                          NUMBER 13-12-00407-CV

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

MARIA GABRIELA MORALES,                                               Appellant,

                                        v.

JAMES CLYDE MARQUIS,                                                  Appellee.


                 On appeal from the 332nd District Court
                       of Hidalgo County, Texas.


                       MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      This restricted appeal challenges a post-answer default judgment taken by

appellee, James Clyde Marquis, against appellant, Maria Gabriela Morales, annulling

the marriage between them on the grounds of fraud. See TEX. FAM. CODE ANN. § 6.107

(West 2006). We reverse and remand.
                                             I. BACKGROUND

       Appellee’s original and first amended petitions requested a divorce on the

grounds that the marriage had become unsupportable due to a conflict of personalities.

Appellee requested that the court make a just and right division of the community

estate. Appellant filed a pro se answer that generally denied all of the allegations in

appellee’s petition.

       Appellee filed a second amended petition in which he withdrew the request for a

divorce and instead petitioned the court for an annulment on the grounds of fraud.

Specifically, appellee alleged that appellant married him for the purpose of acquiring

legal residency in the United States.            Appellee further alleged that they had never

consummated the marriage, and that appellee had not voluntarily cohabitated with

appellant since he discovered the fraud. See id.

       Appellee also alleged that the parties did not accumulate community property

during the marriage other than “personal effects.” Appellee asked the court to award

the personal effects as the separate property of each party then in possession, and to

award a house and the parcel of land it sits on to appellee as appellee’s separate

property. The amended petition does not contain a certificate of service, and appellant

asserts on appeal that she never received a copy of it.

       The trial court entered a written order dated November 9, 2011 that set the case

for trial on November 28, nineteen days later.1 At the hearing on November 28, which

was the only oral hearing held in this case, appellant did not appear but appellee



       1
           The order has the name and address of appellee’s attorney and indicates that appellant is pro
se.


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testified briefly.2 After hearing appellee’s testimony, the court immediately granted the

annulment.     The decree of annulment awarded property to the parties as appellee

requested in his amended petition.3 Appellant did not file any post-judgment motions,

but she subsequently filed a timely notice of restricted appeal.

                                             II. DISCUSSION

       To prevail on a restricted appeal, the appellant must establish that: (1) it filed its

notice of 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 post judgment motions or requests

for findings of facts 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); Autozone,

Inc. v. Duenes, 108 S.W.3d 917, 919 (Tex. App.—Corpus Christi 2003, no pet.). The

first three requirements are jurisdictional, and we may not consider the appeal if they

are not met. Clopton v. Park, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001, pet.

denied); see also TEX. R. APP. P. 30. A restricted appeal is a direct attack on the

judgment; the only limitation on the scope of review is that error must be apparent on

the face of the record. Norman Commc’ncs v. Tex. Eastman Co., 955 S.W.2d 269, 270

(Tex. 1997) (per curiam); Autozone, 108 S.W.3d at 919–20. For these purposes, “the

record” constitutes all documents on file with the court of appeals, and all evidence that

was before the trial court. Alexander, 134 S.W.3d at 848–49 (citing General Electric Co.


       2
          The trial court called appellant’s name but no evidence was presented to prove she had notice
of the hearing.
       3
          In contrast to a suit for divorce, a suit for annulment presumes that a valid marriage never
existed. However, this presumption “does not prevent the court from determining issues arising from the
marriage, including . . . division of property.” 39 Tex. Jur. 3d Family Law § 319 (2013).


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v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991)).

Appellee admits that appellant meets the first three requirements for a restricted appeal,

and we agree.        The only question is the fourth prong of the test, whether error is

apparent on the face of the record.

        By three issues, appellant argues that error is apparent on the face of the record

and the post-answer default judgment should be set aside because: (1) she was not

served with the second amended petition and it alleged “a new cause of action and

sought a more onerous judgment;” (2) the evidence is legally and factually insufficient to

support the default judgment; and (3) appellant did not receive the forty-five days’ notice

of the final hearing as required by Rule of Civil Procedure 245. See TEX. R. CIV. P. 245.

We will only address appellant’s third issue because it is dispositive of the case.4 See

TEX. R. APP. P. 47.1.

    A. Compliance with Rule 245

        Appellant argues that the judgment must be set aside because she did not

receive forty-five days’ notice of the trial setting as required by Rule 245. See TEX. R.

CIV. P. 245. Appellee admits that appellant did not receive the full forty-five days’ notice

of trial, but argues that appellant waived this complaint because she did have nineteen

days’ notice of the trial setting and failed to object.

