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considering oral pronouncement at hearing occurring after dismissal order was entered when determining if there was error on face of record
Summary of this case from ID/Guerra LP v. Texas Workforce CommissionOpinion
No. 05-06-00113-CV
Opinion Filed April 3, 2007.
On Appeal from the County Court at Law No. 4 Dallas County, Texas, Trial Court Cause No. CC-04-14170-D.
Before Justices FITZGARALD, RICHTER, and FRANCIS.
MEMORANDUM OPINION
In this restricted appeal, appellant John W. Martin seeks the reversal of the trial court's June 3, 2005 no answer default judgment. In two issues, Martin asserts (1) error is apparent on the face of the record because he timely filed an answer; therefore, default judgment was inappropriate, and (2) the trial court lacked authority to enter a default judgment because the lawsuit was dismissed for want of prosecution, and the record contains no signed order of reinstatement. Appellee Kadiwala did not file a response brief. We vacate the trial court's default judgment and dismiss the case.
On or about February 9, 2004 Kadiwala and Martin entered into a construction agreement in which Kadiwala agreed to pay three payments of $46,499.66 at the start of the project, midway through the project, and then upon completion of the project. On December 8, 2004, Kadiwala filed suit against Martin alleging deceptive trade practices, common law fraud, and breach of contract based on the construction agreement. Kadiwala claimed it fulfilled its contract obligations, including but not limited to payment of all progress payments.
On December 21, 2004, Martin wrote a letter to the court explaining Kadiwala filed suit against the wrong entity, it failed to pay according to the contract, and it refused to sign any change orders for additional work. After no further action occurred in the case, the trial court entered a dismissal order on March 22, 2005. Kadiwala filed a motion to reinstate on April 15, 2005.
On June 3, 2005, the trial court orally reinstated the case and conducted a default judgment hearing because Kadiwala believed Martin had not filed an answer. The trial court granted Kadiwala's no answer default judgment. Because Martin did not participate in the hearing resulting in the default judgment, he filed this restricted appeal.
In a restricted appeal, a party who did not participate at the hearing may appeal. Tex. R. App. P. 30. The requirements of a restricted appeal are (1) a notice of appeal must be filed within six months of the date of the judgment (2) by a party to the suit (3) who did not participate at trial and did not timely file a postjudgment motion or request for findings of fact and conclusions of law, and (4) the error complained of is apparent from the face of the record. Id.; Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex.App.-Dallas 2004, no pet.).
Here, Martin meets the first three requirements for a restricted appeal: (1) he is a party to the suit (2) who filed a notice of restricted appeal on November 2, 2005, which is within six months of the trial court's default judgment, and (3) he failed to appear at the default judgment hearing. The issue facing us is whether Martin has established error on the face of the record. In his second issue, Martin asserts the trial court lacked plenary power to enter a default judgment because the cause of action was dismissed for want of prosecution and never properly reinstated to the docket. On March 22, 2005, the trial court entered an order of dismissal for failure to prosecute. On April 15, 2005, Kadiwala filed a motion to reinstate. The trial court's docket sheet notes that the motion to reinstate was set for June 3, 2005 at 10:30 a.m. On June 3, the trial court held a hearing for the default judgment and began the hearing by stating "the case is reinstated." It then proceeded with the default prove up. The trial court neither included any statement about reinstating the case in the written default judgment or in any separate written order.
Although Martin filed a motion for new trial on July 18, 2005, his motion was not timely filed as required by Texas Rule of Appellate Procedure 30. Tex. R. App. P. 30 ("A party who did not participate . . . and who did not timely file a postjudgment motion . . . may file a notice of appeal within the time permitted by Rule 26.1(c)."). Thus, this motion does not affect his ability to file a restricted appeal.
Here, the trial court needed to properly reinstate the case prior to entering a default judgment. An order of reinstatement must be in writing and signed during the trial court's plenary power and jurisdiction. Emerald Oaks Hotel/Conference Ctr., Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex. 1989). The trial court's oral pronouncement of reinstatement and a docket entry is not an acceptable substitution for the written order required by rule 165a(3). Id. Rule 165a(3) provides that a motion to reinstate is overruled by operation of law if for any reason it is not decided "by a signed written order within seventy-five days after the judgment is signed." Tex. R. Civ. P. 165a(3); In re WalMart Stores, Inc., 20 S.W.3d 734, 740 (Tex.App.-El Paso 2000) (orig. proceeding) (holding oral ruling is ineffectual to reinstate case). Thereafter, the court retains plenary power and jurisdiction over the cause to reinstate it for an additional thirty days. Id.
Here, because no written order of reinstatement was signed during the 105-day period, the motion was overruled by operation of law, and the dismissal became final on July 5, 2005. Therefore, because the trial court never reinstated the case, it had no authority to enter a default judgment. But see A J Printing, Inc. v. DSP Enter., L.L.C., 153 S.W.3d 676, 680 (Tex.App.-Dallas 2004, no pet.) (holding trial court had jurisdiction to deny special appearance after case had been dismissed because motion for reinstatement was on file prior to court's denial of special appearance and case was timely reinstated by a written order within the court's plenary power). This establishes error on the face of the record for a restricted appeal.
Because the trial court never properly reinstated the case, we conclude the trial court had no authority to enter the default judgment, which is void. Therefore, the March 22, 2005 dismissal order remains in effect. Thus, we sustain Martin's second issue, vacate the default judgment, and dismiss the case. Tex. R. App. P. 43.2(e).
Because the default judgment is vacated, we need not address Martin's first issue.