












 
 
 
 
 
 
                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                        NO.
2-06-215-CV
 
 
PAUL B. BAIN                                                                     APPELLANT
 
                                                   V.
 
JEANETTE
C. BAIN AND                                                       APPELLEES
CITIBANK
(SOUTH DAKOTA) N.A.
 
                                              ------------
 
         FROM
COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
 
                                              ------------




In this restricted appeal,
appellant Paul B. Bain complains that default judgment was improper because he
filed an answer before it was rendered, that the absence of a reporter=s record prevents him from effectively showing error, that there is
insufficient evidence to support the trial court=s award of attorney=s fees to appellee Jeanette C. Bain (AJeanette@), and that
the default judgment is void for lack of jurisdiction.  Citibank (South Dakota) N.A. (ACitibank@) and
Jeanette did not file briefs in this appeal. 
Because error exists on the face of the record, we will reverse the
default judgment and remand the case to the trial court.
BACKGROUND 
Citibank filed a suit on
sworn account against Appellant=s ex-wife, Jeanette, who filed a general denial and cross petition
against Appellant. Jeanette responded to Citibank=s motion for summary judgment by arguing that Citibank was suing the
wrong party, and attached copies of the divorce decree, which allocated the
Citibank debt to Appellant, and the divorce court=s June 2005 order, which granted judgment to Jeanette against Appellant
for the amount of the Citibank debt.  In
August 2005, she filed a motion for default judgment against Appellant in the
Citibank case.  Appellant filed a pro se
answer and counter petition in October 2005. 
The trial court granted summary judgment to Citibank, against Jeanette,
on February 17, 2006.
On April 19, 2006, the trial
court signed an order granting Jeanette a default judgment against Appellant
for Afailure to pay Court Ordered debt,@ awarding to her $26,548.85, the amount of the Citibank debt, and an
additional $26,548.85 as attorney=s fees.  The order indicates
that a hearing was held on August 15, 2005.




JURISDICTION
In his fourth issue,
Appellant claims that the trial court=s summary judgment order of February 17, 2006 should be regarded as
the final judgment in this case, rendering the April 19, 2006 default judgment
against him void because it was signed after the expiration of the trial court=s plenary power under Texas Rule of Civil Procedure 329b(d).  See Tex.
R. Civ. P. 329b(d).
Rule 329b(d) states that the
trial court Ahas plenary
power . . . to vacate, modify, correct, or reform the judgment within thirty
days after the judgment is signed.@  Id.  A trial court has plenary power over the
judgment until it becomes final; it retains continuing control over
interlocutory orders, with the power to set those orders aside, any time before
a final judgment is entered.  See
Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993).  Upon expiration of its plenary power period,
however, a judgment cannot be set aside by the trial court except by a
timely-filed bill of review for sufficient cause.  See Tex.
R. Civ. P. 329b(f).




A judgment entered without a
conventional trial on the merits is final Aif and only if either it actually disposes of all claims and
parties then before the court, regardless of its language, or it states
with unmistakable clarity that it is a final judgment as to all claims and all
parties.@  Lehmann v. Har‑Con
Corp., 39 S.W.3d 191, 192‑93 (Tex. 2001) (emphasis added).  The trial court=s summary judgment order addresses the claims set forth in Citibank=s motion for summary judgment and Jeanette=s response.  The order is
entitled AFinal
Summary Judgment@ and
unequivocally orders that Defendant Jeanette C. Bain Atake nothing by any of [her] claims@ and states that A[t]his judgment finally disposes of all claims and parties and is
appealable.@  However, because the order does not address
Jeanette=s cross-claim against Appellant, it does not actually dispose of all
claims and parties before the court. 
Therefore, Aregardless
of its language,@ the summary
judgment order cannot be considered final as to Appellant.  See id. at 192.  We overrule Appellant=s fourth issue.
RESTRICTED APPEAL
Standard Of Review




A restricted appeal is a
procedural device available to a party who did not participate, either in
person or through counsel, in a hearing that resulted in a judgment against the
party.  Tex.
R. App. P. 30.  To be entitled to
a restricted appeal, an appellant must first show that it:  (1) filed its notice of restricted appeal
within six months after the trial court signed the judgment or order; (2) is a
party to the suit; (3) did not participate in the hearing that resulted in the
judgment complained of; and (4) did not timely file any post‑judgment
motion or request for findings of fact and conclusions of law, or a notice of
appeal within the time permitted by rule 26.1(a).  Tex.
R. App. P. 26.1(a), (c), 30; Clopton v. Pak, 66 S.W.3d 513, 515
(Tex. App.CFort Worth
2001, pet. denied).  Appellant has met
these initial requirements.
Once an appellant establishes
that it has met the requirements of a restricted appeal, it must then establish
error apparent from the face of the record before it will be entitled to relief
from the adverse judgment.  Clopton,
66 S.W.3d at 515.  In determining whether
the requirement that error appear on the face of the record has been met, we
may consider all of the papers on file in the appeal, including the clerk=s record and any reporter=s record.  DSC Fin. Corp. v.
Moffitt, 815 S.W.2d 551, 551 (Tex. 1991).
Reporter=s Record & Sufficiency Of
The Evidence
In his second issue,
Appellant complains that the absence of a reporter=s record effectively prevents him from showing error on appeal.  In his third issue, he complains that there
is no evidence, or insufficient evidence, to support the trial court=s finding that Jeanette incurred $24,548.85 in attorney=s fees in enforcing a debt in that same amount.




