Murphy v Underhill (Tex.App. 2018) Failure to request reporter's record at trial proves fatal to subsequent appeal

Murphy v. Underhill, No. 14-17-00385-CV (Tex.App. - [14th Dist.] Jun. 14, 2018) (in the absence of reporter's record -- none was taken -- court of appeals presumes that the evidence presented at trial supports the judgment, including the denial of relief) 

TERRY MURPHY, Appellant,
v.
BILL UNDERHILL, ALLIANCE ROOFING & CONSTRUCTION, Appellee.

No. 14-17-00385-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed June 14, 2018.

Cyril-Westcott Omwirhiren, for Terry Murphy, Appellant.

Paul Kennedy, for Bill Underhill, Alliance Roofing & Construction, Appellee.

On Appeal from the County Civil Court at Law No. 2 Harris County, Texas, Trial Court Cause No. 1087643.

Affirmed.

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

MEMORANDUM OPINION

TRACY CHRISTOPHER, Justice.

In this breach-of-contract case, the plaintiff/appellee Bill Underhill d/b/a Alliance Roofing & Construction prevailed in his claim against defendant/appellant Terry Murphy in a Harris County justice court, alleging that Murphy failed to pay a 25% cancelation fee on a contract to repair Murphy's roof. After the justice court ruled in Murphy's favor, Underhill appealed to the county court at law for trial de novo. After a non-jury trial, the county court at law rendered judgment in Underhill's favor.

On appeal from the county court at law's judgment, Murphy contends that the document he and Underhill signed was not a contract but an unenforceable proposal. Murphy further contends that the trial court abused its discretion in refusing to admit into evidence a competing proposal for the work. Finally, Murphy asks that we award him attorney's fees and sanction Underhill for bringing this suit. Because the omitted portions of the reporter's record presumably support the trial court's judgment, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND^[1]

After Murphy asked Underhill to inspect his roof, Underhill told Murphy that the roof had storm damage for which Murphy may have an insurance claim. Underhill and Murphy signed an agreement under which Underhill agreed to file the claim with Murphy's insurance carrier, and Murphy agreed to let Underhill perform the work if the insurer approved the claim, with Murphy being responsible to pay only the amount of his insurance deductible. They further agreed that if Murphy's insurer approved the claim and Murphy canceled the agreement more than three days after it was signed, then Murphy himself would pay Underhill a 25% cancelation fee.

Eight days after Murphy and Underhill signed the agreement, the insurer approved the claim. More than two weeks after the claim was approved, Underhill sent Murphy an invoice for the work to be performed in accordance with the insurer's "loss sheet." When Murphy received the invoice, he immediately responded that he was canceling the agreement.

Underhill sued Murphy in a Harris County justice court to recover the agreed-upon cancelation fee. The justice court ruled in favor of Murphy, and Underhill appealed to a Harris County civil court at law. The appeal was decided by a non-jury trial de novo, and the trial court rendered judgment against Murphy for $3,465.50. At Murphy's request, the trial court rendered findings of fact and conclusions of law. The trial court's findings support the judgment the trial court rendered, nor does Murphy contend otherwise. Murphy requested amended findings of fact and conclusions of law, but the trial court issued nothing further.

II. ISSUES PRESENTED

In his first, second, and fourth issues, Murphy challenges the trial court's determination that Murphy and Underhill had an enforceable contract; we address all three of these issues together.^[2] In his third issue, he argues that the trial court abused its discretion in refusing to admit evidence of a competing proposal Murphy allegedly received in the time between signing the agreement with Underhill and receiving Underhill's invoice. Although not presented as a separate issue, Murphy asked in his prayer for relief that we award him attorney's fees and sanction Underhill on the ground that Underhill's contract claim is groundless and was brought in bad faith for the purpose of harassment. We address the request for attorney's fees and sanctions together.

III. CHALLENGES TO THE EXISTENCE AND ENFORCEABILITY OF THE CONTRACT

Although Murphy does not expressly challenge the legal or factual sufficiency of the evidence supporting any of the trial court's findings, he does ask that this court reverse the trial court's judgment and render a take-nothing judgment on Underhill's contract claim. Because he would be entitled to rendition of judgment only if the evidence were legally insufficient to support the trial court's findings, we construe this issue as a challenge to the legal sufficiency of the evidence. See Onwudiegwu v. Dominguez, No. 14-14-00249-CV, 2015 WL 4366213, *5 (Tex. App.-Houston [14th Dist.] July 16, 2015, no pet.) (mem. op.) (citing Stevens v. Travelers Ins. Co., 563 S.W.2d 223, 233 (Tex. 1978)).

To analyze the legal sufficiency of the evidence, we review the record in the light most favorable to the challenged finding, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally sufficient if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). We will conclude that the evidence is legally insufficient to support the finding only if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.

We cannot review the record of the trial in this case because no record was filed; indeed, the information sheet filed in this Court by the trial court's official court reporter reveals that no reporter's record was made. We were presented with the same situation in Dongsheng Huang v. Riverstone Residential Group (Alexan Piney Creek), No. 14-11-00009-CV, 2011 WL 6003949, at *2 (Tex. App.-Houston [14th Dist.] Dec. 1, 2011, pet. dism'd) (mem. op.). There, as here, the court reporter certified that no reporter's record of the bench trial existed. Id. We explained that, in the absence of a reporter's record, we must indulge every presumption in favor of the trial court's findings.^[3] Id. (citing Bryant v. United Shortline Inc. Assur. Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); see also Bryant,972 S.W.2d at 31 ("We indulge every presumption in favor of the trial court's findings in the absence of a statement of facts.");^[4] In re J.C., 250 S.W.3d 486, 489 (Tex. App.-Fort Worth 2008, pet. denied) (stating that, in the absence of a reporter's record, the court could not review the appellant's challenge to the sufficiency of the evidence). 

