Ralph O. Douglas v. American Title Company, et al.--Appeal from 133rd District Court of Harris County

Opinion issued March 10, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00265-CV

____________

RALPH O. DOUGLAS, Appellant

V.

AMERICAN TITLE COMPANY AND CATHERINE YORK, Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2003-25922

MEMORANDUM OPINION

In this restricted appeal, appellant, Ralph O. Douglas (Douglas), challenges the trial court s rendition of summary judgment in favor of appellees, American Title Company (ATC) and Catherine York, in Douglas s suit for breach of contract. In fourteen points of error, // Douglas contends that the trial court erred in granting ATC s and York s summary judgment motion because the evidence was legally and factually insufficient to prove that Douglas did not have title to real property located at 4703 Sauer in Houston, Texas (the Sauer property ); the evidence was legally and factually insufficient to prove that he did not fund his proposed repurchase of the Sauer property; the evidence was legally and factually insufficient to prove that ATC and York did not have a duty to close on the proposed transaction involving the Sauer property; York s affidavit was legally and factually insufficient to prove that Douglas did not have title to the Sauer property; ATC s and York s Exhibit D, which included a letter sent to York from the attorney of Douglas s mortgage company and a general warranty deed executed by a trustee, was legally and factually sufficient to prove that Douglas had title to the Sauer property; there was no evidence that Douglas did not have title to the Sauer property; the trial court abused its discretion in granting ATC s and York s summary judgment motion when the motion had no supporting evidence to prove that Douglas did not have title to the Sauer property; ATC and York neither negated an essential element of Douglas s claim nor established an affirmative defense to Douglas s claims; and the trial court did not accept as true Douglas s response to ATC s and York s summary judgment motion. Because the record shows that Douglas participated in the proceedings below, we have no jurisdiction over the restricted appeal. We dismiss this appeal.

Factual and Procedural Background

In his original petition, Douglas alleged that, in May 1999, he contracted with ATC and York to have title services performed on six of his properties. However, in June 1999, a Harris County grand jury indicted Douglas for real estate fraud. According to Douglas s petition, M. Lankford, a representative of the Harris County District Attorney s Office, notified York to immediately stop performing title services on the properties because such properties were involved in fraudulent transactions. Thereafter, because ATC did not close on the Sauer property, Douglas s mortgage company foreclosed on the property. Thereafter, Douglas brought suit against ATC and York for breach of contract, alleging that ATC and York failed in their duty to close on the Sauer property because (1) such property was never involved in the fraudulent transactions; (2) such property had a City of Houston Condemn Property Lien on it; (3) Douglas s mortgage company extended the time to close on such property due to the lien; and (4) Douglas secured a release of the lien. Both ATC and York filed answers in which they generally denied Douglas s allegations and specifically denied that they had a duty to close on the Sauer property and that they breached a contract with Douglas.

On August 1, 2003, ATC and York filed a summary judgment motion, with supporting evidence attached, asserting that they were entitled to judgment as a matter of law because they had no duty to close the real estate transaction. Specifically, ATC and York asserted that they had no such duty because Douglas (1) did not have title to the Sauer property, (2) was undertaking to sell property that he did not own, and (3) did not fund his proposed repurchase of the property.

On August 15, 2003, Douglas filed a response to ATC s and York s summary judgment motion, asserting that the motion should be denied because ATC s and York s summary judgment evidence established that Douglas had good and defeasible title and that he had obtained authorized, approved, and available funding from his mortgage company to repurchase the Sauer property. There is no evidence in the record that Douglas attached any controverting affidavits or other evidence to his response.

On September 2, 2003, the trial court, without specifying the grounds upon which it relied, granted ATC s and York s summary judgment motion. Subsequently, on March 22, 2004, this court received Douglas s second notice of restricted appeal from the trial court. //

Analysis

A restricted appeal is a direct attack on a judgment. Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 721 (Tex. App. Houston [1st Dist.] 2003, no pet.). To attack a judgment by a restricted appeal, the appeal must be filed (1) within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who, either in person or through counsel, did not participate at trial; and (4) the error must be apparent from the face of the record. Tex. R. App. P. 26.1(c), // 30 // ; Alexander v. Lynda s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Roventini, 111 S.W.3d at 721. These elements are mandatory, jurisdictional, and cannot be waived. Diferrante v. Keraga, 976 S.W.2d 683, 685 (Tex. App. Houston [1st Dist.] 1997, no writ).

A restricted appeal is available only to a party who did not participate in the hearing that resulted in the judgment complained of. Tex. R. App. P. 30. The pivotal question to be answered when analyzing the participation requirement of a restricted appeal is whether the appellant took part in the decision-making event that resulted in the adjudication of his rights. Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The level of participation by a party is a question of degree. Id. Furthermore, the nature and extent of participation that precludes a restricted appeal depends upon the procedural posture of the case. Id. In the context of a summary judgment proceeding, the parties participation occurs prior to the submission of a case. Id.; Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); Thacker v. Thacker, 496 S.W.2d 201, 204 (Tex. Civ. App. Amarillo 1973, writ dism d).

Taking part in all steps of a summary judgment proceeding, other than appearing at a hearing on the motion, is participation. Cent. Power, 925 S.W.2d at 589; Stubbs, 685 S.W.2d at 645. Specifically, we note that several Texas courts have held, for purposes of a summary judgment proceeding, that a party participates when he files a response with controverting evidence. See Cent. Power, 925 S.W.2d at 589; Stubbs, 685 S.W.2d at 645; Bowles v. Cook, 894 S.W.2d 65, 67 (Tex. App. Houston [14th Dist.] 1995, no writ); Dillard v. Patel, 809 S.W.2d 509, 511-12 (Tex. App. San Antonio 1991, writ denied); Norman v. Dallas Cowboys Football Club, Inc., 665 S.W.2d 137, 139-40 (Tex. App. Dallas 1983, no writ); Thacker, 496 S.W.2d at 204-05. Furthermore, this court has held that, on the other hand, when an appellant neither files a response nor appears at the hearing on a summary judgment motion, a restricted appeal is permissible. Havens v. Ayers, 886 S.W.2d 506, 509 (Tex. App. Houston [1st Dist.] 1994, no writ).

In this case, the record shows that Douglas participated in the decision-making events that resulted in the summary judgment entered in favor of ATC and York. Specifically, the record reflects that he participated by filing a response to ATC s and York s summary judgment motion, whereby he challenged ATC s and York s assertions. Such action negates Douglas s right to a restricted appeal. Because Douglas participated in the summary judgment proceeding to an extent that he cannot pursue a restricted appeal, we do not have jurisdiction to hear Douglas s restricted appeal. See Diferrante, 976 S.W.2d at 685.

Conclusion

Accordingly, we dismiss the appeal for lack of jurisdiction and do not reach the merits of Douglas s appeal.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.