Victor Moreno and Extreme Collision & Automotive v. Herbert Lawrence Polinard ( 2009 )

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MEMORANDUM OPINION
No. 04-08-00493-CV
Victor MORENO and Xtreme Collision & Automotive,
Appellants
v.
Herbert Lawrence POLINARD,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-02456
Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: February 25, 2009
REVERSED AND REMANDED
Victor Moreno and Xtreme Collision & Automotive appeal a default judgment granted in
favor of Herbert Lawrence Polinard. In three issues, Moreno and Xtreme assert the trial court erred
in granting the default judgment because: (1) they entered an appearance but did not receive any
notice of the default judgment hearing; (2) the return citations were not on file ten days prior to the
default judgment; and (3) the pleadings do not support the judgment. Because we hold that Moreno
04-08-00493-CV
and Xtreme entered an appearance but did not receive notice of the default judgment hearing, we
reverse the trial court’s judgment and remand the cause for further proceedings.1
DISCUSSION
Xtreme and Moreno first assert that the trial court erred in granting the default judgment
because Moreno entered an appearance but did not receive any notice of the default judgment
hearing. Unquestionably, if Moreno and Xtreme had entered an appearance, the default judgment
in this case must be reversed because they did not receive notice of the hearing. See LBL Oil Co. v.
Int’l Power Serv., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989).
The reporter’s record from the temporary injunction hearing held on February 28, 2008,
reveals that Moreno was present at that hearing pro se. Polinard appears to argue that Moreno’s
presence at the hearing did not constitute an appearance.
Whether a party has “appeared” depends on the nature and quality of the party’s activities
in the case. See In re Marriage of Runberg, 159 S.W.3d 194, 198 (Tex. App.—Amarillo 2005, no
pet.); Serna v. Webster, 908 S.W.2d 487, 492 (Tex. App.—San Antonio 1995, no writ) (quoting
Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex. App.—Amarillo 1984, no writ)). “[A]
party who examines witnesses or offers testimony has made an appearance for all purposes.”
Bradford v. Bradford, 971 S.W.2d 595, 598 (Tex. App.—Dallas 1998, no pet.). “On the other hand,
a party who is a ‘silent figurehead in the courtroom, observing the proceedings without participating’
has not.” Id. (quoting Smith, 672 S.W.2d at 617).
In this case, the reporter’s record from the temporary injunction hearing establishes that
Moreno offered testimony and cross-examined witnesses at the hearing; accordingly, Moreno made
1
… Because appellants’ first issue is dispositive of this appeal, we do not address their
other issues. See TEX . R. APP . P. 47.1.
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04-08-00493-CV
an appearance for all purposes. Bradford, 971 S.W.2d at 598. Because Moreno made an
appearance, he was entitled to notice of the default judgment hearing. See LBL Oil Co., 777 S.W.2d
at 390-91; see also Coastal Bank SSB v. Helle, 48 S.W.3d 796, 798, 801 (Tex. App.—Corpus Christi
2001, pet. denied) (reversing default judgment against defendant who appeared at temporary
injunction hearing but was not given notice of default judgment hearing).
The next question to be addressed is whether Moreno’s appearance also constituted an
appearance by Xtreme. A defendant may appear in person, by attorney, or by a duly authorized
agent. TEX . R. CIV . P. 120. We note that Moreno’s appearance would not constitute an appearance
by Xtreme if Xtreme was a corporation. Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655,
659 (Tex. App.—San Antonio 2002, no pet.). The record, however, does not reflect that Xtreme is
a corporation.2 Moreno testified at the temporary injunction hearing that Xtreme is a “d/b/a.”
Because Xtreme is just an assumed name under which Moreno conducts business, Moreno’s
appearance at the temporary injunction hearing also constituted an appearance by Xtreme. See TEX .
R. CIV . P. 28 (noting individual doing business under assumed name may be sued in assumed name
but true name may be substituted on motion by any party or on the court’s own motion).
CONCLUSION
Because Moreno had made an appearance personally and on behalf of Xtreme but neither was
given notice of the default judgment hearing, the trial court’s default judgment is reversed, and the
cause is remanded for further proceedings.
Marialyn Barnard, Justice
2
… Polinard’s petition identifies Xtreme as “a resident of Bexar County, Texas.”
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