IN THE INTEREST OF T.P.E., A CHILD

AFFIRM as modified; Opinion issued October 26, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01348-CV
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IN THE INTEREST OF T.P.E., A CHILD
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On Appeal from the 330th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-11207
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MEMORANDUM OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice Whittington
        Trevor Eckert appeals the trial court's judgment terminating his parental rights to his son. In two issues, Eckert contends the trial judge erred in entering a default judgment against him because (i) his original answer should not have been struck even though it did not have his signature but that of his brother and (ii) he had an answer on file but did not receive forty-five days notice of the May 30, 2006 hearing that resulted in a final judgment. We affirm the trial court's judgment.
        The final judgment in this case recites that Eckert, “although duly and properly cited, did not appear and wholly made default.” It further states, Eckert “was present telephonically long distance via loud speaker, and was permitted to both testify and cross examine witnesses.” The reporter's record confirms Eckert participated by telephone in the May 30th hearing.
        In his first issue, Eckert claims the trial judge erred in striking his original answer. We note, however, that Eckert's original pleading is not in the clerk's record, nor is there an order striking the pleading. Without these documents, we cannot determine whether the trial judge struck Eckert's pleading or whether such action was erroneous. Nevertheless, the record contains Eckert's signed amended answer filed January 20, 2006. Therefore, Eckert had on file with the trial court an amended answer bearing his signature at the time of the May 30, 2006 hearing. The judgment recites, and the record clearly shows, Eckert participated in the hearing. Under these circumstances, the trial judge could not enter a default judgment against Eckert. Therefore, the language in the final judgment reciting Eckert “did not appear and wholly made default” is erroneous. Nevertheless, we conclude it did not cause the rendition of improper judgment. See Tex. R. App. P. 44.1(a). We sustain Eckert's first issue and modify the trial court's final judgment by deleting the language that Eckert “did not appear and wholly made default.”
        Under his second issue, Eckert complains he was not afforded forty-five days notice as required by rule 245 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 245. Rule 245 provides that a trial judge must provide “reasonable notice of not less than 45 days to the parties of a first setting for trial . . .. ” Tex. R. Civ. P. 245. However, any error resulting from a trial judge's failure to give this requisite notice is waived if the party proceeds to trial and fails to object to the lack of notice. In re J.(B.B.)M., 955 S.W.2d 405, 408 (Tex. App.-San Antonio 1997, no pet.); see also State Farm Fire & Cas. Co. v. Price, 845 S.W.2d 427, 432-33 (Tex. App.-Amarillo 1992, writ dism'd by agr.). Because Eckert participated in the May 30th proceeding but did not object to the lack of notice or move for a continuance, we conclude he has waived any error resulting from the trial judge's failure to give forty-five days notice. We overrule Eckert's second issue.
        We modify the trial court's judgment to remove the language “did not appear and wholly made default.” We affirm the trial court's judgment as modified.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
061348F.P05