We accordingly presume that the evidence presented at trial supports the trial court's findings, and we overrule Murphy's first, second, and fourth issues.

IV. CHALLENGE TO THE EXCLUSION OF EVIDENCE

We review the trial court's exclusion of evidence for abuse of discretion. JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). We will not reverse a judgment due to the erroneous exclusion of evidence unless the ruling probably resulted in an improper judgment. Id.

In the absence of a reporter's record, we cannot say that the trial court erred in excluding the evidence or that the ruling was harmful. See Brentwood Fin. Corp. v. Lamprecht, 736 S.W.2d 836, 843 (Tex. App.-San Antonio 1987, writ ref'd n.r.e.) ("We presume that the rulings of the trial court are correct, and we will consider only matters shown by the record."). Because we must presume that a record of the trial would have supported the trial court's ruling, we overrule Murphy's third issue.

V. REQUEST FOR ATTORNEY'S FEES AND SANCTIONS

In his prayer for relief, Murphy asks that we sanction Underhill pursuant to Texas Civil Practice and Remedies section 9.012 and order Underhill to pay "Appellee's reasonable attorney fees." 

Because Murphy pleaded in the trial court for sanctions and for an order that Underhill be ordered to pay Murphy's attorney's fees, we assume that Murphy meant to request that we order Underhill to pay "Appellant's reasonable attorney's fees." Murphy sought sanctions under Texas Civil Practice and Remedies Code section 9.012 in the county court at law, and we construe this request as an appellate challenge to the county court at law's denial of this request.

Here, too, we are bound by the presumption arising from the omitted reporter's record. We must presume that a record of the trial proceedings would have supported the county court at law's refusal to award Murphy the requested relief. See Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.-Houston [14th Dist.] 1999, pet. denied) ("Where the record is ambiguous or silent, the presumption of validity will supply by implication every proof, element, factual finding, or proper application of the law needed to support the judgment.").

We accordingly reject this appellate challenge.

VI. CONCLUSION

Because we presume that a reporter's record of the trial would support the trial court's rulings, we affirm the trial court's judgment, including its failure to award Murphy attorney's fees or to sanction Underhill.

[1] We describe the facts as found by Harris County Civil Court at Law No. 2.

[2] Murphy states these issues as follows:

1. Whether a roof job proposal lacking cost of repairs submitted by Bill Underhill (Appellee) to home owner Murphy (Appellant) followed by a job estimate that was unambiguously rejected by the home owner rise to the level of an enforceable contract.

2. Whether the estimate that was sent on August 15, 2016 by Underhill which was rejected by Murphy within the hour created a contractual obligation.

. . . .

4. Whether the relationship between Underhil[l] and Murphy represent a failure of "meeting of the minds["] and the doctrine of agreement to agree.

Full capitalization omitted.

[3] We might be said to have a partial reporter's record, because the exhibits submitted at trial have been filed in the clerk's record, and the Texas Rules of Appellate Procedure treat trial exhibits as part of the reporter's record. See TEX. R. APP. P. 34.6(a) (stating that the reporter's record includes any of the trial exhibits designated by a party to the appeal). The result, however, would be the same. An appellant may request a partial reporter's record, but "must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues." TEX. R. APP. P. 34.6(c)(1). If the appellant complies with the rule, then "[t]he appellate court must presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues." TEX. R. APP. P. 34.6(c)(4). Even a late-filed statement of issues will support the presumption, absent some indication that the appellee was adversely affected by the delay. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (per curiam). But if the appellant entirely fails to submit a statement of the points or issues to be presented on appeal, "we must presume that the omitted portions of the record are relevant and would support the judgment." Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816, 822 (Tex. App.-Houston [14th Dist.] 2005, no pet.). The record before us does not contain the parties' agreement to a partial reporter's record or to a statement of the case. It also does not contain a statement of Murphy's issues to be presented on appeal. Thus, even if the trial exhibits included in the clerk's record were construed as a partial reporter's record, we still would be required to presume that the omitted portions of the reporter's record are relevant and support the trial court's judgment.

[4] What previously was called a "statement of facts" is now called the reporter's record. TEX. R. APP. P. 34 cmt. to 1997 change ("Clerk's record is substituted for transcript, and reporter's record is substituted for statement of facts throughout the rules."); see also Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 480 n.22 (Tex. 2017) (noting that a "statement of facts" is now called the reporter's record); Nejnaoui v. State, 44 S.W.3d 111, 115 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (same).

Failure to timely pay fee in county court from appeal from JP court kills the appeal, as a jurisdictional matter under amended rule, Houston COA holds in further appeal from County Court

Pichini v. Federal National Mortgage Ass'n aka FANNIE MAE, NO. 01-17-00519-CV (Tex.App. - Houston [1st Dist.] May 17, 2018)(dismissal by county court of attempted appeal from justice court affirmed)

Comment: Another quirk in the Texas judicial system. Appeals from JP courts have different deadlines and different requirements from appeals from county courts and district courts to the courts of appeals,  and - as illustrated here -- some of the differences have very harsh consequences because they are characterized as jurisdictional, leaving no room for discretion or cure.   