An assertion that the
evidence is factually insufficient to support a fact finding means that the evidence
supporting the finding is so weak or the evidence to the contrary is so
overwhelming that the answer should be set aside and a new trial ordered.  Garza v. Alviar, 395 S.W.2d 821, 823
(Tex. 1965).  We are required to consider
all of the evidence in the case in making this determination, not just the
evidence that supports the finding.  Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 406‑07 (Tex.), cert.
denied, 525 U.S. 1017 (1998).
In factual insufficiency
cases, our opinion must detail the evidence relevant to the issue in
consideration, clearly state why the finding is factually insufficient, and
state in what regard the contrary evidence greatly outweighs the evidence in
support of the finding.  Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh=g); see also Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805
(Tex. 1986).  If we sustain an issue
because the evidence is factually insufficient, we must reverse the judgment of
the trial court and remand for new trial. 
Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401‑02
(Tex. 1981) (op. refusing writ n.r.e.). 
This court has no jurisdiction to render judgment based on an
insufficient evidence issue.  B.J.
Valve & Fitting Co. v. Elliott Valve Repair Co., 679 S.W.2d 1, 1 (Tex.
1984).




When an appellant attacks the
sufficiency of the evidence to support the trial court=s determination of damages in a default judgment, he is entitled to a
review of the evidence produced.  Dawson
v. Briggs, 107 S.W.3d 739, 748 (Tex. App.CFort Worth 2003, no pet.).  The
rules of appellate procedure require that the official court reporter attend
court sessions and make a full record of the proceedings unless excused by
agreement of the parties.  Tex. R. App. P. 13.1(a).  When evidence is offered to support a default
judgment, the lack of a reporter=s record entitles a defendant to a new trial because he will be unable
to obtain a record of the evidence for review by an appellate court.  See Rogers v. Rogers, 561 S.W.2d 172,
173 (Tex. 1978) (reversing no-answer default judgment via appeal by writ of
error because evidence was presented but no reporter=s record existed).  However, a
trial court may award unliquidated damages in a no-answer default judgment
based on affidavits.  See Tex.
Commerce Bank Nat. Ass=n. v. New, 3 S.W.3d 515, 516‑17
(Tex. 1999) (holding that in a no‑answer default judgment, affidavits can
satisfy rule 243>s
requirement of evidence of unliquidated damages).  Further, the pleadings and affidavits
constitute a record upon which the court may base a default judgment.  Id. at 517; see also Reeve v.
Citibank (South Dakota, N.A.), No. 02‑04‑00152‑CV, 2005
WL 554791, at *2 (Tex. App.CFort Worth Mar. 10, 2005, no pet.) (mem. op.).[2]





Here, although Appellant
requested that a reporter=s record of
the default judgment hearing be filed with this court, none was provided.  On July 21, 2006, the clerk of this court
received a letter from the official court reporter of the trial court stating
that there were no reporter=s notes taken.  Jeanette=s attorney filed a letter with this court on September 27, 2006,
indicating that no formal hearing was held Aregarding the Default Judgment prove‑up.@  Jeanette=s attorney did file in the trial court an affidavit attesting to his
fees with the motion for default judgment. 
However, the amount requested as a reasonable fee, $1,862, with an
additional $3,000 estimated for appeal to the court of appeals and an
additional $5,000 estimated for appeal to the supreme court,[3]
is far removed from the amount actually awarded, $24,548.85.




Because no reporter=s record was made of the hearing that resulted in the judgment
complained of by Appellant, and the amount of attorney=s fees awarded differs significantly from the amount requested in the
affidavit, the only evidence in the record pertaining to this issue, there is
insufficient evidence for our review to determine how the court arrived at this
figure.  Cf. Westcliffe, Inc. v. Bear
Creek Constr., Ltd., 105 S.W.3d 286, 294 (Tex. App.CDallas 2003, no pet.) (upholding attorney=s fee award in restricted appeal based on attorney=s filed affidavit and testimony). 
Accordingly, we sustain Appellant=s second and third issues. 
CONCLUSION
Having overruled Appellant=s fourth issue, but sustained his second and third issues, we reverse
the trial court=s default
judgment and remand the case to the trial court.  In light of our disposition of his second and
third issues, we need not address Appellant=s first issue.  See Tex. R. App. P. 47.1.
 
DIXON
W. HOLMAN
JUSTICE
 
 
PANEL F:  HOLMAN, GARDNER, and
WALKER, JJ.
DELIVERED:  January 25, 2007




[1]See Tex.
R. App. P. 47.4.


[2]Based on our conclusion here, we do
not reach Appellant=s first issue, arguing that the
default judgment was improperly rendered as a no-answer default instead of a
post-answer default.


[3]Jeanette=s attorney states in the affidavit:
It is my opinion that in the event
this case is appealed to the court of appeals, attorney=s fees in the amount of $3,000.00
would be a reasonable fee for services performed in this cause on appeal to the
court of appeals.  It is my opinion that
in the event this case is appealed to the Texas Supreme Court, additional
attorney=s fees in the amount of $5,000.00
would be a reasonable fee for services performed in this cause on appeal to the
Texas Supreme Court.
 


