Spence v. Hadley, 11-19-00389-CV

CourtCourt of Appeals of Texas
Writing for the CourtW. BRUCE WILLIAMS, JUSTICE
Docket Number11-19-00389-CV
Decision Date28 October 2021



No. 11-19-00389-CV

Court of Appeals of Texas, Eleventh District

October 28, 2021

On Appeal from the 259th District Court Jones County, Texas Trial Court Cause No. 024543

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.



This is a restricted appeal from an "Order Granting Summary Motion to Remove Invalid Lien." The motion upon which this order was based was limited in scope-it simply sought to remove a lien that had been filed in the Jones County property records. The hearing on the motion only addressed the limited relief that had been requested in the motion. But the order granting the motion, that was prepared by Appellees' attorney, granted much more relief than simply removing


the lien-it also provided that Appellant take nothing on all of his claims seeking payment from Appellees. Counsel for Appellant did not become aware of the "take nothing" component of the judgment until more than thirty days after it was entered. We conclude that Appellant may challenge the judgment by way of restricted appeal. We affirm in part, and reverse and remand in part.

Factual and Procedural History

Appellant, Jerry Spence d/b/a Big Country Irrigation, entered into an oral agreement with Appellees, Mark Hadley and Virginia Reger Morton, Trustee of the Virginia Reger Morton Trust, in which Appellant agreed to repair two water wells for Appellees in exchange for payment. On October 23, 2018, Appellant filed a petition in District Court in Jones County, Texas, alleging breach of contract and seeking damages, attorney's fees, a decree recognizing Appellant's mechanic's lien, and foreclosure upon said lien. On November 19, 2018, Appellees answered and asserted an affirmative defense as to the mechanic's lien on the grounds that the property on which the water wells are situated is Morton's designated homestead and that the contract was not in writing.

On January 30, 2019, Appellees filed a summary motion to remove the invalid lien from the homestead. On April 8, 2019, Appellees' counsel e-mailed Appellant's counsel to confirm that he received notice that the hearing on Appellees' motion had been set for May 10, 2019. Appellant's counsel explained that he would be out of the country on that day and requested that Appellees reschedule the hearing. Appellees's counsel responded, "Yes, I'll agree to a continuance." However, the hearing was never rescheduled.

At the May 10 hearing, the trial court asked Appellees whether anyone entitled to notice of the hearing was absent; Appellees responded that Appellant "has received notice and has not appeared." The hearing proceeded without


Appellant's counsel, but the trial court revisited the matter of the absence of Appellant's counsel, resulting in the following exchange: THE COURT: [H]ow did you serve Mr. Boone [Appellant's Counsel] with notice of today's hearing?

[APPELLEES' COUNSEL]: Electronic service and then I followed up with an e-mail directly to him. He did respond to my email
THE COURT: And did he say he wouldn't be here today
[APPELLEES' COUNSEL]: He indicated that he was going to file for a continuance -- or he actually requested that I file a continuance; however, I cannot do that, sir, because my -- that would be indirect [sic] violation of the interest of my client. I did tell him that if he were to seek a continuance that I would not oppose him.
(Brief pause. Court on the phone.)
THE COURT: Mr. Campbell, Mr. Boone, he practices up here. The reason I called is he -- I don't know that he's ever missed a hearing or even been late for a hearing. He's out of the country. His paralegal said she didn't have it on the calendar. Are you wanting to proceed forward with your relief today?

Appellees then submitted a proposed order to the trial court, granting Appellees' summary motion for removal of the invalid lien. The trial court instructed Appellees to e-file the proposed order and it would be entered.

There was no discussion at the hearing, nothing in the title of the order, and nothing in the record, other than the fact that it had been e-filed, indicating that the trial court or Appellant's counsel was actually aware that the proposed order, in addition to removing the lien, also included an inserted paragraph with the following language:

IT IS ORDERED that [Appellant] . . . take nothing against [Appellees] . . . [and] that all claims asserted by [Appellant] are denied.
. . .
. . . This judgment finally disposes of all parties and claims and is appealable.

