Summary
treating untimely filed appeal after default judgment as a restricted appeal
Summary of this case from Yezak v. StateOpinion
No. 14-11-00079-CV
Opinion filed December 13, 2011.
On Appeal from the County Civil Court at Law No. 2, Harris County, Texas, Trial Court Cause No. 957542.
Panel consists of Chief Justice HEDGES and Justices BOYCE and CHRISTOPHER.
MEMORANDUM OPINION
In this restricted appeal, Poul Nielsen challenges the summary judgment against him and in favor of Chase Bank USA, NA on the latter's breach-of-contract claim. Because no error is apparent on the face of the record, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Chase Bank USA, NA sued appellant Poul Nielsen for breach of a written contract. According to a docket-sheet entry, the case originally was set for trial on October 4, 2010. Although the record does not show that the case was dismissed, the claims nonsuited, or the trial rescheduled, the record does not indicate that any proceedings held on this date resulted in a judgment or order.
Absent a request from the litigants, the clerk of the trial court is not required to include in the appellate record any motion for continuance or any order continuing or establishing a trial setting unless the order itself is the subject of the appeal. TEX. R. APP. P. 34.5(a). No such requests were made here.
On October 29, 2010, Chase filed a traditional motion for summary judgment supported by Nielsen's answers to requests for admission. Nielsen did not respond to the motion, which was heard by submission on December 3, 2010. The trial court signed the summary judgment against Nielsen on December 6, 2010, awarding Chase $19,541.07 in damages, attorney's fees of $500.00, and pre-and post-judgment interest.
Nielsen filed his original notice of appeal on January 24, 2011, and in response to an order of this court, amended the notice two months later to cure its defects. Although he asserts on appeal that he first learned of the judgment against him approximately forty-eight days after it was signed, Nielsen did not file a sworn motion in the trial court to establish the date on which he received the notice of the judgment or acquired actual knowledge that it had been signed. See TEX. R. APP. P. 4.2 (extending the time for filing a notice of appeal if, in accordance with Texas Rule of Civil Procedure 306a.5, the appellant establishes the facts constituting late notice); TEX. R. CIV. P. 306a.5 (litigant must file a sworn motion and prove that the date on which he or his attorney first received the notice of judgment or actually learned that it had been signed was more than twenty days after the date of signing). Because Nielsen failed to take the steps necessary to extend the time to perfect a regular appeal, we treat this as a restricted appeal.
II. STANDARD OF REVIEW
To prevail in a restricted appeal, the appellant must establish that (1) he filed a notice of the restricted appeal within six months after the judgment was signed, (2) he was a party to the underlying lawsuit, (3) he neither participated in the hearing that resulted in the judgment complained of nor timely filed any postjudgment motion or request for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). In this appeal, only the fourth element is disputed.
III. ANALYSIS
Nielsen's entire appellate argument consists of the following two sentences:
No judgment should have been made on December 6th 2010 since I, on October 4th 2010, was informed by the Harris County Civil Court Clerk that this case No. 957542 was dismissed. In addition, there was no notification to me from the Harris County Civil Court that a hearing was scheduled for this case No. 957542.
As to his first point, the record shows that Nielsen first made this assertion in his notice of appeal, to which he attached an unauthenticated copy of the trial court's order setting the case for trial on October 4, 2010. An illegible word has been handwritten on the document, and appellant asserts that the word is "dismissed" and that it was written on appellant's copy of the order by the clerk of the trial court on October 4, 2010. This does not establish that the alleged miscommunication occurred, but more importantly, Nielsen cites no authority for his apparent assumption that he was entitled to rely on such a representation even after Chase served Nielsen with a dispositive motion and a notice that the motion would be heard in December 2010. Nielsen's first complaint therefore is waived. See TEX. R. APP. P. 38.1(i) (appellate argument must be supported by citations to authorities and to the record).
Nielsen's second point apparently is based on the mistaken belief that the clerk of the trial court was required to notify him that the summary-judgment motion was set for hearing, but the trial-court clerk has no such duty. As the summary-judgment movant, this instead was Chase's responsibility, and the record shows that Chase fulfilled it. Its summary-judgment motion and its notice of hearing by submission incorporate certificates of service indicating that they were served on Nielsen by regular and certified mail on October 29, 2010. Such certificates are prima facie evidence of the fact of service. TEX. R. CIV. P. 21b. Although such evidence can be controverted after judgment, the appropriate method to do so "is by motion for new trial or by bill of review filed in the trial court so that the trial court has the opportunity to consider and weigh factual evidence." Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per curiam). Nielsen, however, offered no evidence to the contrary, we presume that the certificate of service is correct.
IV. CONCLUSION
Because no error is apparent on the face of the record, we overrule the issues presented and affirm the trial court's judgment.