dissenting.
Because there is a conflict among the courts of appeals and between the justices on this panel endeavoring to conscientiously interpret rule 45(b), the supreme court should now offer a clear guide for the courts to evaluate “participation in the actual trial” as used in this rule. See Tex.R.App.P. 45(b).
Presently, participation “in the actual trial of the case in the trial court” is a matter of degree. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex.1985). The issue of participation arises in a variety of contexts, though, from default and summary judgments to full trials on the merits. The degree of participation required to bar availability of writ of error review is necessarily different depending on the context in which the issue arises. For example, in the summary judgment context, a litigant may be barred from appeal by writ of error even if he did not appear in the courtroom because participation in the decision-making event is complete prior to this time. See Dillard v. Patel, 809 S.W.2d 509, 512 (Tex.App. — San Antonio 1991, writ denied); Thacker v. Thacker, 496 S.W.2d 201, 204 (Tex.Civ.App. — Amarillo 1973, writ dism’d).
At the other end of the spectrum is participation in a trial on the merits. In this context, even pretrial participation or physical presence in the courtroom during trial may not be sufficient to bar review by writ of error. See Tramco Enter., Inc. v. Independent Am. Sav. Ass’n, 739 S.W.2d 944, 947 (TexApp. — Fort Worth 1987, no writ) (pretrial participation); Allen v. Allen, 647 S.W.2d 356, 361 (Tex.App. — El Paso 1982, no writ) (mere physical presence in courtroom). It is apparent, then, that assessment of the degree of participation necessary to preclude appeal by writ of error will vary depending on the type of proceeding that leads to the judgment appealed. Disposition of a case by a preliminary motion such as a motion for summary judgment or a motion to dismiss may not require a great degree of participation. Disposition of a case by completion of a full trial on the merits, though, should require a large degree of participation before the appellant is barred from writ of error review. See In re Estate of Wallock, 846 S.W.2d 536, 540 (TexApp. — Corpus Christi 1993, no writ) (large degree of participation). This conclusion is supported by the rule that assessment of actual participation should be liberally construed to favor appeal. Stubbs v. Stubbs, 685 S.W.2d at 645.
The judgment Texaco here assails was entered following a full trial on the merits before a jury. Texaco did not participate in jury selection, jury argument, examination of witnesses, or the presentation of evidence. The judgment, signed by the court on December, 1992, recites, “It also appearing that Defendant Texaco, Inc. had settled its portion of this case with the Plaintiffs prior to the selection of a jury for....” The record, however, reflects that Texaco’s counsel, during a pretrial conference, announced ready for trial and the attorneys were then excused by the court to confer. During the trial, an attorney, recognized by the court as representing Texaco, returned to the court. The court announced to the jury, “This is one of those times that uh, we can’t tell you what’s going on. Okay?” The jury was then excused, and, during that recess a settlement agreement was announced. That attorney was then excused by the court.
I disagree that Adams v. Isbell, 615 S.W.2d 254 (Tex.Civ.App. — Dallas 1981, no *865writ), is distinguishable from the present case. Counsel for appellant in Adams appeared before the trial court to obtain a nonsuit. The court specifically informed him that trial on appellee’s counterclaim would proceed. In spite of this warning, the attorney left the courtroom. Neither appellant nor his attorney was present in the courtroom after that time. The court of appeals concluded that appellant was not denied review by writ of error because the record did not reflect that he participated in the hearing that led to the rendition of judgment. Id. at 256.
Similarly, nothing in our record reflects that Texaco participated in the hearing (trial) that led to rendition of the judgment against it. Texaco’s attorney appeared during a recess in the trial for the purpose of announcing a settlement agreement. Not only was he not admonished by the trial court concerning litigation of any pending counterclaim, he was rather casually dismissed by the court:
THE COURT: Okay. Then the settlement agreement as agreed to by the parties will be approved by the court and you may go back to work or take the day off whatever.
(Emphasis added.) This occurred after Texaco’s counsel1 made an effort to conclude all the undetermined issues such as “friendly suits regarding children” or whether Texaco would be “indemnified by virtue of the settlement agreement against any statutory lien rights of the eomp,.earrier.” Nothing in the record indicates that Texaco’s counsel was absenting himself from court in order to procure some strategic advantage for his client.
The majority opinion rests on (1) Texaco’s announcement of ready, (2) the announcement of the settlement, and (3) the receipt of and failure to respond to the notice of tariff.2 In the context of a full jury trial, this “participation” is simply not of sufficient magnitude to preclude Texaco from bringing this appeal by writ of error. Because Texaco never made any appearance before the finder-of-faet, I cannot conclude that it participated in the “actual trial of the case in the trial court.” Tex.R.App.P. 45(b) (emphasis added). I would deny the motion to dismiss and address this appeal on its merits.
. It appears that the attorney sent by Texaco to announce the settlement agreement may not have been one of the attorneys originally assigned to conduct the litigation. This attorney acknowledged that he was "not as well versed in the facts of the case as the rest of the counsel are.” While we certainly do not condone appearance by counsel who is not prepared, this attorney’s efforts to ensure that all matters involving Texaco were concluded highlight the failure of either the trial court or opposing counsel to inform him of continuing litigation of the pending counterclaim.
. While Texaco may have been aware of its exposure to liability based on the tariff, this knowledge is not the equivalent of participation at trial. Were it otherwise, simply serving a party with notice of the claims against it could be construed as "participation.” Further, contraiy to the majority’s conclusion, knowledge of the tariff does not preclude Texaco from asserting that it was "unfamiliar with the record" and required additional time to perfect an appeal. Nothing in the record demonstrates that Texaco was familiar with the record establishing C.P.L.'s liability or the extent of the plaintiffs' damages. These elements are crucial to an evaluation of Texaco's ultimate liability to C.P.L. Further, I question the majority’s reliance on Texaco's failure to respond to the notice of tariff as evidence of its participation at trial. If Texaco had responded, appellees would be arguing that that response constituted participation.