Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Convergence Aviation, Inc. v. Onala Aviation, LLC

Court of Appeals of Texas, Fifth District, Dallas

January 2, 2020

CONVERGENCE AVIATION, INC. AND CONVERGENCE AVIATION, LTD., Appellants
v.
ONALA AVIATION, LLC, Appellee

          On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-06541

          Before Justices Myers, Schenck, and Carlyle

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         Convergence Aviation, Inc. (Convergence Inc.) and Convergence Aviation, Ltd. (Convergence Ltd.), bring a restricted appeal from the default judgment in favor of Onala Aviation, LLC. Appellants bring two issues on appeal contending the trial court erred by granting the default judgment because (1) appellants were not properly served; and (2) Onala's suit was barred by res judicata. We conclude appellants have failed to show error on the face of the record, and we affirm the trial court's judgment.

         BACKGROUND

         According to Onala's first amended petition, in 2008, an engine on a Piper aircraft suffered an in-flight failure. Onala and Convergence Inc. brought suit in Illinois against several parties related to the incident. That suit concluded in 2014 with Convergence Inc. receiving substantial sums. Meanwhile, in 2008, Onala and Convergence Inc. entered into an agreement for Onala to purchase the aircraft and for Convergence Inc. to repair the aircraft and deliver it to Onala with a certificate of airworthiness. Onala paid Convergence Inc. at least $350, 000. When Convergence Inc. failed to repair the aircraft or deliver it Onala, Onala brought this suit. Onala's first amended petition brought one claim for breach of contract against appellants alleging appellants anticipatorily breached the contract by not repairing the aircraft to an airworthy condition and by not delivering title for the aircraft engine to Onala. Onala prayed for damages, an order that title to the aircraft engine be transferred to Onala, and judgment for possession of the engine.

         In the motion for default judgment, Onala stated it paid appellees more than $396, 000 for the aircraft and that the cost to repair the aircraft to an airworthy condition would be $580, 000.

         Onala served appellants through the Texas Secretary of State. The certificates of service from the Secretary of State say that copies of the citation and the original petition were forwarded to appellants at their address on Market Street in Wilmington, Delaware, and that the process was returned bearing the notation, "Return to Sender, Not Deliverable as Addressed, Unable to Forward." Onala moved for a no-answer default judgment against appellants, which the trial court granted on July 16, 2018. The default judgment orders that Onala recover damages of $580, 000 from Convergence Inc., declares that Onala is the owner of the aircraft engine, and orders Convergence Inc. to deliver title to the engine to Onala. On January 14, 2019, appellants filed notice of restricted appeal.

         RESTRICTED APPEALS

To prevail on a restricted appeal, the appellant must show:
(1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record.

Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Tex. R. App. P. 26.1(c), 30. In this case, the record establishes the first three elements. We must determine whether appellants met the fourth element, that "error is apparent on the face of the record." Alexander, 134 S.W.3d at 848.

         Before determining whether appellants have shown that error is apparent on the face of the record, we must determine what documents constitute "the record" subject to review for error. Specifically, we must determine whether the documents appellants attached to their notice of restricted appeal and documents in this clerk's record from another case with a different cause number constitute part of "the record" reviewed for error. These documents were not presented to the trial court before the court signed the default judgment, and they were not filed in this case until after the trial court lost plenary power to set aside the default judgment. See Tex. R. Civ. P. 329b(d).

         Appellants assert that the face of the record "consists of all of the papers on file in the appeal." This is nearly verbatim to what the supreme court stated in Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam): "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." This Court has quoted that statement in many opinions. See, e.g., Sims v. Dallas Cty., No. 05-18-00712-CV, 2019 WL 2004054, at *1 (Tex. App.-Dallas May 7, 2019, pet. denied) (mem. op.); Dallas Cty. Constable Precinct 5 v. KingVision Pay-Per-View, Ltd., 219 S.W.3d 602, 611 (Tex. App.-Dallas 2007, no pet.). However, after Norman, both the supreme court and this Court have concluded that this statement about the record in a restricted appeal does not allow an appellate court to consider documents that were not before the trial court when it rendered the default judgment. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848-49 (Tex. 2004); MG Int'l Menswear, Inc. v. Robert Graham Designs LLC, No. 05-18-00517-CV, 2019 WL 642724, at *2 (Tex. App.-Dallas ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.