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Owens v. Sumola Inv.

Court of Appeals of Texas, Fifth District, Dallas
Nov 12, 2008
No. 05-07-01455-CV (Tex. App. Nov. 12, 2008)

Opinion

No. 05-07-01455-CV

Opinion Filed November 12, 2008.

On Appeal from the 336th Judicial District Court Grayson County, Texas, Trial Court Cause No. 07-1267-336.

Before Justices WRIGHT, LANG-MIERS, and MAZZANT.


MEMORANDUM OPINION


In this restricted appeal, Eugene Owens appeals from a default judgment. In a single issue, Owens contends the trial court erred in rendering a default judgment because he had timely filed a pro se answer. We sustain Owens's issue. We reverse the trial court's judgment and remand this case to the trial court.

A party who does not participate in the hearing that resulted in the judgment, timely file a post-judgment motion, request findings of fact and conclusions of law, or file a notice of regular appeal, may bring a restricted appeal by filing a notice of appeal within six months of the judgment. Tex. R. App. P. 26.1(c); Allodial Ltd. P'Ship v. Susan Barilich, P.C., 184 S.W.3d 405, 407 (Tex.App.-Dallas 2006, no pet.). In a restricted appeal, our review is limited to error that appears on the face of the record. Fid. Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. 2006). A plaintiff may obtain a default judgment against a defendant who has not previously filed an answer. Tex. R. Civ. P. 239. A no-answer default judgment may not be rendered after the defendant has filed an answer. Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989). The Texas supreme court has held that a letter from a pro se defendant to the district court clerk that confirms receipt of the citation and provides the defendant's current address is sufficient to constitute an answer. Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992).

In this case, Owens sent a handwritten and signed letter to the district court clerk stating, "Please be advised I am employing an attorney for case number 07-1267-336." Owens informed the district court clerk that he was aware of the case filed against him and the case number. The letter also listed his address. We conclude Owens's letter constituted a sufficient answer. See Lippmann, 826 S.W.2d at 138.

We note that Cleantech argues that Owens's answer is defective because it was not verified. See Tex. R. Civ. P. 93(10). This is true. We find no merit to Cleantech's argument, however, that an unverified answer to a suit on sworn account entitles it to a no-answer default judgment. As support, Cleantech cites to a case from this Court. See Nguyen v. Short, How, Frels Heitz, P.C., 108 S.W.3d 558 (Tex.App.-Dallas 2003, pet. denied). In Nguyen, the plaintiff filed a suit on a sworn account. The defendant filed an unverified answer. The trial court granted summary judgment. This Court affirmed holding that the defendant's failure to file a verified denial resulted in the sworn account being received as prima facie evidence of the debt. Id. at 562. Nguyen does not support Cleantech's argument that failure to file an unverified answer to a suit on a sworn account entitles the plaintiff to a no-answer default judgment.

Cleantech filed its lawsuit on July 10, 2007. Owens timely filed an answer on August 13, 2007. The following day, Cleantech filed its motion for a default judgment seeking judgment on the ground that Owens had failed to answer the lawsuit. On August 22, 2007, the trial court rendered a default judgment on the belief that Owens "has failed to file an answer within the time allowed by law." Because Owens had timely filed an answer, the trial court erred in rendering a no-answer default judgment against him.

Accordingly, we sustain Owens's issue. We reverse the trial court's judgment and remand this case to the trial court.


Summaries of

Owens v. Sumola Inv.

Court of Appeals of Texas, Fifth District, Dallas
Nov 12, 2008
No. 05-07-01455-CV (Tex. App. Nov. 12, 2008)
Case details for

Owens v. Sumola Inv.

Case Details

Full title:EUGENE OWENS, Appellant v. SUMOLA INVESTMENTS, INC., D/B/A CLEANTECH…

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 12, 2008

Citations

No. 05-07-01455-CV (Tex. App. Nov. 12, 2008)