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Taylor v. Perricone

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Aug 16, 2017
NO. 03-16-00331-CV (Tex. App. Aug. 16, 2017)

Opinion

NO. 03-16-00331-CV

08-16-2017

Kent Taylor, Appellant v. Tana Perricone and Stephen Perricone, Appellees


FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NO. 18953 , HONORABLE PHILLIP ZIEGLER, JUDGE PRESIDING MEMORANDUM OPINION

Kent Taylor appeals a final summary judgment awarding damages on claims asserted against him by the appellees, Tana and Stephen Perricone. We will affirm the judgment.

BACKGROUND

The underlying litigation stems from the Perricones' purchase of two lots (Lots 2 and 3) in the Sheerbaum Platz Subdivision in Llano County. They alleged that Taylor, the subdivision's developer, had (i) knowingly misrepresented that the subdivision roads would be built in compliance with county regulations, when in fact they were not, (ii) attempted, without the Perricones' consent or right to do so, to use a private road across Lot 2 to access tracts of land outside the subdivision, and (iii) advertised these outside tracts as accessible through use of the unauthorized road across their Lot 2. The Perricones sought relief that included actual and additional damages and attorney's fees under the Deceptive Trade Practices Act.

Taylor was eventually served through substituted service, and he obtained counsel who filed an answer on his behalf. Subsequently, the parties' respective counsel signed and filed with the district court a Rule 11 agreement that purported to settle the lawsuit. Under the terms of the agreement, Taylor would "bring the roads in [the subdivision] up to the standards as specified in the Llano County Subdivision Regulations" and re-route the road "so as to eliminate the encroachment of the road onto Lot 2 outside of the road easement." These tasks were to be completed by September 1, 2015, subject to weather-related extensions. Taylor did not comply with those terms, however, and on September 1 his counsel moved to withdraw from the representation, citing "a fundamental miscommunication" related to the Rule 11 agreement. The motion included a last known address for Taylor, and Taylor evidenced his consent to the motion by signature. The district court granted counsel's withdrawal, and Taylor has acted pro se ever since.

Counsel represented to the district court that Taylor had agreed to the settlement following extensive negotiations, only to renege as the September 1 deadline drew near. Taylor disputes this account in his appellate briefing, claiming that he had never authorized the agreement made on his behalf.

The Perricones, through their counsel, subsequently filed a motion for summary judgment on their claims. Taylor did not file a response. Following a hearing at which Taylor did not appear, the district court signed a final judgment awarding the Perricones $465,425.00, which included DTPA treble damages, mental anguish damages, and attorney's fees. This appeal ensued.

ANALYSIS

The chief thrust of Taylor's appellate briefing is to assert, without citing any support in the record, that he did not receive notice of the summary-judgment hearing, nor timely notice of the judgment. Taylor fails to present arguments that would translate to a basis for reversal under the governing substantive law and procedural framework.

Although Taylor is a pro se litigant, we are bound to apply the same substantive and procedural standards to him as we do with litigants represented by counsel, lest we afford him an unfair advantage merely because he is pro se. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).

As a threshold matter, Taylor has perfected only a restricted appeal from the final summary judgment. That judgment was signed on November 20, 2015, and Taylor did not file his notice of appeal until May 16, 2016, which is just inside the six-month window for filing a restricted appeal, but long after the expiration of any applicable deadline for perfecting an ordinary appeal. In his appellate briefing, Taylor asserts that he did not receive actual notice of the judgment until February 1 or 2, 2016. Assuming this was so, Taylor could have filed a motion under Rule of Civil Procedure 306a(5) to reset the clock for purposes of calculating the period for him to file post-judgment motions. He did not attempt to do so. Accordingly, Taylor has invoked our jurisdiction only if we consider his appeal to be a restricted appeal.

