dissenting.
I respectfully dissent.
“While I concur with the majority’s disposition of Appellant’s first point of error, I respectfully dissent to the majority’s disposition of Appellant’s second point.
A party who is entitled to notice pursuant to Rule 245 Tex.R. Civ. P. may set aside a judgment by default taken against him if he was not served with such notice in compliance with Rule 21a Tex.R. Civ. P. The face of the record shows that (1) by using regular mail the trial court did not comply with Rule 21a; and (2) appellant did not receive the regular mail notice. Our Supreme Court held that in reviewing an appeal by writ of error, as here, “the error must appear on the face of the record.” Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). The “face of the record, for purposes of writ of error review, consists of all the papers on file in the appeal, including the statement of facts.” Id. As in all appeals, it does not including anything outside the record presented for appellate review.
Recently, in reviewing a writ of error case, the First District addressed factual and legal issues identical to those of the case at bar. See Transoceanic Shipping Co., Inc. v. General Universal Systems, Inc., 961 S.W.2d 418 (Tex.App.-Houston [1st Dist.] 1997, no writ). The appellant in Transoceanic Shipping Co. contended that a default judgment entered against it was improper because its trial counsel did not receive notice of the trial setting. Id. at 419. The court of appeals observed that the envelope in which the notice was mailed to the appellant’s trial counsel was stamped, “RETURN TO SENDER; UNDELIVERABLE AS ADDRESSED; FORWARDING ORDER EXPIRED.” Id. at 420. This is precisely what occurred in the instant matter: the record clearly indicates that the envelope in which the notice was sent to Appellant’s trial counsel was returned to the county clerk, stamped “Forwarding Order Expired.”
Consistent with the standard of review set forth by the Supreme Court, the court of appeals in Transoceanic Shipping Co. reversed the default judgment, holding that the “face of the record” affirmatively reflected that the appellant’s trial counsel did not receive the trial setting notice. Id. Here, too, the “face of the record” affirmatively reflects that Appellant’s trial counsel did not receive notice of the trial setting. In juxtaposition, the factual and legal issues in the instant matter and Transoceanic Shipping Co. are indistinguishable.
The court in Transoceanic Shipping Co. was not persuaded by the appellee’s argument that the default judgment should be affirmed because it was the appellant’s fault that the trial court did not have the current address of the appellant’s trial counsel. Id. “[AJppeal by writ of error is not an equitable proceeding. Therefore, a writ of error appellant is not required to show diligence or lack of negligence before its complaints will be heard.” Id. (quoting Texaco v. Central Power & Light Co., 925 S.W.2d 586, 590 (Tex.1996)). In rejecting the reasoning of the First District, the majority in this case holds that neither the court nor opposing counsel should be responsible for Appellant’s trial counsel’s failure to notify the court and opposing counsel of his address change.1 However, *43assuming arguendo that the majority’s holding is correct, there is nothing in the record of this matter to suggest that Appellant’s trial counsel did not notify the county court and opposing counsel of his address change. It is possible that the county court failed to note the address change, mailing the notice of trial setting to the wrong address.2 Appellee did not file a brief in this case, and we are restricted to reviewing only the “face of the record.” See Norman Communications, 955 S.W.2d at 270. Whether the error was made by Appellant’s trial counsel or the county court cannot be discerned from the record presented for our review.
This Court’s holding should not be based upon its surmise that Appellant’s trial counsel failed to notify the court and opposing counsel of his address change. The majority’s opinion in this case is not based completely upon the record and is in contrast to the clear and sound precedent of Transoceanic Shipping Co.
. This Court shares the same jurisdictional (geographic) boundaries as the First Court of *43Appeals. The majority opinion in this case reaches a polar opposite conclusion as did the First Court of Appeals based upon the same facts and legal issues, ignoring the doctrine of stare decisis. See Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 420-22 (Tex.App.-Houston [14th Dist.] 1997, no writ) (Lee, J., dissenting).
. It is noteworthy that a failure to give the required notice under Rule 245 constitutes a denial of a party's due process right to be heard in a contested case. See Tex.R. Civ. P. 245; Transoceanic Shipping Co., Inc., 961 S.W.2d at 420 n. 2.