Opinion issued May 17, 2018

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-17-00519-CV

———————————

PETER Q. PICHINI, JR., Appellant

V.

FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE

MAE, Appellee

On Appeal from County Court at Law No. 2

Williamson County, Texas

Trial Court Case No. 17-0634-CC2

OPINION 

PETER Q. PICHINI, JR., Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee.

No. 01-17-00519-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued May 17, 2018.

Paul A. Hoefker, for Federal National Mortgage Association, a/k/a Fannie Mae, its Successors and/or Assigns, Appellee.

William B. Gammon, for Peter Q. Pichini, Junior, Appellant.

On Appeal from County Court at Law No. 2, Williamson County, Texas, Trial Court Case No. 17-0634-CC2.

Panel consists of Justices Keyes, Brown, and Lloyd.

OPINION

RUSSELL LLOYD, Justice.

Appellant Peter Q. Pichini, Jr. challenges the county court's order dismissing his appeal from the justice court's judgment entered in favor of appellee, Federal National Mortgage Association, in its forcible detainer action. 

In his sole issue, Pichini contends that the county court erred in dismissing his appeal because his failure to timely pay the filing fee did not affect the court's jurisdiction.^[1] 

We affirm.

Background

On April 6, 2017, Federal National Mortgage Association a/k/a Fannie Mae ("Fannie Mae") filed its original petition for forcible detainer in the Justice Court of Williamson County, Precinct Three, seeking to evict Pichini from the property located at 1725 Cactus Mound Drive, in Leander, Texas. On April 18, 2017, the justice court rendered judgment in favor of Fannie Mae.

On April 21, 2017, Pichini posted an appeal bond in the county court. On April 26, 2017, the county clerk sent notice to Pichini's attorney that it had received the transcript of the proceedings from the justice court and advised him that the filing fee "must be paid within 20 days upon receipt of this letter or the case will be returned to the JP Court No. 3." The record reflects that the letter was delivered on April 28, 2017. Thus, the filing fee was due no later than May 18, 2017.

After Pichini did not pay the fee as directed, the county court found that he had failed to perfect his appeal and dismissed the appeal on May 19, 2017. Pichini filed a motion to reinstate his appeal. The county court denied the motion on June 19, 2017.

Standard of Review

Subject matter jurisdiction is a legal question which we review de novo. See Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). Accordingly, we review a county court's dismissal of an appeal from a justice court under a de novo standard. See Laird v. Benton, 470 S.W.3d 572, 574 (Tex. App.-Houston [1st Dist.] 2015, no pet.).

Discussion

In his sole issue, Pichini argues that the county court erred in dismissing his appeal because his failure to timely pay the filing fee did not affect the court's jurisdiction.

Texas Rule of Civil Procedure 506.1, which governs an appeal from a justice court to a county court, provides, in relevant part, as follows:

(a) How Taken; Time. A party may appeal a judgment by filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment of Court Costs with the justice court within 21 days after the judgment is signed or the motion to reinstate, motion to set aside, or motion for new trial, if any, is denied.

. . . .

(h) Appeal Perfected. An appeal is perfected when a bond, cash deposit, or Statement of Inability to Afford Payment of Court Costs is filed in accordance with this rule.

(i) Costs. The appellant must pay the costs on appeal to a county court in accordance with Rule 143a.

TEX. R. CIV. P. 506.1. Rule 143a, entitled "Costs on Appeal to County Court," provides:

If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the [justice court] having original jurisdiction and the [justice court] shall proceed as though no appeal had been attempted.

TEX. R. CIV. P. 143a. Thus, to perfect an appeal to a county court from a justice court, an appellant must (1) file an appeal bond, cash deposit in lieu of a bond, or a sworn statement of inability to pay, and (2) pay to the county clerk, within twenty days after being notified to do so by the county clerk, the costs of appeal. TEX. R. CIV. P. 143a, 506.1; James v. Minter, No. 01-15-00876-CV, 2017 WL 631836, at *2 (Tex. App.-Houston [1st Dist.] Feb. 16, 2017, no pet.) (mem. op.). Compliance with both requirements is jurisdictional. James, 2017 WL 631836, at *2; Watkins v. Debusk, 286 S.W.3d 58, 60 (Tex. App.-El Paso 2009, no pet.); see also Martin v. Fed. Nat'l Mortg. Ass'n, No. 04-15-00233-CV, 2016 WL 1588517, at *2 (Tex. App.-San Antonio Apr. 20, 2016, no pet.) (mem. op.) ("The payment of costs after receipt of the county clerk's notice is a jurisdictional requirement").

Here, Pichini does not dispute that he failed to timely pay the filing fee in the county court. Rather, he argues that he perfected his appeal when he filed an appeal bond with the justice court and deposited funds into the registry of the court, and that his failure to pay the filing fee before the expiration of twenty days did not affect the jurisdiction of the court. His argument is without merit. As previously noted, the plain language of rule 143a mandates that, upon the expiration of the twenty-day period, Pichini's appeal be "deemed not perfected." TEX. R. CIV. P. 143a ("If the appellant fails to pay the costs on appeal from a judgment of a [justice court] within twenty (20) days after being notified to so by the county clerk, the appeal shall be deemed not perfected. . . ."); James, 2017 WL 631836 at *4; see also McGaughy v. Lamm, No. 03-99-00643-CV, 2000 WL 147649, at *2 (Tex. App.-Austin Feb. 10, 2000, no pet.) (not designated for publication) ("Rule 143a mandates that [the defendant's] appeal be `deemed not perfected'").^[2] Because Pichini did not pay the filing fee before expiration of the twenty-day period, the county court did not err in deeming Pichini's appeal not perfected and dismissing his appeal. Accordingly, we overrule his issue.