Although there was no discussion of it during the hearing or evidence of same submitted, the order also summarily ordered that Appellant "pay reasonable attorney's fees in the amount of $5, 000.00 to [Appellees]."[1] The trial court signed this order on June 20, 2019.

On November 21, 2019, Appellant moved for summary judgment on his breach of contract claim. Four days later, Appellees submitted a plea to the jurisdiction, arguing that the trial court lacked jurisdiction over Appellant's breach of contract claim because the order it had signed five months earlier, drafted by Appellees' counsel, "explicitly states that, 'all claims asserted by [Appellant] are denied.'" Appellant's counsel responded that "[d]espite no grounds for that relief and no notice to me of the proposed judgment, [Appellees' counsel] attempted to defeat [Appellant's] claims by trickery and deceit." Appellant then filed a notice of


restricted appeal on December 12, 2019, eight days before the six-month deadline to do so. See TEX. R. APP. P. 26.1(c).

On restricted appeal, Appellant advances two issues: (1) that, while the trial court correctly removed Appellant's mechanic's lien from Appellees' homestead property, it reversibly erred when it also dismissed Appellant's entire breach of contract claim and (2) that the trial court abused its discretion in awarding attorney's fees in the amount of $5, 000 to Appellees because it had no evidence or basis upon which to conclude that such an amount was necessary, just, and equitable. Appellees counter that we have no jurisdiction to consider this case on restricted appeal because Appellant participated in the decision-making process that resulted in the dismissal of all of his claims and only failed to timely appeal through the ordinary channels because of his own negligence. Appellees also argue that Appellant cannot prevail on his first issue because he failed to plead breach of contract alongside his foreclosure of mechanic's lien claim and that Appellant cannot contest the sufficiency of the evidence to support the trial court's award of attorney's fees because the scope of a restricted appeal is confined to the face of the record.

I. Jurisdiction - Appellant is entitled to a restricted appeal, under Tex.R.App.P. 30, because he did not participate in the decisionmaking event that erroneously and finally disposed of his claim for breach of contract, and any negligence on Appellant's part is irrelevant.

A. Standard of Review

Under Rule 30 of the Texas Rules of Appellate Procedure: "A party who did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a [timely] notice of appeal . . . may file a notice of appeal within [six months after the judgment or order is signed]." Appellees challenge our jurisdiction on the ground that Appellant sufficiently


participated in the summary judgment decision which eliminated all of his claims and failed to timely appeal, thus barring his entitlement to a restricted appeal. Appellees fail to demonstrate how Appellant runs afoul of Rule 30.

With respect to the non-participation requirement, any doubts or ambiguities will be resolved in Appellant's favor because, "[f]or over half a century, [the Texas Supreme Court] ha[s] required courts to liberally construe the non-participation requirement for restricted appeals in favor of the right of appeal." Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014); see also Lawyers Lloyds of Texas v. Webb, 152 S.W.2d 1096, 1098 (Tex. 1941) ("statutes giving and regulating the right of appeal . . . should be liberally construed in favor of the right of appeal"). Ultimately, in determining whether Appellant participated for purposes of Rule 30, "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. Cent. Power &Light Co., 925 S.W.2d 586, 589 (Tex. 1996) (emphasis added). Making this determination defies bright-line rules because "[t]he nature and extent of participation that precludes [restricted] appeal . . . in any particular case is a matter of degree," insofar as "trial courts decide cases in a wide variety of procedural settings." Id. at 589; see also Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985).

Appellant's alleged negligence in failing to timely file an ordinary appeal is inapposite. The Texas Supreme Court has made clear that an appellant in a restricted appeal "is not required to show diligence or lack of negligence before its complaints will be heard." Texaco, 925 S.W.2d at 590. In short, "it is the fact of nonparticipation, not the reason for it, that determines the right to appeal by [restricted appeal]." Id. No further analysis is necessary to immediately dispose of Appellees' argument that somehow Appellant's negligence precludes a restricted appeal.


B. Analysis

We address Appellees' claim that Appellant participated in the summary...

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