In re Jose A. Perez and Nancy C. Perez--Appeal from 80th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-10-01051-CV

Case Date: 12/03/2010

Plaintiff: Dwanna Charlene Granade

Defendant: Gary Granade--Appeal from 506th Judicial District Court of Grimes County

Preview:Reversed and Remanded and Memorandum Opinion filed July 21, 2011.

In The

Fourteenth Court of Appeals
NO. 14-10-00340-CV DWANNA CHARLENE GRANADE, Appellant V. GARY GRANADE, Appellee On Appeal from the 506th District Court Grimes County, Texas Trial Court Cause No. 2881

MEMORANDUM OPINION
A wife appeals the trial court's rendition of a no-answer default judgment in a divorce, claiming, among other things, that a handwritten document she sent to the trial court constituted her answer to the husband's suit and that the trial court erred in rendering default judgment when she had an answer on file. We reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND Gary Granade filed a petition for divorce from his wife Dwanna Charlene Granade on November 30, 2009. Gary sought division of the community estate and confirmation

that unspecified property constituted his separate property. It is undisputed that Dwanna received citation of service on that same day. The record contains a facsimile copy of a handwritten document (hereinafter "fax") addressed to the attention of the district clerk and bearing what appears to be Dwanna's signature and two phone numbers. The fax is somewhat illegible because of a page break between the two pages and the poor quality of the facsimile copy; however, the following can be gleaned from the handwriting, "I Dwanna Charlene Granade the respondant [sic] in case #2881 in the 506th District Court [illegible] request an extension [illegible] of time on filing [illegible] and response to the aforementioned case." This document was filed in the court below on December 22, 2009. Seven weeks later, on February 12, 2010, the trial court, without further notice to Dwanna, rendered a final decree of divorce, noting that Dwanna had been properly cited and served and had defaulted by failing to appear. The trial court granted Gary's petition and ordered dissolution of the marriage. The trial court divided the community estate and confirmed a list of property as separate property belonging to Gary. No reporter's record was made of the proceedings. Dwanna, through counsel, filed a motion for new trial, seeking to set aside the default judgment and requesting a hearing on her motion, claiming that the fax served as an answer to the suit. The record does not reflect that the trial court conducted a hearing or ruled on Dwanna's motion, which was overruled by operation of law. In six appellate issues, Dwanna challenges the rendition of the default judgment, the trial court's failure to conduct a hearing or rule on her motion for new trial, and the lack of a reporter's record of the February 12, 2010 hearing. As discussed below, whether the fax was sufficient to serve as Dwanna's answer in the suit is dispositive of the case.

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PROPRIETY OF DEFAULT JUDGMENT Dwanna asserts in her first issue that the fax contained all of the requisites for an answer and that the trial court improperly granted a default judgment against her because the fax was on file before rendition of the default judgment. A trial court may render a default judgment only if the defendant "has not previously filed an answer." TEX. R. CIV. P. 239. All pleadings shall be construed so as to do substantial justice. TEX. R. CIV. P. 45(d). Pleadings will be construed liberally in the absence of special exceptions. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex. 1977). Texas courts have shown reluctance to uphold default judgments rendered without notice when a response from the defendant is found in the record. See Sells v. Drott, 259 S.W.3d 156, 159 (Tex. 2008); Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992). The Supreme Court of Texas and this court have taken an expansive view of what may be construed as an answer in a suit. See, e.g., Sells, 259 S.W.3d at 159 (reversing and remanding on basis that answer was facially valid despite potentially defective signature); Lippmann, 826 S.W.2d at 138; Faunce v. NCNB Tex. Nat'l Bank, 846 S.W.2d 876, 877 (Tex. App.--Houston [14th Dist.] 1992, no writ) (sustaining issue that trial court erred in rendering no-answer default judgment when record reflected that the defendant had a timely pro se answer on file before rendition of the trial court's judgment). The Supreme Court of Texas has stated that a defendant who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant's current address, has appeared sufficiently by answer and deserves notice of subsequent proceedings in the case. Lippmann, 826 S.W.2d at 138 (concluding that letter amounted to a timely filed answer because it was signed by defendant, identified parties and case, included defendant's address, and acknowledged receipt of the citation and petition). The record reflects that Dwanna filed a timely answer before rendition of the no-answer default judgment. Though it does not identify Gary as the opposing party or contain Dwanna's address, the fax was sent in response to Gary's notice of suit. The fax bears 3

Dwanna's signature, phone numbers for contacting her, and identifies the cause number, her status as a party-respondent in the case, and the trial court in which the suit was filed. Although the fax may not be in the "standard form" of an answer, Dwanna gave the trial court a timely response to the citation notifying her of Gary's suit. See Lippmann, 826 S.W.2d at 138. Under a liberal construction, the fax is a sufficient response to the suit and serves as Dwanna's answer. See TEX. R. CIV. P. 45(d); see also Sells, 259 S.W.3d at 159; Lippman, 826 S.W.2d at 138. Because the fax constitutes an answer to the suit, the trial court erred in granting default judgment against Dwanna. See TEX. R. CIV. P. 239; Davis v. Jeffries, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam); Faunce, 846 S.W.2d at 877 (reversing and remanding trial court's no-answer default judgment because the record reflected that the defendant had timely filed a pro se answer to the suit). Dwanna was entitled to appropriate notice of the default judgment hearing. See TEX. R. CIV. P. 245; Lippman, 826 S.W.2d at 138. We sustain Dwanna's first issue.1 The trial court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

/s/

Kem Thompson Frost Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

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Because Dwanna's first issue is dispositive, we do not reach Dwanna's five other issues.

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