Opinion
No. 05-03-00994-CV.
May 17, 2004.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-02-13432-c.
Affirmed.
Before Justices JAMES, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Tin Top Corporation appeals the trial court's default judgment in favor of Hester's Wrecker Service, Inc. In a single point of error, Tin Top argues the trial court erred in entering a default judgment because the allegations in Hester's petition were contradicted by the evidence attached to the petition. We affirm the trial court's judgment.
On November 7, 2002, Hester's filed its original petition seeking payment of $9292.13 for towing services it had provided to Tin Top. Attached to the petition were two invoices, one for $5790.13 in the name of "1865 Transportation" and one for $3502 with the notation "Tin Top" in the upper right-hand corner. On January 2, 2003, Hester's filed a motion for default judgment alleging that Tin Top had failed to file an answer. Attached to the motion for default judgment was a single invoice for $5790.13 showing services provided to Tin Top. On January 6, 2003, the trial court entered a default judgment against Tin Top in the amount of $9292.13, the total of both invoices attached to the petition. However, Hester's subsequently filed a motion for judgment nunc pro tunc stating the actual amount of damages was $5790.13, not $9292.13. Accordingly, Hester's asked the trial court to modify its judgment to award damages in the amount of $5790.13, the amount of the Tin Top invoice. On January 24, 2003, the trial court entered a default judgment nunc pro tunc reflecting an award of $5790.13. This appeal followed.
In a single point of error, Tin Top argues the trial court erred in granting a default judgment against it because the allegations in Hester's petition were contradicted by the evidence attached. Specifically, Tin Top complains Hester's petition stated a claim against Tin Top, but the $5790.13 invoice attached to the petition named "1865 Transportation." Because no evidence exists establishing a relationship between Tin Top and "1865 Transportation," Tin Top argues the disharmony between the petition and the invoice should result in the overturning of the underlying default judgment.
Under Texas Rules of Appellate Procedure 26.1(c) and 30, four elements are required for a successful restricted appeal from a default judgment: (1) a notice of restricted appeal must be filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment of which the party complains and did not file a timely post-judgment motion; and (4) error must be apparent on the face of the record. Tex.R.App.P. 26.1(c), 30; Vespa v. Nat'l Health Ins. Co., 98 S.W.3d 749, 751 (Tex. App.-Fort Worth 2003, no pet.). While a petition which serves as the basis for a default judgment may be subject to special exceptions, the default judgment will be held erroneous only if (1) the petition (or other pleading of the non-defaulting party that seeks affirmative relief) does not attempt to state a cause of action that is within the jurisdiction of the court, or (2) the petition (or pleading for affirmative relief) does not give fair notice to the defendant of the claim asserted, or (3) the petition affirmatively discloses the invalidity of such claim. Paramount Pipe Supply Co. v. Muhr, 749 S.W.2d 491, 494 (Tex. 1988).
Here, Tin Top filed its notice of appeal within six months of the judgment, it was a party to the underlying lawsuit, and it is undisputed that it did not participate in the underlying lawsuit. Thus, the issue is whether error is apparent on the face of the record. See Vespa, 98 S.W.3d at 751. As Tin Top points out, attached to Hester's original petition was an invoice naming "1865 Transportation," not Tin Top. However, Hester's petition alleged that Tin Top requested towing services from Hester's in June 2002, Hester's rendered those services, but Tin Top refused to pay for the services after Hester's demanded payment. Attached to Hester's motion for default judgment was an invoice in the amount of $5790.13 naming Tin Top. We conclude these pleadings were sufficient to provide fair notice to Tin Top that Hester's sought payment of the $5790.13 due for services rendered, and the pleadings do not affirmatively disclose the invalidity of that claim. See Paramount, 749 S.W.2d at 494. Under these circumstances, we do not find error apparent on the face of the record. See Vespa, 98 S.W.3d at 751. We overrule appellant's single point of error.
We affirm the trial court's judgment.