                           NUMBER 13-10-00237-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


OMAR CUEVAS AND ELIZABETH CUEVAS,                                       Appellants,

                                          v.

WHEAT INVESTMENTS, INC.,                                                   Appellee.


                   On appeal from the 370th District Court
                         of Hidalgo County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Perkes
            Memorandum Opinion by Chief Justice Valdez
      Appellants, Omar and Elizabeth Cuevas, bring this restricted appeal complaining

about a no-answer default judgment entered in favor of appellee, Wheat Investments,

Inc. (―Wheat‖). See TEX. R. APP. P. 30. By one issue, the Cuevases argue that the trial

court erred in entering the no-answer default judgment because the record indicates
that they filed an answer to Wheat’s lawsuit on December 18, 2009, and because they

were not provided notice of the default-judgment hearing. We reverse the judgment of

the trial court and remand for proceedings consistent with this opinion.


                          I.      FACTUAL AND PROCEDURAL BACKGROUND
        On September 10, 2009, Wheat and the Cuevases entered into a contract for the

sale of properties located at 300, 302, and 304 South 17th Street in McAllen, Texas, for

$600,000. Wheat was the buyer, and the Cuevases were the sellers of the properties.

As consideration for the contract, Wheat paid $1,000 in earnest money to the

Cuevases.

        Pursuant to various provisions in the sales contract, the Cuevases represented

that they were the owners of the properties. However, Wheat later discovered that the

Cuevases did not own the properties. Rather, Edward H. and Blanca Rodriguez owned

the properties and were trying to sell the properties to the Cuevases, who, in turn, were

trying to sell the properties to Wheat.1

        Upon discovering that the Cuevases were not the owners of the property and

could not sell or transfer rights to the property, Wheat filed suit against the Cuevases on

November 24, 2009. In its original petition, Wheat alleged that the Cuevases were in

breach of contract and sought to reform the contract so that the Cuevases could

specifically perform under the sales contract. In addition, Wheat contended that the

Cuevases fraudulently represented that they owned the properties to induce Wheat to

enter into the sales contract, and as a result, Wheat sought exemplary damages against

the Cuevases.
        1
          Wheat’s trial counsel, Manuel Trigo Jr., executed an affidavit in support of Wheat’s motion for
default judgment, wherein he alleged, among other things, that the Cuevases were trying to purchase the
properties from the Rodriguezes for a total cost of $185,000.

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         On December 18, 2009, the Cuevases filed an answer generally denying the

accusations made by Wheat in its original petition. Nevertheless, on December 21,

2009, Wheat moved for a default judgment, alleging that the Cuevases had failed to file

an answer in this case. The trial court conducted a hearing on Wheat’s motion for

default judgment.           At the hearing, counsel for Wheat appeared; however, no one

appeared on the Cuevases’ behalf.                     The trial court subsequently granted default

judgment in favor of Wheat, granting Wheat $19,000 in actual damages, $7,500 in

exemplary damages, court costs, post-judgment interest, and $7,500 in attorney’s fees

and attorney’s fees for appeals of this matter. The trial court noted that the Cuevases

had a $9,898.39 interest in the properties and ordered that interest be transferred to

Wheat. In addition, the trial court listed the following findings in its default-judgment

order:


   A. Defendants Omar Cuevas and Elizabeth Cuevas were served with citation
      and a copy of Plaintiff Wheat Investments, Inc.[’s original petition];

   B. The citation and proof of service were on file with this Court at least ten
      days before judgment was rendered;

   C. The deadline for Defendants Omar Cuevas and Elizabeth Cuevas to file
      an answer has passed; and

   D. Defendants Omar Cuevas and Elizabeth Cuevas did not file an answer or
      any other pleading constituting an answer.
         On April 19, 2010, the Cuevases timely filed their notice of restricted appeal.

See TEX. R. APP. P. 25.1(d)(7), 26.1(c), 30.


                                           II.     RESTRICTED APPEAL2



         2
             Wheat has not filed an appellee’s brief in this matter.


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       To attack a trial court’s judgment by restricted appeal, the Cuevases must show

that: (1) a notice of appeal was filed within six months of the date of the complained-of

judgment was signed; (2) the Cuevases were parties to the suit that did not participate

in the hearing that resulted in the judgment or order; (3) the Cuevases did not timely file

a post-judgment motion, request findings of fact and conclusions of law, or file a notice

of appeal within the time permitted under Texas Rule of Appellate Procedure 26.1(a);

and (4) the complained-of error is apparent from the face of the record. See TEX. R.

