Court of Appeals of Texas, Beaumont.

LYLE McBRIDE, Appellant

v.

CONTINENTAL INSURANCE CO., Appellee

No. 09-95-042CV.

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Submitted on June 20, 1996.

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Opinion Delivered Dec. 5, 1996.

OPINION

CARR, Justice.¹

*1 This is an appeal by writ of error attacking that portion of a final judgment granted on Appellee’s, Continental Insurance Co., Motion to Transfer Venue, which, in addition, dismissed Appellant’s, Lyle McBride, lawsuit for want of subject matter jurisdiction.

McBride filed suit in Jefferson County, Texas, on May 5, 1993, alleging his entitlement to workers’ compensation benefits pursuant to the Texas Workers’ Compensation Act. On June 2, 1993, appellee filed its Motion to Transfer Venue and Original Answer. The basis of Appellee’s Motion to Transfer Venue was the mandatory venue provision of the Texas Workers’ Compensation Act, which instructs that suit shall be brought in the county where the injury occurred or in the county where the employee resided at the time the injury occurred. Tex.Rev.Civ. Stat. Ann. art. 8307, § 5 (Vernon 1967 & Supp.1989). Appellee alleged that the injury in question occurred in Bartlesville, Oklahoma, while Lyle McBride resided in Bartlesville, Oklahoma; therefore, venue in Jefferson County was improper.

On September 28, 1993, Donald F. Lighty, trial counsel for appellee, sent a letter to Frank Adams, trial counsel for McBride. In that letter, Lighty stated that he had been informed by McBride’s office that McBride had no objection to the Motion to Transfer and that Lighty was waiting for a written confirmation from McBride before he could notify the court. On May 24, 1994, Mr. Lighty sent out letters advising that a hearing was scheduled on Appellee’s Motion to Transfer Venue. On July 19, 1994, Mr. Lighty sent out another letter confirming that the hearing on the Motion to Transfer Venue was rescheduled per the court’s request. On July 25, 1994, Mr. Adams sent the court a letter advising that he did not oppose the Motion to Transfer Venue and would not therefore, appear at the Motion to Transfer Venue hearing. The record reflects that all of the correspondence between trial counsel concerned only transferring venue. On July 28, 1994, the trial court granted the request to transfer venue but in addition dismissed the case for want of subject matter jurisdiction. On August 1, 1994, the court entered final judgment reflecting its July 28, 1994 order.

The dispositive issues this writ of error appeal presents are whether (1) the trial court erred in dismissing appellant’s lawsuit for want of subject matter jurisdiction because appellant did not receive notice of the hearing on the jurisdiction issue [point of error one]; and, (2) this Court erred in denying Appellee’s Motion to Dismiss Appeal for Want of Jurisdiction because appellant participated in the trial of this case and error is apparent from the record [cross point one].

Both federal and state case law support the proposition that notice is fundamental to due process. See In re Faden, 170 B.R. 304, 308 (S.D.Tex.1994), aff’d, 96 F.3d 792 (5th Cir.1996), wherein the court reasoned that:

An adjudication that purports to determine the rights of adverse parties will not be accorded finality unless all affected individuals are given notice reasonably calculated to apprise them of the pendency of the proceeding and the scope of their rights, together with information sufficient to provide them with an opportunity to prepare and present a response. [citations omitted.] This two part requirement-notice reasonably calculated both to reach the parties and to enable them to respond rationally-is a necessary corollary to the more fundamental requisite of due process that each party be given an opportunity to be heard.

*2 In Green v. McAdams, 857 S.W.2d 816, 819 (Tex.App.-Houston [1st Dist.] 1993, no writ), the Court stated that: “A fundamental element of due process is adequate and reasonable notice of proceedings.”

WRIT OF ERROR PROCEEDINGS

The four elements necessary for a review by writ of error are: (1) the petition must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) error must be apparent from the face of the record. Tex.R.App. P. 45; See Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985). It is undisputed that McBride timely petitioned for writ of error review and that he was a party to the suit. The issues presented here are whether he participated in the trial and whether error appears on the face of the record.

As stated by our Texas Supreme Court:

An appeal by writ of error is typically an appeal of a default judgment, in which participation is rarely a disputed issue. The question becomes more difficult when a party participates in some but not all of the proceedings in the trial court. The nature and extent of participation that precludes appeal by writ of error in any particular case is a matter of degree because trial courts decide cases in a wide variety of procedural settings … As some courts have aptly phrased it, the question is whether the appellant has participated in “the decision-making event” that results in judgment adjudicating the appellant’s rights.

Texaco, Inc. v. Central Power and Light Co., 925 S.W.2d 586, 589 (Tex.1996) (citations omitted).

In the instant case, the record reflects all of the correspondence and communications between counsel for appellant and counsel for appellee and between respective counsels and the trial court dealt exclusively with transferring venue. The record reflects no communications between counsel about the question of subject matter jurisdiction or that the issue of subject matter jurisdiction would be part of the proceedings on July 28, 1994.

In the case of In re Faden, the court established a two-pronged requirement for determining the reasonableness of notice. The court said the notice must (1) apprise [parties] of the pendency of proceedings and scope of their rights; and (2) provide them with sufficient information to prepare and present a response. Faden, 170 B.R. at 308. Clearly the communications and correspondence between counsel for appellant and counsel for appellee did not satisfy this requirement. It is clear from the record that counsel for appellant believed that on July 28, 1994, the only issue that the court would consider was transferring venue. To that issue, and that issue alone, the record is clear that counsel for appellant had no objections.

We conclude that it is clear from the face of the record that counsel for appellant was not aware and did not know that the matter of dismissal for want of subject matter jurisdiction would be addressed by the trial court at the July 28, 1994 Motion to Transfer Venue hearing. As a result, appellant did not participate in “the decision making event” that resulted in that portion of the judgment dismissing his law suit. Texaco, 925 S.W.2d at 589.

*3 Because we grant appellant’s first point of error and deny appellee’s sole cross point we need not address appellant’s second point of error.

That portion of the judgment dismissing appellant’s cause for want of subject matter jurisdiction is reversed and remanded; in all other matters the judgment is affirmed.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART.

	Footnotes
1		The Honorable Ron Carr, sitting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1988).