The majority holds that the trial court struck Sunbelt's pleadings for failure to amend, and once the pleadings were struck, the default judgment was proper since no controverted issues of fact remained. I disagree.
The judgment states:
*Page 776The Court further finds that Defendant, Sunbelt Tectonics, Inc., has failed to appear for the second pre-trial hearing of this cause and accordingly the Court finds that Defendant's Original Answer should be stricken from the pleadings
filed in this cause, in its entirety, including Defendant's Counterclaim alleged against Plaintiff.The Court further finds that upon default of the Defendant by its failure to appear at the scheduled pre-trial hearing of January 23rd, 1987, the Plaintiff should be granted a default judgment against the Defendant.
Thus, the trial court struck Sunbelt's pleadings and granted a default judgment because Sunbelt did not appear at the January 23rd hearing.
The issue, then, is whether the record shows proper notice of the January 23rd hearing. TEX.R.CIV.P. 166 and 21a. I would hold in the negative.
Although the judgment states that Sunbelt was given notice of the January 23rd hearing, the usual presumptions in favor of a judgment's validity are not indulged in a writ of error proceeding. Wilson v. Industrial Leasing Corp., 689 S.W.2d 496, 497 (Tex.App. — Houston [1st Dist.] 1985, no writ). In other words, there must be prima facie evidence of proper notice in the record.
As noted by the majority, the record contains a letter from Sunbelt's former attorney, L. David Levinson. The majority finds that this letter serves as proper notice, since the court had discretion to direct the notice be sent in that manner, relying on TEX.R.CIV.P. 21a.
Rule 21a provides, in part:
Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service.
TEX.R.CIV.P. 21a.
The record fails to affirmatively show that service was completed. There is no prima facie evidence of completed service in the record. Under Rule 21a,
A written statement by an attorney of record, or the return of the officer, or the affidavit of any other person showing service of a notice shall be prima facie evidence of the fact of service.
None of these appear in the record. The only written statement is the letter from Levinson, which is not a statement that notice was received by Sunbelt. The letter is the purported notice, itself. Furthermore, the record reflects that on January 9, 1987, the court allowed Levinson to withdraw, and then the court reset the case to January 23rd without further notice. Levinson was not the attorney of record for Sunbelt when the case was reset nor when the letter was written.
The majority incorrectly shifts the burden to Sunbelt by stating that Sunbelt does not deny it received the letter. The question is whether the record shows proper notice.See De La Fuente v. Castillo, 740 S.W.2d 113 (Tex.App. — San Antonio, 1987, no writ).
Accordingly, I would hold that the record fails to affirmatively show that Sunbelt was given proper notice as required under TEX.R.CIV.P. 166 and 21a.
Even if the trial court struck down Sunbelt's pleadings and entered the default judgment for failure to amend, I would hold that the trial court abused its discretion.
The majority bases its opinion on the following recitation from the judgment:
. . . on November 17, 1986, in a hearing on Plaintiff's Special Exceptions, Defendant agreed to amend its answer to conform with the allegations contained in Plaintiff's Special Exceptions, filed of record, and agreed to omit and withdraw its counterclaim alleging a violation of the Texas Deceptive Trade Practices Act. Defendant failed to file its amended answer.
The majority states, "The record shows that following the November 17th hearing, Sunbelt was extended further opportunity to amend its pleadings."
I find nothing in the record to show any extension of time to amend. The record also fails to show the substance of any special exceptions. TEX.R.CIV.P. 91. The record does not show any order sustaining appellee's special exceptions. TEX.R.CIV.P. 166. The record does not show an *Page 777 agreement by Sunbelt to amend. TEX.R.CIV.P. 11.
Whether the pleadings were struck because of Sunbelt's failure to appear or failure to amend, the trial court abused its discretion.
I would reverse and remand.