APP. P. 26.1(c), 30; see also Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.

2004); Tex. Dep’t of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus

Christi 2007, no pet.).

       Here, the Cuevases, named parties to Wheat’s underlying lawsuit, filed their

notice of appeal on April 19, 2010, which was within six months of the date that the trial

court signed the order granting Wheat’s default judgment—December 21, 2009. While

we do not have a reporter’s record of the default-judgment hearing, the trial court noted

in its final default-judgment order that the Cuevases did not appear for the default-

judgment hearing.3 Further, the record does not reflect that the Cuevases filed any

post-judgment motions, requests for findings of fact and conclusions of law, or a timely

notice of appeal within the context of rule 26.1(a). See TEX. R. APP. P. 26.1(a). Finally,

as addressed below, the complained-of error—that the Cuevases had indeed filed a

timely answer to Wheat’s lawsuit and were not provided notice of the December 21,

2009 hearing—is apparent from the face of the record. See Norman Commc’ns v. Tex.


       3
         Although the Cuevases filed an answer to Wheat’s lawsuit, filing an answer is not participation
for purposes of a restricted appeal. See Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); see also
Tex. Dep’t of Pub. Safety v. Gutierrez, No. 13-09-256-CV, 2009 Tex. App. LEXIS 8753, at *3 n.3 (Tex.
App.–Corpus Christi Nov. 12, 2009, no pet.) (mem. op.).

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Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (stating that the face of the

record, for purposes of restricted appeals, consists of all the papers on file in the

appeal).   Thus, we conclude that the Cuevases have satisfied each element for

obtaining relief through this restricted appeal.


                     III.   THE CUEVASES’ ANSWER TO WHEAT’S LAWSUIT
       In their sole issue, the Cuevases assert that there is error on the face of the

record because the trial court’s default judgment erroneously states that they did not file

an answer to Wheat’s lawsuit. The Cuevases also contend that they did not appear at

the default-judgment hearing because they did not receive notice of the hearing, though

such notice was mandatory.

       Texas Rule of Civil Procedure 99(b) required the Cuevases to file their written

answer to Wheat’s lawsuit ―before 10:00 a.m. on the Monday next after the expiration of

twenty days after the date of service thereof.‖      TEX. R. CIV. P. 99(b).    The record

indicates that the Cuevases were served with a copy of Wheat’s original petition on

December 1, 2009; thus, their answer was due on December 21, 2010. The Cuevases

timely filed their answer to Wheat’s lawsuit on December 18, 2009.          Nevertheless,

Wheat, apparently unaware of the filing of the Cuevases’ December 18, 2009 answer,

moved for default judgment on December 21, 2010, and the trial court granted the

motion on the same day without providing notice to the Cuevases.

       A defendant who timely files an answer identifying the parties, the case, the

defendant’s current address, and responds to the petition has sufficiently appeared by

answer. Guadalupe Econ. Servs. Corp. v. Dehoyos, 183 S.W.3d 712, 716 (Tex. App.–

Austin 2005, no pet.) (citing Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1991) (per


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curiam)). A default judgment may not be rendered after the defendant has filed an

answer in the matter.4 Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam)

(holding that a default judgment was erroneous because defendant filed an answer to

plaintiff’s lawsuit, even though the trial court was unaware that an answer had been

filed); see TEX. R. CIV. P. 239; see also Santex Roofing & Sheet Metal, Inc. v. Venture

Steel, Inc., 737 S.W.2d 55, 56-57 (Tex. App.–San Antonio 1987, no writ) (―Texas courts

have always been reluctant to uphold a default judgment without notice where some

response from the defendant is found in the record.‖).