See id. R. 26.1 (requiring that "notice of appeal must be filed within 30 days after the judgment is signed," subject to certain enumerated exceptions that include "90 days after the judgment is signed if any party timely files . . . a motion for new trial"). While Taylor did file a "motion for new trial" (among other filings in opposition to the judgment and the Perricones' attempts to collect on it), the motion was not timely—Taylor filed it in mid-February, well after the thirty-day deadline for post-judgment motions and the corresponding expiration of the district court's plenary power. See Tex. R. Civ. P. 329b(a), (d), (f).

See Tex. R. Civ. P. 306a(5); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001) (per curiam) (approving prior holdings from intermediate courts of appeals that "Rule 306a(5) does not prohibit a motion from being filed at any time within the trial court's plenary jurisdiction measured from the date determined under Rule 306a(4)").

"The Texas Rules of Appellate Procedure allow a party who did not participate in the hearing that resulted in the judgment to file a restricted appeal, which has a more lenient filing deadline than a traditional appeal." To prevail in a restricted appeal, the filing party must prove: (1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Only the fourth element—error "apparent on the face of the record"—is in question here. "The 'record' for these purposes consists of all the papers before the trial court at the time the judgment was rendered; as such, the scope of appellate review is the same as with an ordinary appeal." However, the standard of appellate review "is more restrictive than with an ordinary appeal . . . in that the reviewing court does not draw any inferences or presumptions from the record, but must look to the face of the record itself."

Pike-Grant v. Grant, 447 S.W.3d 884, 884 (Tex. 2014) (per curiam) (citing Tex. R. App. P. 30).

Id. at 886 (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004)).

Regarding the "non-participation" element, Taylor's untimely post-judgment motions in the district court do not preclude his restricted appeal here. See id. (noting that non-participation element requires filing party to prove that he "did not timely file any post-judgment motions or requests for findings of fact and conclusions of law" (emphasis added)); Maan v. First ATM, Inc., No. 03-06-00698-CV, 2008 Tex. App. LEXIS 9279, at *10 (Tex. App.—Austin Dec. 12, 2008, no pet.) (mem. op.) ("[P]articipation is to be construed liberally in favor of a right to appeal." (citing Davenport v. Scheble, 201 S.W.3d 188, 196 (Tex. App.—Dallas 2006, pet. denied) (citing Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985)))). In addition, notwithstanding the Perricones' contention that Taylor chose not to participate, "'[i]t is the fact of nonparticipation, not the reason for it,'" that determines his right to a restricted appeal. Maan, 2008 Tex. App. LEXIS 9279, at *10 (quoting, inter alia, Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996)).

Champion v. Estlow, 456 S.W.3d 363, 364 (Tex. App.—Austin 2015, pet. denied) (citing Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 559 (Tex. App.—Austin 2004, no pet.)).

Id. (citing Alexander, 134 S.W.3d at 849-50).

Although arguing that he did not receive notice of the summary-judgment hearing, Taylor does not explain how any such error is apparent on the face of the record. On the contrary, the record before the district court when it ruled reflects that the Perricones served their summary-judgment motion and notice of hearing to Taylor, via certified mail, return receipt requested, at the street address and zip code that corresponded to the last known address indicated in the withdrawal motion to which Taylor had personally consented and signed. There is also evidence that some of this mail was returned "refused." We cannot conclude that Taylor has demonstrated error on the face of the record.

Similarly, while Taylor seems to argue that he did not consent to the Rule 11 agreement or that the Perricones' claims lack merit, he does not translate this into a demonstration of error apparent on the face of the record by the district court in granting summary judgment.

CONCLUSION

We affirm the judgment.

/s/_________

Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Field Affirmed Filed: August 16, 2017


Summaries of

Taylor v. Perricone

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Aug 16, 2017
NO. 03-16-00331-CV (Tex. App. Aug. 16, 2017)
Case details for

Taylor v. Perricone

Case Details

Full title:Kent Taylor, Appellant v. Tana Perricone and Stephen Perricone, Appellees

Court:TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Date published: Aug 16, 2017

Citations

NO. 03-16-00331-CV (Tex. App. Aug. 16, 2017)

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