Conclusion

We affirm the county court's order dismissing Pichini's appeal.

[1] Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Third District of Texas to this Court. See Misc. Docket No. 17-9035, Transfer of Cases from Courts of Appeals (Tex. Mar. 28, 2017); see also TEX. GOV'T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases).

[2] In support of his argument, Pichini relies on Advance Imports, Inc. v. Gibson Products Co., Inc., 533 S.W.2d 168, 170 (Tex. Civ. App.-Dallas 1976, no writ) ("[W]e hold that failure to pay the [filing] fee does not affect the jurisdiction of the county court."). However, as that court noted, "[t]he trial court's order of dismissal was entered before the effective date of Tex. R. Civ. P. 143a. . . ." Id. at 171 n.1.

Corporation Can't Handle Appeal Without Properly Authorized Attorney, but ...

 Transamericana Corp. v. Braes Woods Condo Ass'n., No. 14-16-00880-CV. (Tex.App. - Houston [14th Dist.] Apr. 23, 2018) (Order threatening dismissal if no attorney appears for corporation on appeal)

NO-GO 

NO COUNTERPART OF TRCP RULE 12 

GOVERNING  MOTIONS TO CHALLENGE ATTORNEY'S AUTHORITY TO PROSECUTE SUIT ON APPEAL

Houston COA Justices disagree whether trial court's conclusion regarding attorney's lack of authority (resulting from challenged attorney's failure to file a response to Rule 12 motion) in the trial court applies on appeal. Chief Justice Frost would hold that Rule 12 of the Texas Rules of Civil Procedure should be invoked on appeal in the absence of a similar means to challenge attorney's authority under the Texas Rules of Appellate Procedure (TRAP). 

Rule 12 of the TRCP 

TRANSAMERICA CORPORATION, Appellant,
v.
BRAES WOODS CONDO ASSOCIATION INC., Appellee.

No. 14-16-00880-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Order filed April 24, 2018.  

James Okoro Okorafor, for Transamerica Corporation, Appellant.

Shawn McKee, for Braes Woods Condo Association Inc., Appellee.

On Appeal from the 129th District Court, Harris County, Texas, Trial Court Cause No. 2016-12580.

Panel consists of Chief Justice Frost and Justices Christopher and Jamison. 

(Chief Justice Frost respectfully dissents because (1) the trial court's order granting the motion to show authority addressed James Okorafor's authority to prosecute the suit on behalf of Transamerica Corporation of Houston, Inc. in the trial court in 2016; (2) this order does not address James Okorafor's authority to prosecute this appeal on behalf Transamerica in 2018; see Leonard v. Ivey, No. 14-15-00908-CV, 2016 WL 7478374, at *10 (Tex. App.-Houston [14th Dist.] Dec. 29, 2016, pet. denied) (mem. op.); (3) the proper procedure for appellee Braes Woods Condo Association, Inc. to dispute Okorafor's authority on appeal is to file a motion to show authority in this appeal, applying the procedures under Texas Rule of Civil Procedure 12 by analogy; and (4) appellee has not filed a motion to show authority in this appeal.)

ORDER

PER CURIAM.

This appeal arises from a suit filed by Transamerica Corporation of Houston against Braes Woods Condo Association seeking declaratory judgment, a temporary restraining order, and temporary and permanent injunctions. In the petition Transamerica is alleged to be a corporation owned by Yigal Bosch, who passed away on January 29, 2015. Bosch's son David Bash was named administrator of Bosch's estate and purports to bring suit on behalf of Transamerica. In the suit Transamerica is alleged to own three condominium units in the Braes Woods Condo Association. Transamerica alleged, among other things, that Braes Woods is renting the units owned by Transamerica and collecting rent. James O. Okorafor is the attorney purporting to represent Transamerica.

Braes Woods filed a counterclaim seeking to recover for breach of an agreement made under Texas Rule of Civil Procedure 11, in which Braes Woods agreed to postpone foreclosure in exchange for Transamerica's agreement to pay homeowners' association fees. The trial court granted an interlocutory summary judgment in favor of Braes Woods based on its counterclaim for breach of contract and enforcement of the Rule 11 agreement.

Braes Woods subsequently filed a plea to the jurisdiction and motion to show authority in which it asserts that Transamerica does not have standing to sue Braes Woods because it has no legally cognizable claim against Braes Woods. In the plea Braes Woods alleges that no legal entity named Transamerica Corporation of Houston exists, and that, if it did, Bash does not have authority to represent Transamerica.

Included in the plea to the jurisdiction was a motion to show authority filed under Texas Rule of Civil Procedure 12.^[1] In the motion Braes Woods alleged that James Okorafor, the attorney who purports to represent Transamerica, did not have authority to represent Transamerica in the suit. 

The trial court held a hearing on the motion to show authority. Okorafor did not respond to the motion, either in writing or orally at the hearing. The trial court granted the motion to show authority, struck Transamerica's pleadings, and noted that the court's order disposed of all claims. Okorafor filed a notice of appeal on behalf of Transamerica.

In its brief on appeal Transamerica argues that the trial court lacked subject matter jurisdiction because Transamerica no longer exists as a legal entity. Alternatively, Transamerica argues that the trial court erred in granting summary judgment to Braes Woods on its counterclaims. Neither Transamerica nor Okorafor have complained on appeal about the trial court's ruling on the motion to show authority.

