error in his address. The constable’s return states that there is no such address as “6800 Hollister,” and that Long was served at “5800 Hollister, No. 2702.” On appeal, Long does not challenge the propriety of service of process.

Long did not answer McDermott’s lawsuit, and McDermott moved for default judgment. The motion for default judgment was set for hearing November 16, 1989, and default judgment was granted November 16, 1989. McDermott’s motion for default judgment contains a certificate of service on Long by certified mail; the certificate of service repeats the typographical error. McDermott also filed a certificate of last known address that repeated the error. The crux of Long’s complaint on appeal is that it is clear on the face of the record that both the motion for default judgment and the notice of entry of default judgment were sent to the wrong address, and that he therefore did not receive due notice.

The elements necessary for appellate review by writ of error are: (1) the petition for writ of error must be filed in the trial court within six months of the date of the final judgment, (2) the petitioner for writ of error must be a party to the action who did not participate in the actual trial of the case, and (3) the error must be apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985); Brown v. McLennan County Children’s Protective Servs., 627 S.W.2d 390, 392 (Tex.1982); Tex.R.App.P. 45. Here, the first two elements are met; the issue on this appeal is whether reversible error appears on the face of the record.

In point of error one, Long complains that the trial court erred in granting default judgment against him because no notice of the court’s intention to call this case for trial or to hold a hearing on the motion for default judgment was ever sent to or received by Long or his attorneys as required by rules 239, 239a, and 21a of Tex.R.Civ.P.

After a citation and petition are served on a defendant, the plaintiff has no legal duty to notify the defendant before taking a default judgment on the causes of action asserted in the served petition. The rules do not require separate notice of the hearing on unliquidated damages. K-Mart Apparel Fashion Corp. v. Ramsey, 695 S.W.2d 243, 246 (Tex.App.—Houston [1st Dist.] 1985, writ ref d n.r.e.). Other Texas courts of appeals agree with our disposition of this issue. See Daylin, Inc. v. Juarez, 766 S.W.2d 347, 351 (Tex.App.—El Paso 1989, writ denied); Olivares v. Cauthom, 717 S.W.2d 431, 434 (San Antonio 1986, writ dism’d); Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394, 397 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.). We disagree with the dissent’s assertion that Peralta¹ and Lopez² require a different result.

We overrule point of error one.

In point of error two, Long complains that the trial court erred in granting McDermott’s motion for default judgment and entering judgment against Long because no notice of the signing of the order was ever sent to him as required by Tex.R.Civ.P. 239a.³

In point of error three, Long complains that the trial court erred in not giving him notice that an order granting McDermott’s motion for default judgment had been signed on November 16, 1989.

A party’s failure to comply with the certificate and notice provisions of Rule 239a does not constitute reversible error in an appeal by writ of error. Bloom v. Bloom, 767 S.W.2d 463, 468 (Tex.App.—San Antonio 1989, writ denied). The purpose of Rule 239a is to afford a defendant notice of the default judgment which has been rendered against him so that he can timely file a motion for new trial or an appeal. It is designed as an administrative convenience for the parties, and the failure to file a certificate of last known address, or to give notice of the entry of default judgment, does not constitute reversible error. City of Houston v. Amey, 680 S.W.2d 867, 873 (Tex.App.—Houston [1st Dist.] 1984, no writ); Bloom, 767 S.W.2d at 468; Buddy L., Inc. v. General Trailer Co., 672 S.W.2d 541, 543 (Tex.App.—Dallas 1984, writ ref’d n.r.e.); Grayson Fire Extinguisher Co. v. Jackson, 566 S.W.2d 321, 322 (Tex.Civ.App.—Dallas 1978, writ ref’d n.r.e.). Essentially, appellant is seeking to reverse a judgment valid on the face of the record because of something occurring after the judgment was rendered. Appellant cannot succeed with this argument in a writ of error appeal.⁴

We overrule appellant’s points of error two and three.

We affirm the judgment.

O’CONNOR, J., dissents.

1 . Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988).

2 . Lopez v. Lopez, 757 S.W.2d 721 (Tex.1988).

3 . Tex.R.Civ.P. 239a provides:

At or immediately prior to the time an interlocutory or final default judgment is rendered, the party taking the same or his attorney shall certify to the clerk in writing the last known mailing address of the party against whom the judgment is taken, which certificate shall be filed among the papers in the cause. Immediately upon the signing of the judgment, the clerk shall mail written notice thereof to the party against whom the judgment was rendered at the address shown in the certificate, and note the fact of such mailing on the docket. The notice shall state the number and style of the case, the parties in whose favor and against whom the judgment was rendered, and the date of the signing of the judgment. Failure to comply with the provisions of this rule shall not affect the finality of the judgment.

4 . We note that the failure to provide notice of a default judgment under rule 239a can be properly attacked by filing a bill of review in the trial court, setting up lack of notice as one of the grounds. Bloom, 767 S.W.2d at 468; Gray-son, 566 S.W.2d at 323 ("failure of the clerk to send the [rule 239a] notice would be highly important circumstance which would afford ground for relief from the judgment if the defendant is able to establish that he has a meritorious defense”).