Albert Nicolas v. Kerr County--Appeal from 216th Judicial District Court of Kerr County

MEMORANDUM OPINION
No. 04-02-00556-CV
Albert NICOLAS,
Appellant
v.
KERR COUNTY,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. 93-126-A
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 21, 2003

DISMISSED FOR LACK OF JURISDICTION

Appellant, Albert Nicolas, appeals the trial court's order granting appellee, Kerr County, summary judgment in a suit for delinquent property taxes on property known as Bee Caves Ranch. In one issue, he contends that trial court abused its discretion in denying him the right to a jury trial. We conclude that we do not have jurisdiction over this appeal, and dismiss the appeal.

Background

A review of the record reflects that Kerr County filed a traditional motion for partial summary judgment against Nicolas for delinquent taxes on November 30, 2001. In support of its motion, Kerr County offered certified delinquent tax records and supporting affidavits, containing the tax amounts assessed and due both Kerr County and Hunt Independent School District from 1995 to 2000. Kerr County set the matter for written submission on January 14, 2002 in the 216th Judicial District Court. Both the motion for partial summary judgment and a "Notice of Submission" was filed and mailed to Nicolas by certified mail on November 30, 2001. The notice informed Nicolas of Kerr County's motion, that the motion would be submitted on January 14, 2002 at 10:00 a.m., and of Nicolas's right to file a written response.

On January 14, 2002, the trial court granted the County's motion for partial summary judgment and entered a judgment against Nicolas in the amount of $3,356.11, court costs, and a fifteen percent penalty pursuant to section 33.07 of the Texas Tax Code. A judgment was entered against the remaining defendants in the case on June 17, 2002.

On July 19, 2002, Nicolas filed a pro se notice of appeal from the trial court's order granting Kerr County summary judgment. Nicolas did not file a timely notice of appeal or a motion for extension of time. See Tex. R. App. P. 26.1, 26.3. We ordered Nicolas to show cause in writing why this court had jurisdiction over this appeal. Nicolas responded contending that he had filed a restricted appeal. See Tex. R. App. P. 30. We considered Nicolas's response to be sufficient at the time and retained the appeal on the docket of this court.

Thereafter, a supplemental clerk's record was received in this court which shows that Nicolas filed a timely written response to Kerr County's motion for partial summary judgment. Specifically, on January 3, 2002, eleven days before the hearing, Nicolas filed a document entitled "Defendant's Amendment to Motion to Dismiss in Answer to Plaintiff's Partial Summary Judgment." (1) In that response, Nicolas asserts genuine issues of fact and requests that a subpoena issue for papers held by Peggy Dunbar, an attorney. According to Nicolas, the papers held in Dunbar's possession would show that Bee Caves Ranch has had a state charter since 1989 and that the charter was known as the Holly School. Given the existence of this charter, according to Nicolas, the property could not be taxed. Nicolas's motion is supported by his own "Affidavit of Truth."

Analysis

Rule 30 of the Texas Rules of Appellate Procedure states the following:

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 post-judgment motion or request findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26. 1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).

Tex. R. App. P. 30 (emphasis added). Accordingly, the requirements for a restricted appeal are: (1) that the appeal must be brought within six months of the date the judgment is signed; (2) by a party to the suit; (3) who did not participate in the proceedings below. See Serna v. Webster, 908 S.W.2d 487, 490-91 (Tex. App.--San Antonio 1995, no writ) (discussing former Rule 45 of Texas Rules of Appellate Procedure regarding writ of error). These elements are mandatory and jurisdictional. Id. The supplemental clerk's record with Nicolas's written response of January 3, 2002 indicates, at the very least, that Nicolas (1) received notice of Kerr County's motion for partial summary judgment, (2) knew that a written response, if any, needed to be filed at least seven days before the date of submission, and (3) exercised his right to file a written response before the trial court considered the matter on January 14, 2002. This appears to be prima facie evidence of the fact that Nicolas did participate in the summary judgment hearing at issue in this appeal. Therefore, we ordered Nicolas to show cause why this court had jurisdiction.

Nicolas responded, asserting that his filed response to Kerr County's motion for partial summary judgment was not reviewed or considered by the trial court. Nicolas premises his argument on two documents. The original clerk's record filed in the Fourth Court of Appeals on August 20, 2002 did not contain a copy of Nicolas's January 3, 2002 response to Kerr County's summary judgment motion. As a result, on October 28, 2002, Nicolas specifically requested that the district clerk for Kerr County supplement the appellate record to include, among other items, a document he called an "Amended Submission and [S]upporting Affidavit filed 01/03/02." By letter, on November 6, 2002, the district clerk notified Nicolas that after a diligent search had been made, no document entitled "Amended Submission and [S]upporting Affidavit" could be located. (2) Nicolas contends that these two documents establish that his January 3, 2002 response was "never properly before the Trial Court to consider."

Nicolas in essence is maintaining that his January 3, 2002 response was not considered by the trial court; therefore, he did not participate for the purpose of Rule 30. We disagree. Whether the trial court considered Nicolas's response before it ruled is not the relevant inquiry for purposes of triggering Rule 30's application. Rather, it is the fact of a party's participation that determines his right to a restricted appeal. See Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996) (stating "participation" is a matter of degree because trial courts decide cases in a wide variety of procedural settings). A party's participation in a dispositive hearing is sufficient to make a restricted appeal unavailable. C & V Club v. Gonzalez, 953 S.W.2d 755, 757 (Tex. App.--Corpus Christi 1997, no writ); Serna, 908 S.W.2d at 492. Therefore, the focus of our analysis is whether the record reflects Nicolas participated in the motion for summary judgment.

As detailed above, the record reflects that Kerr County filed a motion for partial summary judgment to which Nicolas filed a response on January 3, 2002 supported by his own affidavit (notwithstanding the confusion as to the title of the response). Therefore, Nicolas had notice of the motion and exercised his right to file a written response with an affidavit. Texas courts have held, for purposes of a summary judgment proceeding, that a party "participates" where they file a response and affidavit. See Bowles v. Cook, 894 S.W.2d 65, 67 (Tex. App.--Houston [14th Dist.] 1995, no writ); see also Norman v. Dallas Cowboys Football Club, Inc., 665 S.W.2d 137, 140 (Tex. App.--Dallas 1983, no writ); Thacker v. Thacker, 496 S.W.2d 201, 204-5 (Tex. Civ. App.--Amarillo 1973, writ dism'd). No oral hearing was held by the trial court prior to granting Kerr County's motion, and none was required. See Tex. R. Civ. P. 166a(c) (stating no oral testimony shall be received at the hearing). Taking part in all steps of a summary judgment proceeding, other than appearing at a hearing on the motion, is participation. See Bowles, 894 S.W.2d at 67.

The record affirmatively establishes Nicolas participated in the proceedings below, thereby negating his right to a restricted appeal under Rule 30 of the Texas Rules of Appellate Procedure. Accordingly, we dismiss this appeal for lack of jurisdiction and do not reach the merits of Nicolas's appeal.

Phylis J. Speedlin, Justice

1. In the motion, Nicolas states he submits the motion in "response to the Plaintiffs [sic] Notice of Submission and within seven (7) days before the date set for submission."

2. A supplemental clerk's record filed in this court on November 2, 2002 contains a document filed by Nicolas on January 3, 2002 styled "Defendants [sic] Amendment to Motion to Dismiss in Answer to Plaintiffs [sic] Partial Summary Judgment" which includes Nicolas's affidavit.