Rule 12 of the Texas Rules of Civil Procedure permits any party to challenge an attorney's authority to prosecute or defend a lawsuit. Tex. R. Civ. P. 12. The rule's primary purpose is to enforce a party's right to know who authorized the suit. Angelina Cnty. v. McFarland, 374 S.W.2d 417, 422-23 (Tex. 1964). The challenged attorney must appear before the trial court to show the attorney's authority to act on behalf of the client. Tex. R. Civ. P. 12; R.H. v. Smith, 339 S.W.3d 756, 762 (Tex. App.-Dallas 2011, no pet.). At the hearing on the motion, the challenged attorney bears the burden of proof to show the requisite authority. Smith, 339 S.W.3d at 762. When resolving the motion, the trial court considers and weighs the evidence presented at the hearing. In re Guardianship of Benavides, 403 S.W.3d 370, 376 (Tex. App.-San Antonio 2013, pet. denied). A challenged attorney may satisfy the burden by producing an affidavit or testimony from the client indicating the attorney was retained to provide representation in the case. See In re Sassin, 511 S.W.3d 121, 125 (Tex. App.-El Paso 2014, orig. proceeding).

The issue before the trial court was whether Okorafor had authority to represent Transamerica in the litigation. In ruling on the motion to show authority, the trial court did not address whether Transamerica or Bash had standing to bring the suit. Okorafor presented no evidence that he had authority to represent Transamerica. Therefore, Okorafor failed to meet his burden of proof in the trial court. See Smith,339 S.W.3d at 762. On appeal, Okorafor has not challenged the trial court's ruling striking Transamerica's pleadings and finding that Okorafor does not have authority to represent Transamerica.

An appellant must challenge all independent grounds supporting the judgment or legal conclusion under attack. Akhtar v. Leawood HOA, Inc., 525 S.W.3d 814, 819 (Tex. App.-Houston [14th Dist.] 2017, no pet.). Because Okorafor and Transamerica do not challenge the ruling striking Transamerica's pleadings and finding Okorafor has no authority to represent Transamerica, we accept the unchallenged finding and are bound by the trial court's ruling. See Walker v. Schion, 420 S.W.3d 454, 457-58 (Tex. App.-Houston [14th Dist.] 2014, no pet.).

Therefore, Okorafor is not permitted to represent Transamerica in this appeal. Transamerica is before this court without representation by an attorney. Generally, corporations can appear and be represented only by a licensed attorney. Kunstoplast of Am., Inc. v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996); see Tex. R. Civ. P. 7; Unauth. Practice of Law Comm. v. Am. Home Assur. Co., 261 S.W.3d 24, 33 (Tex. 2008).

The court will consider dismissal of this appeal unless Transamerica files a response, through an attorney, on or before May 4, 2018, showing meritorious grounds to continue its appeal. See Bosch v. Harris County, No. 14-13-01125-CV; 2015 WL 971317 (Tex. App.-Houston [14th Dist.] Feb. 26, 2015, no pet.) (mem. op.) (affirming trial court's ruling on Rule 12 motion and dismissing appeal).

[1] Rule 12 provides:

A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act. The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion. At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears. The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing. Tex. R. Civ. P. 12

Just Don't Take It On Then: Heavy Workload not a good excuse multiple times in a row for not getting an appellate brief done on time

Justice Harvey Brown reminds appellate attorney that a heavy workload is no excuse not to timely complete and file a client's brief after multiple extension have already been granted in several pending cases to accommodate the attorney's time crunch issues.  

In the Interest of A. T. O. Jr., child,
v.
Department of Family and Protective Services.

No. 01-18-00173-CV.

Court of Appeals of Texas, First District, Houston.

May 2, 2018.

Appeal from the 313th District Court of Harris County, 2017-01254J.

ORDER

HARVEY BROWN, Judge.

Appellant's brief was originally due on April 18, 2018. Appellant's counsel, asserting a heavy workload, filed a motion requesting an extension of time to file appellant's brief to April 30, 2018. Our court granted the extension. On April 30, 2018, appellant's counsel filed a second motion to further extend the time for filing appellant's brief to May 11, 2018, again asserting a heavy workload.

The motion is granted with no further extensions. Counsel is reminded that a heavy workload does not constitute good cause for granting repeated motions to extend the time to file a brief. See Pena v. State, No. 07-11-00222-CR, 2011 WL 6015763, at *1 n.2 (Tex. App.-Amarillo Dec. 2, 2011, order) ("This Court does not consider a busy work schedule to constitute good cause for granting repeated motions to extend the time to file a brief.") (citing Curry v. Clayton, 715 S.W.2d 77, 79-80 (Tex. App.-Dallas 1986, no writ)).  

Counsel's second extension motion reflects that he has at least three other pending parental termination appeals, all of which have received extensions. If counsel is unable to meet statutory deadlines due to workload, then counsel should accept fewer cases rather than regularly seeking extensions. Newfield v. State, 766 S.W.2d 408, 409 (Tex. App.-Dallas 1989, order) ("A situation in which an attorney regularly requests extensions in each case submitted to this Court is unacceptable.").

It is so ORDERED.

