Opinion · Texas Supreme Court

Norman Communications v. Texas Eastman Co.

41 Tex. Sup. Ct. J. 83

Type
Opinion
Court
Texas Supreme Court
Jurisdiction
Texas
Date
1997-10-30
Topic
finance

holding that an appellate court’s review of any restricted appeal may include review of the legal and factual sufficiency of the evidence | stating that review by restricted appeal affords appellant same scope of review as ordinary appeal, which is review of entire case | stating that review by restricted appeal affords appellant same scope of review as ordinary appeal, which is review of entire case | stating that review by restricted appeal affords appellant same scope of review as ordinary appeal, which is review of entire case | recognizing review of legal and factual sufficiency claims is permissible when a post-answer default judgment is challenged by restricted appeal | holding review on restricted appeal may include legal and factual sufficiency of evidence issues | holding review on restricted appeal may include legal and factual sufficiency of evidence issues | holding review on restricted appeal may include legal and factual sufficiency of evidence issues | holding that restricted-appeal error review includes sufficiency review | stating that review by writ of error affords an appellant the same scope of review as an ordinary appeal, restricted only by the requirement that error appear on the face of the record | defining face of the record as all papers on file in the appeal, including the statement of facts | affirming holding that affidavit attached to appellate brief did not satisfy restricted appeal requirement that error be apparent on face of record | defining face of the record as all papers on file in the appeal, including the statement of facts | defining face of the record as all papers on file in the appeal, including the statement of facts | outlining elements of restricted appeal using former “writ of error” terminology | review of a restricted appeal necessarily includes review of the legal and factual sufficiency of the evidence | appellant in restricted appeal may challenge legal sufficiency of evidence to support default judgment | “Review by writ of error affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case” | review of a restricted appeal necessarily includes review of the legal and factual sufficiency of the evidence | review of a restricted appeal necessarily includes review of the legal and factual sufficiency of the evidence | review of a restricted appeal necessarily includes review of the legal and factual sufficiency of the evidence | review of a restricted appeal necessarily includes review of the legal and factual sufficiency of the evidence | applying four requirements under prior Rule 45 | same, under prior nomenclature of "writ of error" | remanding for review of appellant’s legal sufficiency point | involving a former writ of error review | involving a former writ of error review | applying four requirements under prior Rule 45 | decided under predecessor writ-of-error practice | decided under predecessor writ-of-error practice | setting out writ of error standards | setting out writ of error standards | discussing writ of error procedure | decided under predecessor writ-of-error practice | discussing writ of error procedure | decided under predecessor writ-of-error practice | decided under former, writ-of-error practice | decided under predecessor writ-of-error practice | decided under predecessor writ-of-error practice

Citator

Cited by
242 opinions
PER curiam:.

Norman Communications appealed from a post-answer default judgment by way of writ of error to the court of appeals. Norman alleged two grounds for setting aside the judgment: (1) it did not receive notice of the trial setting; and (2) the evidence was not legally sufficient to support the default judgment. The court of appeals overruled Norman’s point of error on lack of notice. The court of appeals then held that it could not reach Norman’s claim that the evidence was not legally sufficient to support the default judgment. We conclude that the court of appeals should have reached Norman’s legal sufficiency claim. Accordingly, we reverse the court of appeals’ judgment and remand this cause to the court of appeals for review of Norman’s legal sufficiency point of error.

A direct attack on a judgment by writ of error must: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record. See Tex. Civ. Prac. & Rem.Code § 51.013; Tex.R.App. P. 45 1 ; DSC Finance Corp. v. Moffitt, 815 S.W.2d 551 (Tex.1991). Review by writ of error affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire ease. See Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965). The only restriction on the scope of writ of error review is that the error must appear on the face of the record. See General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex.1991).

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. DSC Finance Corp., 815 S.W.2d at 551. It necessarily follows that review of the entire case includes review of legal and factual insufficiency claims. See Herbert v. Greater Gulf Coast Enter., 915 S.W.2d 866, 870 (Tex.App.—Houton [1st Dist.] 1995, no writ); Specia v. Specia, 292 S.W.2d 818, 819 (Tex.Civ.App.—San Antonio 1956, writ ref'd n.r.e.).

There is no question that Norman met the first three requirements for writ of error review. The issue to resolve is whether Norman can show error on the face of the record. Here, the court of appeals correctly found that Norman did not show error on the face of the record on its claim that it had no notice of the trial setting that led to the default judgment against it. However, the court of appeals erred in concluding that because it overruled Norman’s lack of notice point of error that it could not reach Norman’s legal sufficiency point of error. Herbert, 915 S.W.2d at 870; Specia, 292 S.W.2d at 819.

Accordingly, without hearing oral argument, the Court reverses the court of appeals’ judgment and remands the case to the court of appeals to consider Norman’s claim that the evidence is legally insufficient to support the judgment. See Tex.R.App. P. 59.1.

1

. On September 1, 1997, Rule 45 was repealed and replaced by Rule 30.