Opinion
No. 10-05-00263-CV
Opinion delivered and filed August 30, 2006.
Appeal from the 13th District Court, Navarro County, Texas, Trial Court No. 04-00-13572-CV.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs only in the judgment of the court)
MEMORANDUM OPINION
Chuck Carlson brings this restricted appeal from a default judgment which grants the City of Eureka a permanent injunction and sanctions against Carlson for operating Whitecapp Marine in violation of several municipal ordinances. Carlson contends in three issues that: (1) the court abused its discretion by striking his answer and rendering a default judgment without giving him an opportunity to amend; (2) the City offered no evidence at trial to support a judgment for damages in the amount of $1,000 per day for violation of the ordinances; and (3) the court erred by rendering a judgment nunc pro tunc awarding these damages because the court's plenary power had expired and the omission of this damages award in the original judgment was not a clerical error. We will reverse and remand.
Background
The City filed its original petition on July 23, 2004. The sheriff's return indicates that Carlson was served on July 30. The following letter was faxed to the district clerk twenty-four days later:
IN Reference to NO. 04-00-13572-CV
CITY OF EUREKA Plaintiff,
V.
CHUCK CARLSON, Individually And d/b/a Whitecapp Marine, Clifton Smith and James Compton, Defendants
Written Answer:
Notice to the Plaintiff:
Whitecapp Marine intends to investigate or have investigated what they are in violation of in THE CITY OF EUREKA.
Whitecapp Marine will need to obtain records from THE CITY OF EUREKA of all business who have been fined for installing a business sign before obtaining permits from THE CITY OF EUREKA, and or business that is operating and still operating that only received a letter in the mail requesting the fee amount for having a business sign.
Whitecapp Marine intends to seek information from THE CITY OF EUREKA to find out what is considered outside storage that is not permitted to be there that would be considered hazard to public health and safety.
Whitecapp Marine will seek Legal Counsel to ensure they are being treated equal and fair from THE CITY OF EUREKA and that all the requirements, City Codes, and permits requested by THE CITY OF EUREKA and any board members are enforced same to all business's or residences.
This letter was accompanied by a separate sheet containing credit card information "for fax fee for this written answer." This accompanying sheet identifies the letter as the "written appearance for Whitecapp Marine" and includes the sender's fax number.
Three months after this letter was faxed to the district clerk, the trial court called the matter as "a default judgment case." The court pronounced at the commencement of the hearing, "The defendants have filed something that I guess they purport to be an answer but it does not meet the requirements of the statute and it will be, it will be stricken at this time." The court heard testimony from the city secretary and from the mayor then rendered judgment granting the City a permanent injunction and attorney's fees.
The court signed a judgment three days later. Carlson did not file any post-judgment motions and filed his notice of appeal a little more than four months after the judgment was signed.
Restricted Appeal
To prevail on its restricted appeal, [an appellant] must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it 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).
Sufficiency of Answer
Carlson contends in his first issue that the court abused its discretion by striking his answer and rendering a default judgment without giving him an opportunity to amend.
A trial court errs if it proceeds to trial and renders a default judgment without notice after the defendant has filed an answer. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85-87, 108 S. Ct. 896, 899-900, 99 L. Ed. 2d 75 (1988); LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam); Guadalupe Economic Servs. Corp. v. Dehoyos, 183 S.W.3d 712, 716 (Tex.App.-Austin 2005, no pet.); Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex.App.-San Antonio 1983, no writ).
Traditionally any sort of appearance will defeat a default. Indeed, the courts have gone to great lengths to excuse defects in answers to prevent the entry of default judgments against parties who have made some attempt, albeit deficient, unconventional, or flat out forbidden under the Rules of Civil Procedure, to acknowledge that they have received notice of the lawsuit pending against them.
Hock v. Salaices, 982 S.W.2d 591, 593 (Tex.App.-San Antonio 1998, no pet.) (quoted by Guadalupe Economic Servs., 183 S.W.3d at 715 n. 4).
Courts have generally required that a pleading meet two basic requirements before it will be construed as an answer sufficient to avoid a default judgment. First, the pleading should contain some information acknowledging the pendency of the suit and responding in some fashion to the plaintiff's petition. E.g., Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992) (per curiam); Guadalupe Economic Servs., 183 S.W.3d at 716-17; Terehkov, 648 S.W.2d at 442-43. Second, the pleading should contain some identifying information such as the defendant's name and address. E.g., Smith, 826 S.W.2d at 138; Guadalupe Economic Servs., 183 S.W.3d at 716.
Here, Carlson's "answer" identifies the style and cause number of the suit and is entitled a "Written Answer." The assertion in the answer that "Whitecapp Marine intends to investigate or have investigated what they are in violation of" is similar to the language of one of the letters under consideration in Terehkov. See 648 S.W.2d at 442 (letter stated in part, "The attached document was delivered to Terrace Laundry and is now under careful investigation.").
By the faxed letter, the defendants "made some attempt, albeit deficient, . . . to acknowledge that they ha[d] received notice of the lawsuit pending against them." See Guadalupe Economic Servs., 183 S.W.3d at 715 n. 4; Hock, 982 S.W.2d at 593.
The City faults Carlson for failing to include a return address in the answer. However, there is nothing in the record to indicate that the City was unable to locate Carlson. In the default judgment hearing, the city secretary testified that Carlson was violating a municipal ordinance by conducting a business in an area zoned for residential property. She testified that "[t]hey are operating a business" at the address indicated in the City's original petition.
Under these circumstances, we hold that Carlson's failure to provide a return address in his answer does not render the answer fatally deficient.
Therefore, because an answer had been filed, the court erred by striking the answer and rendering a default judgment without giving Carlson an opportunity to amend. See Guadalupe Economic Servs. Corp., 183 S.W.3d at 716; KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 898-99 (Tex.App.-Dallas 2003, no pet.); Terehkov v. Cruz, 648 S.W.2d at 442. Accordingly, we sustain Carlson's first issue.
Because we have sustained Carlson's first issue, we need not address the remaining issues. We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.