Opinion
No. 05-04-00220-CV
Opinion Filed June 10, 2005.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-02-3751-c.
Reverse and Remand.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
In this restricted appeal, Raed Al-Khatib appeals the default judgment rendered against him in favor of Oblio Telecom, Inc. In two issues, Al-Khatib contends the trial court erred in granting a no answer default judgment against him because (1) he timely filed an answer and, (2) because he did not get notice of a dispositive hearing resulting in a final judgment being rendered against him. Because error is apparent on the face of the record, we reverse and remand this case as to Al-Khatib to the trial court for further proceedings.
I. Factual Background
Oblio sued Al-Khatib and two other defendants Orion Telecom, Inc. and Khaled Abu-Kaff, on several causes of action regarding the sale of phone cards. Al-Khatib filed an answer on June 14, 2002. Oblio filed an amended original petition and a motion for default judgment as to Al-Khatib and Orion Telecom, Inc. On March 14, 2003, an interlocutory no-answer default judgment was entered against Al-Khatib and Orion Telecom, Inc. Subsequently, the case was set for trial as to the third defendant, Khaled Abu-Kaff, on May 14, 2003. However, Abu-Kaff failed to appear for trial, and a final judgment as to all three defendants, including Al-Khatib, was issued on May 14, 2003. Al-Khatib filed his restricted appeal within six months of the date of final judgment.
II. Restricted Appeal
To succeed on a restricted appeal, Al-Khatib 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 postjudgment 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).
III. Jurisdiction
In this case, Oblio disputes that Al-Khatib's notice of restricted appeal was timely filed and questions whether this Court has jurisdiction to consider this appeal. Oblio incorrectly asserts that the counting of the six months began with the signing of the March 14, 2003 interlocutory default judgment and that, therefore, Al-Khatib's November 14, 2003 notice of restricted appeal is untimely. The March 14, 2003 interlocutory default judgment did not become an appealable judgment until it was merged into the final judgment which the trial court rendered on May 14, 2003, disposing of the whole case. Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex. 1972). Al-Khatib correctly gave notice of restricted appeal within six months of the date of the May 14, 2003 final judgment. Id. at 409. Finding that this Court does have jurisdiction, we now turn to the merits of appellant's appeal.
IV. Error on the Face of the Record
In his first issue, Al-Khatib contends the trial court erred in granting the default judgment after he filed an answer. We agree. A default judgment may not be rendered after the defendant has filed an answer. Tex. R. Civ. P. 239; Padrino Maritime, Inc v. Rizo, 130 S.W.3d 243, 246 (Tex.App.-Corpus Christi 2004, no pet.) (citing Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam)). To enter a default judgment after a defendant has filed an answer is reversible error. Padrino Maritime, Inc., 130 S.W.3d at 246 (citing Jefferies v. Davis, 759 S.W.2d 6 (Tex.App.-Corpus Christi 1988), writ denied, 764 S.W.2d 559 (Tex. 1989) (per curiam)). Al-Khatib's answer appears in the record. Oblio concedes that Al-Khatib filed an answer and that the March 14, 2003 interlocutory default judgment was mistakenly entered against Khatib. Therefore, there is reversible error on the face of the record.
We sustain appellant's first issue.
V. Conclusion
Finding error on the face of the record, we reverse the May 14, 2003 final judgment against Raed Al-Khatib and remand the claims against him to the trial court for further proceedings. Because of our dispostion of appellant's first issue, we need not discuss Al-Khatib's second issue regarding lack of notice to him.