Opinion
No. 05-06-00180-CV
Opinion issued November 9, 2006.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. 05-08632-B.
Reversed and Remanded.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Elvira Hernandez brings this restricted appeal from the trial court's entry of a "no answer" default judgment entered in favor of Credigy Receivables, Inc. Appellant contends there is error on the face of the record, namely, the trial court erred in entering the default judgment because she timely filed an answer. We reverse the trial court's judgment and remand the cause.
BACKGROUND
Appellee filed its suit against appellant on July 7, 2005. The affidavit of service states the service of the petition occurred on August 27, 2005. Thus, appellant's answer date was Monday, September 19, 2005. Appellant, through her attorney, timely filed her answer on the preceding Friday, September 16, 2005. The answer included a certificate of service stating it was served the same day by facsimile on appellee's counsel at the number listed on appellee's petition. On October 18, 2005, despite appellant's timely answer, appellee filed a motion for entry of default judgment. The motion's certificate of service states a copy of the motion was mailed to appellant personally-not to her attorney-on a date that is handwritten and illegible. On October 19, 2005, the day after the motion for default judgment was filed, the court entered default judgment against appellant, reciting that appellant "although duly cited to appear, has failed to file an answer within the time allowed by law. . . ." On February 13, 2006, appellant filed notice of restricted appeal.
Although the affidavit of service is not an issue in this appeal, appellant noted that the affidavit also has problems. The affidavit states in part, "On the 27th Day of August, 2005, . . this affiant served the above described documents upon [appellant] by then and there personally delivering 0 true and correct copy(ies) thereof. . . ."
RESTRICTED APPEAL
If a party did not participate in the hearing resulting in the judgment and did not timely file a post-judgment motion, request for findings of fact and conclusions of law, or a notice of a regular appeal, the party may bring a restricted appeal of the judgment by filing the notice of appeal within six months of the judgment. Tex.R.App.P. 26.1(c), 30; Allodial Ltd. P'ship v. Susan Barilich, P.C., 184 S.W.3d 405, 407 (Tex.App.-Dallas 2006, no pet.). Review is limited to error on the face of the record. Fid. Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. 2006).
In this case, the record indicates that appellant did not participate in the hearing resulting in the judgment, she did not timely file a post-judgment motion, request for findings of fact and conclusions of law, or notice for a regular appeal. Appellant filed her notice of restricted appeal within six months of the judgment. Accordingly, we shall review the record for error on the face of the record.
DEFAULT JUDGMENT
Appellant's issue on appeal asserts the trial court erred by entering a no-answer default judgment against her when she had timely filed an answer. We agree.
Rule of civil procedure 239 states, "the plaintiff may in term time take judgment by default against such defendant if he 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. Jeffries, 764 S.W.2d 559, 560 (Tex. 1989); Bennett v. Bennett, 868 S.W.2d 408, 408-09 (Tex.App.-Houston [14th Dist.] 1993, no writ); Reitmeyer v. Charm Craft Publisher, 619 S.W.2d 441, 442 (Tex.Civ.App.-Waco 1981, no writ).
Because appellant had timely filed an answer, the trial court erred in rendering a no-answer default judgment against her. We conclude there is error on the face of the record. We sustain appellant's first issue.
We reverse the trial court's judgment and remand the cause to the trial court for further proceedings.