Error in denial of pre-judgment interest as part of the judgment must be preserved for appellate review, 14th Court says

A complaint regarding the award of pre-judgment interest must be preserved in the trial court by a motion to amend or correct the judgment or by a motion for new trial. See Keith v. Keith, 221 S.W.3d 156, 173 (Tex. App.-Houston [1st Dist.] 2006, no pet.); see also Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987) (per curiam) (error regarding award of pre-judgment interest must be preserved); Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.-Houston [1st Dist.] 1990, no writ) (motion to amend or correct judgment or motion for new trial is proper vehicle for preserving error in judgment). The Nguyens failed to object to the trial court regarding the award of post-but not pre-judgment interest, and such failure waived this issue for appellate review. See Keith, 221 S.W.3d at 173; see also TEX. R. APP. P. 33.1(a)(1). We overrule the Nguyens' first issue on cross-appeal.

SOURCE: FOURTEENTH COURT OF APPEALS - No. 14-11-00126-CV - 5/17/12 (substituted opinion) (Cross-appellants argued that the trial court abused its discretion in failing to award pre-judgment interest, despite finding that they were entitled to such interest.)

Pro Se Appellant did not update his mailing address (or pay, for that matter). There goes the appeal…

Numerous appeals get dismissed because the appellant - for whatever reason - does not pay the filing fee, does not pay the court reporter, or does not pay the trial court's clerk for preparation of the appellate record (or a combination of these). The dismissal opinion in a case dissed today is routine, except for one additional twist: The unrepresented appellant apparently disappeared, or at least became unreachable. That too, can net dismissal.

 

MEMORANDUM OPINION ON DISMISSAL OF APPEAL

Appellant, [name omitted], has neither established indigence nor paid all the required fees.  See Tex. R. App. P. 5 (requiring payment of fees in civil cases unless indigent), 20.1 (listing requirements for establishing indigence); see also Tex. Gov’t Code Ann. § 51.207 (Vernon Supp. 2011), § 51.941(a) (Vernon 2005), § 101.041 (Vernon Supp. 2011) (listing fees in court of appeals); Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals and Before the Judicial Panel on Multidistrict Litigation, Misc. Docket No. 07-9138 (Tex. Aug. 28, 2007), reprinted in Tex. R. App. P. App. A § B(1) (listing fees in court of appeals).  On May 27, 2011, the Court notified appellant that the appeal was subject to dismissal if he did not respond within 10 days.  See Tex. R. App. P. 5 (allowing enforcement of rule); 42.3(c) (allowing involuntary dismissal of case).  The notice was returned as undeliverable.

  

A pro se appellant is required to keep this Court apprised of his current mailing address.  See Tex. R. App. P. 6.3(c), 9.1(b). 

  

Because appellant has failed to pay the filing fee and has failed to comply with the Rules of Appellate Procedure, we dismiss the appeal.  See Tex. R. App. P. 5, 9.1(b), 37.3(b), and 42.3(b), (c).  We dismiss any pending motions as moot.

 
PER CURIAM
 
Panel consists of Justices Bland, Massengale, and Brown.
SOURCE: HOUSTON COURT OF APPEALS - 01-11-00291-CV - 5/17/12
  

Pro se appellant told what's wrong with special writ petition

Court of Appeals tells pro se litigant what's wrong with his petition for a special writ. (They don't always do that, but issue one-liner or one-sentence "opinions" instead)


Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Floyd Pleasant Tarvin, IV, has filed a pro se “Application and Petition for Writ of Procedendo Pursuant to Texas Rule of Appellate Procedure 72.” Relator asks this court to direct respondent[1] to rule on his application for “writ of coram vobis,” pertaining to relator’s underlying civil suit.[2]

Rule of Appellate Procedure 72, to which appellant cites, applies to proceedings in the Texas Court of Criminal Appeals. See Tex. R. App. P. 72. In a civil suit, as here, Texas Government Code section 22.002(a) specifically grants the Supreme Court of Texas the power to issue a writ of procedendo. See Tex. Gov’t Code Ann. § 22.002(a) (Vernon Supp. 2011). This court’s statutory general writ power, however, is limited to “writ[s] of mandamus and all other writs necessary to enforce the jurisdiction of the Court.” See Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004). Relator has not established that the writ he seeks is necessary to enforce our jurisdiction.

We construe relator’s petition as a petition for writ of mandamus because, in substance, relator seeks to compel the trial court to rule on his application. See In re Alpert, 276 S.W.3d 592, 595 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (noting that ruling upon motion is ministerial act and that mandamus may issue to compel trial court to act); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (acknowledging duty to liberally construe petition of party acting pro se to determine merits of complaints).

Mandamus will issue “only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). To show entitlement to mandamus relief, a relator must satisfy three requirements: (1) the lower court must have a legal duty to perform a nondiscretionary act, (2) the relator must make a demand for performance, and (3) the trial court must refuse that request. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). Specifically, to establish that the trial court abused its discretion by failing to rule, a relator must show that the trial court received his application, was aware of it, was asked to rule, and failed or refused to do so. See Barnes, 832 S.W.2d at 426. Here, relator has not provided us with a record showing that the trial court received his application, was aware of it, was asked to rule, and refused to rule. See id.

Furthermore, relator’s petition does not comply with Rule of Appellate Procedure 52.3. See, e.g., Tex. R. App. P. 52.3(k) (requiring “certified or sworn copy of any order complained of, or any other document showing the matter complained of”).

Accordingly, we deny the petition for writ of mandamus. All pending motions are dismissed as moot.

PER CURIAM

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[1] Respondent is the Honorable Dan Hinde of the 269th District Court, Harris County, Texas.

[2] The underlying case is Floyd Pleasant Tarvin, IV v. Charles Bacarisse, No. 2009-29985, 269th Dist. Court (Harris County, Texas).

