Opinion by: Phylis J. Speedlin, Justice
Concurring opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sarah B. Duncan, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: November 4, 2004
REVERSED AND REMANDED
The prior opinion and judgment issued in this case on November 3, 2004, were issued in error and are hereby withdrawn, and this opinion and judgment are substituted.
Appellant, Janet Alvarez, seeks, by restricted appeal, to set aside two default judgments entered against her in the underlying personal injury lawsuit. Alvarez claims that the default judgments were improper because she had filed an answer, and therefore error is apparent on the face of the record. We agree and we reverse and remand.
Background
This case involves a personal injury action originally brought by three plaintiffs, Patricia Snider, Paul Kirk, and Keith McDaniel, against Janet Alvarez arising from a motor vehicle accident that occurred on January 19, 2001. The lawsuit was filed on January 16, 2003, under Cause No. 2003-CI-00772. On February 18, 2003, before Alvarez had answered or made an appearance, a default judgment was entered in favor of one of the plaintiffs, Snider, against Alvarez. That default judgment is not challenged on appeal. Also on February 18, 2003, an order was granted severing the live claims involving the two remaining plaintiffs into a new cause number. The default judgment taken by Snider continued in the original cause number (No. 2003-CI-00772) and the claims made by Kirk and McDaniel, which had yet to be resolved, were assigned a new cause number (No. 2003-CI-02487). Unaware of the severance order or the new cause number, Alvarez then filed an original answer in the original cause number (No. 2003-CI-00772) addressing the claims of all of the plaintiffs.
On June 3, 2003, Kirk and McDaniel proceeded to take default judgments against Alvarez in the severed cause number (No. 2003-CI-02487). Alvarez timely filed a notice of restricted appeal as to these default judgments.
Analysis
To attack a default judgment by restricted appeal, four prerequisites must be met: (1) notice of appeal must be filed within six months after the judgment is signed; (2) by a party to the suit; (3) who did not participate at trial; (4) and the error complained of must be apparent on the face of the record. Tex. R. App. P. 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999); Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). The first three elements are not disputed. We will therefore focus on the issue of error apparent on the face of the record.
A plaintiff may properly seek a default judgment after the defendant's time to file an answer has expired and the citation and proof of service have been on file with the clerk for at least ten days, excluding the day of filing and the day of judgment. Tex. R. Civ. P. 107, 239. If the defendant files an answer after the deadline to answer but before the trial court considers a motion for default judgment, the court cannot render a default judgment. Tex. R. Civ. P. 239; Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam); Dowell Schlumberger, Inc. v. Jackson, 730 S.W.2d 818, 819 (Tex. App. -El Paso 1987, writ ref'd n.r.e.); Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex. App. - San Antonio 1983, no writ). The record before us shows Alvarez was served on January 25, 2003; accordingly her answer was due on February 17, 2003. She did file an answer on February 24, 2003. That answer was on file at the time the trial court granted the default in the second cause number. The record before us includes no proof that Alvarez was given notice of the new cause number (No. 2003-CI-02487) that was created by the severance in February 2003. Therefore, it was proper for Alvarez to file her answer in the only cause number with which she had been served, No. 2003-CI-00772. The fact that the answer was filed in the wrong cause number does not defeat its effectiveness. See City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992). Therefore, the trial court's entry of the default judgments in favor of Kirk and McDaniel was erroneous and such error is apparent on the face of the record. Having met all of the elements for restricted appeal, Alvarez is entitled to have the default judgments set aside. We therefore reverse the judgment of the trial court in Cause No. 2003-CI-02487 and remand for a new trial.
Phylis J. Speedlin, Justice