Michael Haller, Tony Kishindo, and HHT Limited Company v. Clavo Oil LLC ( 2013 )

Opinion filed August 15, 2013
In The
Eleventh Court of Appeals
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No. 11-11-00230-CV
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MICHAEL HALLER, TONY KISHINDO,
AND HHT LIMITED COMPANY, Appellants
V.
CLAVO OIL, LLC, Appellee
On Appeal from the 259th District Court
Shackelford County, Texas
Trial Court Cause No. 2011-035
MEMORANDUM OPINION
The trial court granted a default judgment in favor of Clavo Oil, LLC and
against Michael Haller, Tony Kishindo, and HHT Limited Company in the amount
of $34,734.59. We reverse and remand.
Haller, Kishindo, and HHT (Appellants) present three issues on appeal.
Because we find the first issue to be dispositive of this appeal, we do not reach the
second and third issues. See TEX. R. APP. P. 47.1. In the first issue, Appellants
urge that their rights to due process were violated when the trial court entered a
default judgment against them without notice of the hearing. We agree.
Procedural History
On April 5, 2011, Clavo Oil filed its original petition for breach of contract
and conversion. Appellants were duly served with a citation on April 13, 2011.
Appellants filed a motion to transfer venue on April 21, 2011. On June 16, 2011,
the trial court entered a default judgment against Appellants. The default judgment
reflects that Appellants “failed to appear and answer and wholly made default.”
Analysis
In their first issue, Appellants assert, as they did in their motion for new trial,
that they received no notice of the hearing on the default judgment. There is
nothing in the record to indicate that Appellants received notice of any hearing or
that Appellants were sent any such notice. Furthermore, Clavo Oil does not assert
that Appellants were notified of the hearing.
A defendant is not entitled to notice of a default judgment proceeding until
he answers or appears in a case. Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied). However, “Texas courts have
always been reluctant to uphold a default judgment without notice where some
response from the defendant is found in the record.” Santex Roofing & Sheet
Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex. App.—San Antonio
1987, no writ). The rule is founded upon due process principles. Peralta v.
Heights Med. Ctr., Inc., 485 U.S. 80 (1988); In re Brilliant, 86 S.W.3d 680, 692–
93 (Tex. App.—El Paso 2002, no pet.). A motion to transfer venue is a dilatory
plea, after the filing of which a defendant is entitled to notice of subsequent
proceedings. See TEX. R. CIV. P. 85. Therefore, we hold that Appellants’ motion
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to transfer venue was an appearance in this case and that they were entitled to
notice of the hearing on the motion for default judgment.
Because Appellants were entitled to notice of the default judgment hearing,
and because there is no indication in the record that Appellants received that
notice, Appellants’ first issue is sustained.
We reverse the judgment of the trial court, and we remand the cause for
further proceedings in that court.
MIKE WILLSON
JUSTICE
August 15, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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