In re Floyd Pleasant Tarvin IV, No 01-11-01127-CV (Tex.App.- Houston [1st Dist.] April 23, 2012) (per curiam)
Panel consists of Justice Keyes, Justice Bland, and Justice Sharp.

Appeal from 269th District Court of Harris County (Judge Dan Hinde)

Are res judicata and collateral estoppel one and the same?

  
Court of appeals says res judicata and collateral estoppel are separate and distinct bases for summary judgment. Therefore, if the trial court grants summary judgment on both (or does not say which), the appellant may lose on appeal if he or she focuses only on one ground, but neglects to challenge and brief the other. In a case in which the First Court of Appeals issued a new opinion (on motion for rehearing) today, it would not have made a difference. But next time, it may.


McSchaffry v. Amegy Bank NA (Tex. App. - Houston [1st Dist.] Dec. 15, 2011, no pet. h.)(Opinion by Justice Jane Bland)

Mark McShaffry v. Amegy Bank National Association; Amegy Corporation; LBM-Jones Road, L.P; LBM-Jones Road GP, Inc; WDJ Management, LLC; Gerald Peter Jacob and Lee Gittleman -- Appeal from 125th District Court of Harris County (Hon. Kyle Carter)

EXCERPT FROM OPINION ON MOTION FOR REHEARING BY JUSTICE BLAND

When multiple grounds for summary judgment exist and the trial court does not specify the ground on which it granted summary judgment, an appellant must negate on appeal all possible grounds. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If the appellant fails to negate each possible ground upon which the judgment may have been granted, an appellate court must uphold the summary judgment. See Ellis, 68 S.W.3d at 898. An appellant also may assert a general complaint that the trial court erred in granting summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). McShaffry, however, makes no such assertion.

LBM moved for summary judgment against McShaffry on the grounds of res judicata and collateral estoppel. Res judicata and collateral estoppel are independent affirmative defenses. Because the order granting summary judgment did not specify the particular grounds on which it was rendered; McShaffry must defeat each of these grounds. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Res judicata has been used as a broad term for the related concepts of claim preclusion (res judicata) and issue preclusion (collateral etoppel). Barnes v. United States Parcel Serv., Inc., No. 01-09-00648-CV, 2010 WL 6808024, at *4 (Tex. App. Houston—[1st Dist.] June 23, 2011); see Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). However, within this doctrinal umbrella there are two distinct legal theories—namely res judicata and collateral estoppel. Barr, 837 at 628. Res judicata prevents the relitigation of a claim or cause of action that has been finally adjudicated in a prior lawsuit. Id. Collateral estoppel, or issue preclusion, prevents relitigation of a fact issue resolved in a prior dispute. Id. Although claim preclusion and issue preclusion are related concepts, each provides a distinct affirmative defense. Therefore, McShaffry must negate on appeal both grounds upon which the trial court’s judgment may have been granted.

We conclude that McShaffry has not briefed the alternative ground of collateral estoppel. See Williams v. Crum & Forster Commercial Ins., 915 S.W.2d 39, 42–43 (Tex. App.—Dallas 1995) (noting that issue is waived when appellant fails to cite legal authority in support of issue, as required by rules of appellate procedure, and thereby affirming summary judgment because appellant had not properly challenged each ground asserted in support of summary judgment), rev’d on other grounds, 955 S.W.2d 267 (Tex. 1997). McShaffry confines his appeal to res judicata, asserting that “[t]he trial court erred in granting Appellees’ res judicata Motion for Summary Judgment because McShaffry did not have a claim against Appellees until after the trial court entered a Judgment resolving all claims against all parties in the previous lawsuit.” McShaffry offers no legal analysis, argument, citations to the record, nor any authorities to support his contention on appeal that his claims are not barred by collateral estoppel. See TEX. R. APP. P. 38.1(h). Because the trial court could have granted summary judgment on the basis that McShaffry’s claims were barred by either res judicata or collateral estoppel, and McShaffry did not brief the collateral estoppel ground, we must affirm the summary judgment. See Ellis, 68 S.W.3d at 898; Iglesia Hispana Nueva Vida Houston, Inc. v. Rosin, No. 01-06-00048-CV, 2007 WL 1633723, at *3 (Tex. App.—Houston [1st Dist.] June 7, 2007, no pet.) (mem. op.) (affirming summary judgment on collateral estoppel because appellant did not address it as possible ground for trial court’s summary judgment ruling); McIntyre v. Wilson, 50 S.W.3d 674, 681–82 (Tex. App.—Dallas 2001, pet. denied) (upholding summary judgment because trial court could have granted summary judgment on ground that appellant failed to adequately brief, by offering no discussion on issue, making passing reference to ground in other issues, and citing generally to law review article).