        Rule of Civil Procedure 245 requires that the trial court give all parties to a

contested case “reasonable notice of not less than forty-five days” of the date of the first


        4
          In a restricted appeal of a post-answer default judgment, the remedy for a factual sufficiency
challenge is to reverse and remand for a new trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922,
930 (Tex. 2009) (per curiam). Even if we were to address this issue and sustain appellant’s factual
sufficiency challenge, appellant would be afforded no greater relief than she is entitled to on her notice
issue.


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trial setting. TEX. R. CIV. P. 245. The notice required by Rule 245 “is mandatory and

involves the constitutionally protected right of due process.” In re I.L.S., 339 S.W.3d

156, 159 (Tex. App.—Dallas 2011, no pet.). Many courts of appeals have held that the

failure to give notice that complies with the rule to a party in a contested case5 “results

in a violation of fundamental due process.” Campsey v. Campsey, 111 S.W.3d 767,

771 (Tex. App.—Fort Worth 2003, no pet.) (citing Platt v. Platt, 991 S.W.2d 481, 483

(Tex. App.—Tyler 1999, no pet.)). If notice is not given in compliance with the rule, “the

post-answer default judgment should be set aside because it is ineffectual.”                              Id.;

Custom-Crete, Inc. v. K-Bar Serv., Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio

2002, no pet.); Blanco v. Bolanos, 20 S.W.3d 809, 811–12 (Tex. App.—El Paso 2000,

no pet.); Barbosa v. Hollis Rutledge & Assoc., Inc., No. 13-05-485-CV, 2007 WL

1845583, at **1–2 (Tex. App.—Corpus Christi, June 28, 2007, no pet.) (mem. op.); see

Smith v. Lippmann, 826 S.W.2d 137, 137–38 (Tex. 1992) (per curiam) (holding that the

documents appellant filed with the court constituted an answer and the appellant was

therefore entitled to “at least” the full period of notice under Rule 245).

        Appellee argues that a violation of Rule 245, standing alone, “does not require

automatic reversal for a new trial,” In re J.B., 93 S.W.3d 609, 615 (Tex. App.—Waco

2002, pet. denied), and that “it is well settled law” that a party’s right to notice under

Rule 245 can be waived if the party receiving defective notice goes to trial.                           See

Custom-Crete, 82 S.W.3d at 658. Notice under Rule 245 can indeed be waived if a


        5
           When a party files an answer but does not appear at trial, it “constitutes neither an
abandonment of the defendant’s answer nor an implied confession of any issues thus joined by the
defendant’s answer.” Paradigm Oil, Inc. v. Retmaco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012)
(citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). Therefore, judgment cannot be rendered
on the pleadings as in a no-answer default judgment, and the plaintiff is still required to prove his claim to
the same extent as if the other party appeared at trial. Id.; see also Tranum v. Tranum, No. 13-98-091-
CV, 2000 WL 35721224, at *1 (Tex. App.—Corpus Christi June 1, 2000, no pet.).

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party who is actively litigating the case did not receive the full notice but proceeded to

trial without objection. Id. at 658–59. In this case, nothing in the record shows that

appellant had notice of the hearing in order to object, so appellant took no action

whatsoever between the time she filed her answer and the time she filed her notice of

restricted appeal. In these circumstances—when a defendant answers but takes no

further action—many appellate courts, including this one, have held that a post-answer

default should be set aside. See Custom-Crete, 82 S.W.3d at 659–60 (setting aside a

post-answer default judgment even when a non-authorized corporate representative

appeared at trial to represent a corporate defendant); Barbosa, 2007 WL 1845583, at

**1–2 (setting aside a post-answer default judgment in a restricted appeal on facts

similar to the present case); Blanco, 20 S.W.3d at 811–12 (setting aside a post-answer

default judgment in a divorce case on restricted appeal solely because appellant

received less than forty-five days’ notice). Appellee does not cite to any case where a

defendant who answered but took no other action was deemed to have waived their

right to notice under Rule 245, and we have found none. Accordingly, we hold that error

is apparent on the face of the record because appellant did not receive the required

notice. Appellant’s third issue is sustained.

                                     III. CONCLUSION

       We reverse the default judgment and remand for trial on the merits.6

                                                     _______________________
                                                     NORA L. LONGORIA
                                                     Justice

Delivered and filed the
23rd day of May, 2013.

       6
         We express no opinion on whether appellant was served with the amended petition, or whether
the evidence appellee produced at trial is legally and factually sufficient to support the judgment.

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