Kevin Hamilton v. Security State Bank, N. A.--Appeal from 115th District Court of Upshur County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00124-CV

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KEVIN HAMILTON, Appellant

V.

SECURITY STATE BANK, N. A., Appellee

On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 334-05

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Security State Bank, N. A. (Security) sued Kevin Hamilton claiming he had defaulted on a promissory note. The trial court rendered a default judgment in favor of Security. Hamilton appeals that judgment. We reverse the judgment of the trial court and remand for further proceedings because we hold the trial court erred in rendering the default judgment. //

The trial court's default judgment states, "[T]he Defendant, Kevin Hamilton, has failed to appear and answer within the time prescribed by law and has wholly made default." Reviewing the record before us, we find that Hamilton filed an answer before the entry of the court's judgment, but there is no evidence he was notified of the default judgment hearing. Therefore, the trial court erred by entering a default judgment.

Security filed its original petition June 7, 2005. Hamilton was served with process July 16, 2005. On August 8, 2005, Hamilton filed a response to Security's petition. On September 5, 2005, Security filed a motion for default judgment asserting that Hamilton had "wholly made default." The trial court entered the default judgment September 8, 2005.

Where a defendant has filed an answer, default judgment is improper, even if the defendant fails to appear at trial. Parrish v. Rutherford, 159 S.W.3d 114, 116 (Tex. App. Corpus Christi 2004, no pet.); see Tex. R. Civ. P. 239. Further, it is error to render judgment by default when a plea is on file, even if the plea is defective. Reitmeyer v. Charm Craft Publisher, 619 S.W.2d 441 (Tex. Civ. App. Waco 1981, no writ). Hamilton's filed response is entitled "Counter Claim." At the top of the document are the names of the parties, the trial court cause number, and the title of the district court in which the case was pending. The body of the document makes it clear that Hamilton is aware of the nature of the case against him, gives some response to the plaintiff's petition, and attempts to assert a counterclaim against Security.

Although Hamilton's plea was not in the standard form of an answer, it nevertheless gave the court a timely response acknowledging receipt and acceptance of Security's citation and petition. In re K.B.A., 145 S.W.3d 685, 691 (Tex. App. Fort Worth 2004, no pet.) (citing see Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992); see also Santex Roofing Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex. App. San Antonio 1987, no writ) (holding Texas courts have always been reluctant to uphold default judgment without notice where some response from defendant is found in the record)). Hamilton's filing constituted an appearance in the matter and entitled him to notice of further proceedings in the case. See Lippmann, 826 S.W.2d at 138 (holding timely-filed pro se letter from defendant identifying parties, case, and defendant's current address was sufficient answer to defeat default judgment). // There is no evidence in the record that Hamilton was notified of the default judgment hearing.

The record shows that Hamilton appeared by answer before the rendition of the default judgment, but includes no evidence that he received notice of the hearing. Therefore, Hamilton is entitled to a new trial.

We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Jack Carter

Justice

Date Submitted: February 2, 2006

Date Decided: February 22, 2006