Nonetheless, we conclude that the trial court properly granted summary judgment based on res judicata. Res judicata prevents parties and those in privity with them from relitigating a case that a competent tribunal has adjudicated to finality. Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999). Res judicata bars claims or defenses that could have been litigated in the earlier suit but were not. Id. at 206–07. “The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy.” Id. at 207. Under the doctrine of res judicata, a party is precluded from litigating a claim in a pending action if: (1) in a previous action, a court of competent jurisdiction rendered a final determination on the merits of a claim; (2) the parties that litigated the prior claim are identical to or in privity with the parties litigating the pending claim; and (3) the pending claim (a) is identical to the prior claim or (b) arises out of the same subject matter as the prior claim and could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Judgments—except judgments void for lack of jurisdiction—are not subject to collateral attack; they may only be challenged on direct attack by appeal. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). A collateral attack, unlike a direct attack, seeks to avoid the effect of a judgment in a later proceeding not instituted for the purpose of modifying or vacating the judgment, but instituted in order to obtain some relief that the judgment currently stands as a bar against. Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.—Austin 2006, no pet.) (holding that wife’s suit based on fraud claim was collateral attack on prior judgment); see Kendziorski v. Saunders, 191 S.W.3d 395, 408 (Tex. App.—Austin 2006, no pet.) (“A collateral attack . . . ‘is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose.’”) (quoting Employers Cas. Co. v. Block, 744 S.W.2d 940, 943 (Tex. 1988)). “[T]he prohibition against collateral attack extends to claims that false swearing or fraud of a party to the judgment renders it voidable.” In re Cantu, 961 S.W.2d 482, 486 (Tex. App.—Corpus Christi 1997, no writ) (citing Glenn v. Dallas Cnty. Bois D’Arc Island Levee Dist., 268 S.W. 452 (Tex. 1925); Kaphan v. Fid. & Deposit Co. of Md., 564 S.W.2d 459, 462 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.)).

McShaffry sued LBM alleging that LBM interfered with a contract between McShaffry, Brindsen and Gerow by settling with Brindsen and assigning the county court judgment to him. McShaffry also alleged that LBM engaged in fraud by procuring false testimony in the county court. According to McShaffry, Brindsen paid LBM to settle the breach of commercial lease claim in exchange for LBM’s participation in a county court trial. LBM then assigned the resulting judgment to Brindsen so that Brindsen could obtain more money from McShaffry than he could have under their agreement. In all material respects, McShaffry’s claims in this case attack the judgment against him in the county court, because each of them stems from allegations that LBM obtained perjured testimony, with Brindsen’s help, in the earlier suit. McShaffry was a party to the suit, but chose not to appear at the trial. McShaffry’s claims present a collateral attack on the county court judgment: they are in substance claims that the county court proceedings were intrinsically fraudulent. But he makes no showing that he could not raise have raised these claims before the county court, during the proceeding to which he was a party. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (holding that bondholders’ claims that directors fraudulently undervalued company in earlier bankruptcy proceeding were intrinsic to bankruptcy court’s order and collateral attack on the judgment); see also Henderson, 208 S.W.3d at 550 (holding that wife’s suit based on claims her ex husband and lawyers fraudulently mischaracterized property was collateral attack on prior judgment). Because McShaffry’s claims represent an attack on the integrity of the county court proceedings—proceedings that involved the same nucleus of operative facts and to which he was a party—his claims present an impermissible collateral attack and are res judicata. [1] See Browning, 165 S.W.3d at 346; see also Henderson, 208 S.W.3d at 550.

Conclusion

We conclude that the trial court’s judgment, as based on collateral estoppel grounds, was not challenged on appeal; the judgment may stand on this basis alone. Further, the trial court properly granted summary judgment based on the affirmative defense of res judicata. Accordingly, we affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Order denying free appeal not appealable

MEMORANDUM OPINION

This is an attempted appeal from an order sustaining a contest to appellant’s affidavit of indigence for trial court costs and ordering that appellant pay the costs of his suit in the trial court. 

Generally, appeals may be taken only from final judgments.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  Interlocutory orders may be appealed only if authorized by statute.  Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001).

The trial court’s order sustaining the district clerk’s contest to appellant’s affidavit of indigence is an interlocutory order.  Appellant cites no authority, and we have found none, providing for an interlocutory appeal to be taken from this order.  See generally Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (West 2008); see, e.g., Minnfee v. Lexington, No. 04-09-00770-CV, 2010 WL 381367, at *1 (Tex. App.—San Antonio Feb. 3, 2010, no pet.) (mem. op.) (dismissing appeal of order on motion to rule for costs); Aguilar v. Texas La Fiesta Auto Sales LLC, No. 01-08-00653-CV, 2009 WL 1562838, at *1 (Tex. App.—Houston [1st Dist.] June 4, 2009, no pet.) (mem. op.) (dismissing appeal of order sustaining contest to affidavit of indigence for trial court costs).

On September 8, 2011, the Court notified the parties of its intent to dismiss the appeal for want of jurisdiction unless appellant filed a response demonstrating this court’s jurisdiction on or before September 19, 2011.  See Tex. R. App. P. 42.3(a). Appellant has not filed an adequate response.

Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).  We dismiss any other pending motions as moot. 

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

SOURCE: OPINION FROM HOUSTON COURT OF APPEALS - NO. 01-11-00669-CV - 12/8/2011  

Intermediate court of appeals says it has no habeas corpus jurisdiction in criminal case

A court of appeals does not have original jurisdiction over habeas corpus proceedings in criminal matters.  Chavez v. State, 132 S.W.3d 509, 510 (Tex. App.—Houston [1st Dist.] 2004, no pet.); cf. TEX. GOV’T CODE ANN. § 22.221(d) (Vernon 2004) (granting jurisdiction over civil proceedings).  

Jurisdiction to grant post-conviction habeas corpus relief in felony cases rests exclusively with the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (Vernon Supp. 2011); Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re McAfee, 53 S.W .3d 715, 717–18 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Therefore, we are without jurisdiction to grant the requested relief. 

          

Accordingly, we dismiss for want of jurisdiction.

FIRST COURT OF APPEALS - NO. 01-11-01044-CR - 12/2/2011  (habeas corpus in civil case vs. criminal case)