        Further, a defendant who has made an appearance in a cause is entitled to

notice of subsequent trial settings as a matter of due process under the Fourteenth

Amendment of the United States Constitution. LBL Oil Co. v. Int’l Power Serv., Inc., 777

S.W.2d 390, 390-91 (Tex. 1989). A defendant who does not receive notice of a default

judgment proceeding is deprived of due process. Id. A notice of trial setting ordinarily

does not appear in the clerk’s record and need not affirmatively appear there. Prihoda

v. Marek, 797 S.W.2d 170, 171 (Tex. App.–Corpus Christi 1990, writ denied). Rather,

the law presumes that a trial court will hear a case only after proper notice to the

parties. Delgado v. Hernandez, 951 S.W.2d 97, 99 (Tex. App.–Corpus Christi 1997, no

writ). To rebut this presumption, the Cuevases have the burden to affirmatively show a

lack of notice by affidavit or other competent evidence. Id.; see Jones v. Tex. Dep’t of

Pub. Safety, 803 S.W.2d 760, 761 (Tex. App.–Houston [14th Dist.] 1991, no writ).




        4
          We recognize that the Texas Supreme Court has authorized post-answer default judgments in
instances where a defendant who has answered a lawsuit fails to appear for trial, see Dolgencorp of Tex.,
Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.
1979)); however, the facts in this case do not give rise to such an instance.

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       The Texas Rules of Civil Procedure require that a party be given notice of the

first trial setting of a contested case at least forty-five days prior to the trial date. TEX. R.

CIV. P. 245. A trial court’s failure to comply with the rules of notice in a contested case

deprives a party of the constitutional right to be present at the hearing, to voice his

objections in an appropriate manner, and results in a violation of due process.

Campsey v. Campsey, 111 S.W.3d 767, 770 (Tex. App.–Fort Worth 2003, no pet.)

(citing Platt v. Platt, 991 S.W.2d 481, 483 (Tex. App.–Tyler 1999, no pet.)); Blanco v.

Bolanos, 20 S.W.3d 809, 811 (Tex. App.–El Paso 2000, no pet.). The forty-five day

notice provision of rule 245 is mandatory. Custom-Crete, Inc. v. K-Bar Servs., Inc., 82

S.W.3d 655, 659 (Tex. App.–San Antonio 2002, no pet.) (citing Lippmann, 826 S.W.2d

at 138; Hardin v. Hardin, 932 S.W.2d 566, 567 (Tex. App.–Tyler 1995, no writ); Bell

Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140 (Tex. App.–Texarkana 1993,

writ denied)). If the respondent does not have notice of the trial setting as required by

rule 245, the default judgment should be set aside because it is ineffectual. Campsey,

111 S.W.3d at 771; Bolanos, 20 S.W.3d at 811. A hearing that effectively disposes of

the case is a trial setting. See LBL Oil Co., 777 S.W.2d at 391; Murphee v. Ziegelmair,

937 S.W.2d 493, 495 (Tex. App.–Houston [1st Dist.] 1995, no writ).

       Here, the trial court’s default-judgment order disposed of Wheat’s claims;

therefore, the hearing on Wheat’s motion for default judgment constituted a trial setting.

And because the December 21, 2009 default-judgment hearing was a trial setting, it

was a denial of due process for the trial court to grant Wheat’s motion for default

judgment without notice to the Cuevases, especially considering that the Cuevases had

previously filed an answer to the suit. Moreover, the record demonstrates that: (1) the



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Cuevases were served with notice of Wheat’s lawsuit on December 1, 2009; (2) Wheat

filed its motion for default judgment on December 21, 2009; and (3) on December 21,

2009, the trial court granted default judgment for Wheat without providing the Cuevases

with forty-five days notice, as mandated by rule 245. See TEX. R. CIV. P. 245. Because

the record does not show that notice of the default-judgment hearing was provided to

the Cuevases and because they had timely filed an answer to Wheat’s lawsuit, we

conclude that the trial court erred in granting Wheat’s motion for default judgment. See

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85-87 (holding that a trial court errs if it

proceeds to trial and renders a default judgment without notice after the defendant has

filed an answer); LBL Oil Co., 777 S.W.2d at 390-91 (same); Dehoyos, 183 S.W.3d at

716 (same); Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex. App.–San Antonio 1983, no

writ) (same); see also TEX. R. CIV. P. 239; Davis, 764 S.W.2d at 560; Santex Roofing &

Sheet Metal, Inc., 737 S.W.2d at 56-57. Accordingly, we sustain the Cuevases’ sole

issue on appeal.


                                      IV.    CONCLUSION
       Based on the foregoing, we reverse the trial court’s default judgment and remand

for proceedings consistent with this opinion.


                                                  ________________________
                                                  ROGELIO VALDEZ
                                                  Chief Justice


Delivered and filed the
10th day of February, 2011.




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