LBL Oil Co. v. International Power Services, Inc.
LBL OIL COMPANY D/B/A LBL Gas Systems, Petitioner v. INTERNATIONAL POWER SERVICES, INC., Respondent
Opinion
PER CURIAM.
This is a post-appearance default judgment case, appealed by writ of error to the court of appeals. The court of appeals affirmed the trial court judgment with an unpublished opinion. Since the record demonstrates that no notice was given to defendant of the hearing on the motion disposi-tive of the case, a majority of the court reverses the judgment of the court of appeals and remands the cause to the trial court because the decision conflicts with 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).
International Power Services, Inc. sued “LBL Oil Company, a Texas corporation” allegedly doing business as LBL Gas Systems, on a sworn account. The citation return shows service on a registered agent.
R.H. Lindley, a citizen of Oklahoma, filed a pro se motion to dismiss, alleging that he was the sole owner of the unincorporated business LBL Oil Company, that it was an “Oklahoma ‘dba,’ ” and that there was no jurisdiction over him since there had been no service. Lindley suggested that plaintiff had mistakenly sued a Texas corporation with a similar name. International Power Services filed a response asking that the motion to dismiss be overruled, and set the motion for hearing. Notice of this hearing was sent to Lindley.
The trial court overruled the motion to dismiss. Without amending its pleadings, International Power Services filed a motion for default judgment, alleging that LBL Oil Company by its defective motion to dismiss had made a general appearance. It further alleged that the time had already expired to file an answer after a motion to quash service was overruled, and therefore it was entitled to judgment by default. There is no certificate of service on this motion, and counsel for International Power Services apparently failed to serve a copy on Lind-ley. Likewise, the record shows no notice of hearing of the default judgment motion was served on Lindley.
Six months later Lindley filed the present writ of error appeal, alleging among other matters that he had been denied due process by the failure to serve notice of the default motion and hearing on him. Once a defendant has made an appearance in a cause, he is entitled to notice of the trial setting as a matter of due *391 process under the Fourteenth Amendment to the federal constitution, as set forth in Peralta v. Heights Medical Center, Inc., 485 U.S. 80 , 108 S.Ct. 896 , 99 L.Ed.2d 75 (1988).
See Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988). The record here establishes that Lindley had no actual or constructive notice of the hearing on the motion for default judgment, which effectively was his trial setting since it was dispositive of the case.
The decision of the court of appeals affirming the judgment is in conflict with Peralta and Lopez .
Pursuant to Tex.R. App.P. 133(b), we grant the application of LBL Oil Company filed pro se by R.H. Lindley as sole owner of the company, and, without hearing oral argument, a majority of the court reverses the judgment of the court of appeals and remands the cause to the trial court. We do not, however, suggest that rendering default judgment against an individual defendant doing business under a company name is proper based on unamended pleadings alleging that the company is a corporation.
How later courts describe this case
Explanatory parentheticals written by citing courts — 22 in all; the most informative distinct ones are shown.
-
(holding that a hearing that is dispositive of a case is effectively a trial setting)
-
(holding that, as a matter of due process, a defendant who makes an appearance in a case must receive notice of any filing or setting that could result in the disposition of the pending action)
-
(holding failure to give pro se defendant notice of trial setting deprived him of due process)
-
(noting that constitutional right to due process entitles defendant who has made appearance in cause to notice of trial setting)
-
(finding that a motion to dismiss the plaintiff’s claim, while not a formal answer, was an appearance entitling him to actual or constructive notice of the hearing in the motion for default judgment)
-
(reversing and remanding case to tiial comi based on conclusion that defendant had no actual or constructive notice of trial setting)
-
(reviewing a notice defect in the context of a post-answer default judgment and reviewing the due process claim pursuant to Peralta and without reference to any other Craddock requirement)
-
(post-answer default judgment reversed when party did not receive actual or constructive notice of dispositive hearing)
Cited by 226 cases
View all citing references →Relies on it most ⓘ
- In re the Marriage of Runberg
- Xenos Yuen v. Fisher
- In re the Marriage of Lisa Ann Runberg and Doak Tim Runberg and in the Interest of Stuart Forrest Runberg, Madeline Day Runberg, Jennifer Louise Runberg, John Garrett Runberg and Zane Garrison Runberg, Children
- Betty Ann Newby v. Brian Shinall, D/B/A Real Estate Concepts, and the City of Borger, Texas
- In re the Marriage of Lisa Ann Runberg and Doak Tim Runberg and in the Interest of Stuart Forrest Runberg, Madeline Day Runberg, Jennifer Louise Runberg, John Garrett Runberg and Zane Garrison Runberg, Children
- Kevin W. Matthews v. Nalco Company, LLC D/B/A Ecolab, Inc.
Most recent
- Unger Texas Stone, LP and Shelia Marie Unger v. Deere Credit, Inc.
- In the Interest of G.K., a Child v. the State of Texas
- George Y. Lohmann, Jr.; Doc Properties, LLC; Midland European Waxing I, LLC; And Midland Double Dave's Pizza, LLC v. EWC Franchise, LLC
- Kevin W. Matthews v. Nalco Company, LLC D/B/A Ecolab, Inc.
- In the Interest of J.A., a Child v. the State of Texas
- Chung Chin "David" Chen v. the State of Texas
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.