Opinion
No. 14-05-00123-CV
Memorandum Opinion filed February 2, 2006.
On Appeal from 257th District Court, Harris County, Texas, Trial Court Cause No. 04-01082.
Reversed and Remanded.
Panel consists of Justices FOWLER, EDELMAN and GUZMAN.
MEMORANDUM OPINION
In this restricted appeal, Joe Brent Halm appeals a divorce decree entered by default in favor of Tamara Gay Halm on the ground that he filed an answer before the judgment was entered. We reverse and remand.
See TEX. R. APP. P. 30.
To prevail on a restricted appeal, Halm 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 lawsuit; (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. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). With regard to the first three requirements: (1) Halm filed his notice of restricted appeal on January 27, 2005, less than six months after the default judgment was entered on November 30, 2004; (2) Halm was a party to the underlying divorce; and (3) the record does not reflect that he participated in the hearing or filed a post-judgment motion, request for findings of fact, or a timely notice of appeal. See Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). As to the fourth requirement, where a default judgment is rendered after a defendant has filed an answer, there is error on the face of the record. See TEX. R. CIV. P. 239; Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam). Because the record indicates that Halm filed his answer on November 29, 2004, the day before the default judgment hearing was held, and the judgment of divorce entered, on November 30, 2004, error is apparent on the face of the record. Accordingly, Halm's sole issue is sustained, the judgment of the trial court is reversed, and the case is remanded to the trial court.
Filing an answer before a default judgment is rendered precludes the default even if the answer is untimely and the trial court is not aware it has been filed. See Davis, 764 S.W.2d at 560.