dissenting.
I dissent. I would reverse and remand for two reasons.
*6251. No notice of the hearing on damages.
In point of error one, Long complains that the trial court erred in granting a default judgment because he did not have notice of the court’s intention to call this case for trial. The majority holds that after the defendant was served with process and failed to answer, the plaintiff had no legal duty to notify the defendant of the hearing to receive evidence of damages.
The majority relies on a case from our Court, K-Mart Apparel Fashion Corp. v. Ramsey, 695 S.W.2d 243, 246 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.), to support its position that it was not necessary for plaintiff to give defendant notice of the hearing on damages. Significantly, Ramsey pre-dates the two most important cases dealing with notice and default judgment, Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988), and Lopez v. Lopez, 757 S.W.2d 721 (Tex.1988). In Peralta, a no-answer default case, the United States Supreme Court held that Texas could not require a defendant to prove a meritorious defense in a bill of review. Peralta, 108 S.Ct. at 900. A judgment entered without proper notice is “plainly infirm” by reason of the due process clause. Id. Following closely behind Peralta, the Texas Supreme Court issued Lopez, a post-answer default case, and held that the defendant was entitled to actual or constructive notice of the trial setting. Lopez, 757 S.W.2d at 723. I think that Peralta, Lopez, and due process require a plaintiff to give a defendant notice of the hearing to receive evidence on unliq-uidated damages.
The act of granting a default judgment should be distinguished from the hearing to present evidence on a claim for unliqui-dated damages. If the default judgment can be rendered without a hearing on damages, that is, if the damages are liquidated, the final default judgment can be rendered without giving a defendant notice of a hearing because no hearing is necessary. The notice in the citation is notice that the judgment will be rendered on the pleadings if a defendant does not appear or answer. Tex.R.Civ.P. 99(b) (the citation “shall notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition”).
If the default judgment cannot be rendered without a hearing on damages, that is, if the damages are unliquidated, the final default judgment cannot be rendered without giving the defendant notice of the hearing on damages. The notice in the citation is not notice of the amount of. un-liquidated damages.
Once the trial court has granted a judgment by default against a defendant for failure to appear or answer, from that point on, the defendant is in the case as if he had filed an answer. By granting a default judgment against a defendant, the trial court decided it had jurisdiction over the defendant and that the defendant was responsible under plaintiff’s pleadings. In that sense, once the trial court has entered a default judgment, the court has deemed the defendant to have appeared in the case. If the pleadings are for unliquidated damages, and if a hearing must be conducted to determine the amount of damages, I believe the defendant is entitled to notice of that hearing. The notice, after default but before a hearing, could be the same kind of notice given to a party once the party has answered, that is, by certified mail, return receipt requested.
Rule 243, Tex.R.Civ.P., provides for a hearing called a writ of inquiry after default to determine unliquidated damages. See Chemical Exchange Industries, Inc. v. Vasquez, 709 S.W.2d 257, 261 (Tex.App.—Houston [14th Dist.]) (case referred to the “complexities of the writ of inquiry process”) rev’d 721 S.W.2d 284 (Tex.1986); Justice Life Ins. Co. v. Walker, 508 S.W.2d 434, 439 (Tex.App.—Fort Worth 1974, writ ref’d n.r.e.) (called the writ of inquiry a deferred hearing for unliquidated damages). The definition of writ of inquiry in Black’s Law Dictionary is a writ issued after the plaintiff obtained a judgment by default on an unliquidated claim, directing the sheriff, with the aid of a jury, to inquire into the amount of the plaintiff’s demand and assess his damages. Black’s *626Law Dictionary, p. 1444 (West 5th ed. 1979). However modem practice has modified the common law procedure, it is still a hearing to determine unliquidated damages after default.
I draw the following conclusions from the following cases: A defendant in a no-answer default case is entitled to a jury trial on unliquidated damages upon proper demand. See Maywald Trailer Co. v. Perry, 238 S.W.2d 826, 828 (Tex.App.—Galveston 1951, writ dism’d) (writ of inquiry after no-answer default). A defendant in a no-answer default case is entitled to attend the hearing on unliquidated damages. See e.g., Harris County Water Control and Improvement District No. 84 v. Homberger, 601 S.W.2d 66, 67 (Tex.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (writ of inquiry after no-answer default). If the defendant attends the hearing on damages, the defendant may object to the evidence. See e.g., Homberger, 601 S.W.2d at 67, 68; see also Bass v. Duffey, 620 S.W.2d 847, 849-50 (Tex.App.—Houston [14th Dist.] 1981, no writ) (default after answer struck for discovery sanction). If defendant attends the hearing on damages, defendant is entitled to cross-examine witnesses. See also Bass, 620 S.W.2d at 849-50. If defendant attends the hearing on damages, defendant is entitled to introduce evidence. Maywald Trailer, 238 S.W.2d at 828; see also Bass, 620 S.W.2d at 850 (defendant may show plaintiff sustained no damages). Defendant’s right to demand a jury, to attend the hearing, to cross-examine witnesses, to object to evidence, and to introduce evidence should not depend upon the fortuitous discovery of the hearing. Due process requires notice of the hearing.
I would overrule Ramsey, sustain point of error one, and reverse.
2. No notice of the rendition of judgment.
In point of error two, Long complains that the trial court erred in granting McDermott’s motion for default judgment and entering judgment against Long because no notice of the signing of the order was ever sent to him as required by Tex. R.Civ.P. 239a. We have three rules that require the clerk to send a party notice of the judgment. See Tex.R.Civ.P. 239a, 306a(3); Tex.R.App.P. 5(b)(3). All three rules state that, even though the clerk is required to send the notice, the clerk’s failure to send it does not affect the finality of the judgment. The rules do not state that the clerk’s failure to send notice or a party’s failure to receive the notice does not affect the validity of the judgment.
In Peralta, the defendant argued throughout the appeal in the state courts and in the United States Supreme Court that he had neither notice of the suit by proper service nor notice of the judgment after its rendition. The Supreme Court said
[Ujnder our cases, a judgment entered without notice or service is constitutionally infirm.
Peralta, 108 S.Ct. at 898-99. I believe Peralta states failure of the clerk to give notice of the judgment or the failure of the party to receive notice makes the judgment constitutionally infirm. Another court of appeals has interpreted Peralta as requiring the court to give and the party to receive notice of the judgment. See American Gen. Fire & Cas. v. Schattman, 761 S.W.2d 582, 586 (Tex.App.—Port Worth 1988) (orig. proceeding) (case was dismissed for want of prosecution).