Opinion
NO. 02-17-00290-CV
05-31-2018
KEITH L. SOMERVILLE APPELLANT v. LISA JAMES, CHRISTOPHER BRANTLEY, CLEOFA PALMA, AND ROBERT STIVERS APPELLEES
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 185,077-B MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Keith L. Somerville, a pro se inmate, attempts to appeal from the trial court's order dismissing his Chapter 14 in forma pauperis suit. Because we lack jurisdiction, we dismiss the appeal.
We set this case for submission without oral argument. Somerville objected to the submission without oral argument. After examining the briefs, we conclude that oral argument is unnecessary because the dispositive issues have been authoritatively decided, the facts and legal arguments are adequately presented in the briefs and record, and our decisional process would not be significantly aided by oral argument. See Tex. R. App. P. 39.1(b)-(d). We therefore overrule Somerville's objection to the denial of oral argument.
I. BACKGROUND
Somerville sued appellees under Chapter 14, alleging that they had unlawfully confiscated $125 from his inmate trust account; had fabricated a discipline case that claimed he and another inmate had exchanged an unauthorized commodity by allowing someone named Laretta Marroquie to place $125 on Somerville's inmate trust account; and had failed to properly process a grievance he filed. On November 7, 2016, appellees filed a motion to dismiss the suit. Somerville filed a response to the motion to dismiss on November 28, 2016. On March 13, 2017, the trial court signed a final judgment dismissing Somerville's suit for failure to comply with Chapter 14's requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b) (West 2017).
In an unaccelerated case like this one, the general rule is that a party seeking to directly appeal from a final judgment must file its notice of appeal within thirty days after the trial court signed the judgment unless a plenary-power-extending event occurred in the trial court, in which case the party's notice of appeal must be filed within ninety days after the trial court signed the judgment. See Tex. R. App. P. 26.1(a). These deadlines can be extended for a party that neither received the notice of judgment mandated by rule of civil procedure 306a(3) nor acquired actual knowledge of the judgment within twenty days after the trial court signed the judgment, but only if the party fulfills the requirements of rule of civil procedure 306a(5). See Tex. R. App. P. 4.2(a)(1), (b). Rule of civil procedure 306a(5) requires a party claiming not to have received notice of the trial court's signed judgment to "prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed." Tex. R. Civ. P. 306a(5).
No event extending the trial court's plenary power occurred in this case.
Asserting that he did not learn of the trial court's March 13, 2017 final judgment until August 1, 2017, Somerville filed a notice of appeal on August 14, 2017—154 days after the trial court signed the judgment. However, Somerville did not prove his lack of notice of the trial court's judgment in accordance with rule of civil procedure 306a(5), and thus his deadline to file a notice of appeal was not extended under rule of appellate procedure 4.2(a). See Tex. R. App. P. 4.2(a)(1), (b); Tex. R. Civ. P. 306a(5).
Although the rules of civil procedure require a trial court clerk to immediately notify the parties or their attorneys after a final judgment is signed, the record here shows that the trial court clerk did not mail such notice to Somerville until July 25, 2017. See Tex. R. Civ. P. 306a(3).
While Somerville's notice of appeal did not meet the deadline for a direct appeal, the deadline for filing a notice of restricted appeal is longer than the deadline for filing a notice of direct appeal. Compare Tex. R. App. P. 26.1(a), with Tex. R. App. P. 26.1(c). A party has six months from the date the trial court signs a judgment to file a notice of restricted appeal. Tex. R. App. P. 26.1(c). Somerville's notice of appeal was filed within this deadline.
On August 29, 2017, we notified Somerville that for purposes of a direct appeal, his notice of appeal was untimely. But we also informed him that his notice of appeal met the September 13, 2017 deadline for filing a notice of restricted appeal. See Starks v. Tex. Dep't of Criminal Justice, 153 S.W.3d 621, 624 (Tex. App.—Amarillo 2004, no pet.) ("Although [appellant] does not specifically identify his notice of appeal as a notice of restricted appeal, the notice contains language that indicates he is attempting to pursue a restricted appeal."). However, because his notice of appeal did not contain all of the information required for a notice of restricted appeal, we further notified Somerville that his notice was defective and directed him to file an amended notice that included the missing information. See Tex. R. App. P. 25.1(d)(7), (g), 37.1. Somerville then filed an amended notice of restricted appeal.
II. ANALYSIS
To prevail on this restricted appeal, Somerville must show that (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. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). We conclude Somerville has not satisfied all of these requirements.
Whether an appellant satisfies rule 30's non-participation element turns on whether he took part in the "decision-making event" that resulted in an adjudication of his rights. See Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). It is not necessary that an appellant attend the trial on the merits in order to be deemed as having taken part in a decision-making event. In re Marriage of Butts, 444 S.W.3d 147, 150 (Tex. App.—Houston [14th Dist.] 2014, no pet.). "Whether someone participated in the decision-making event is a matter of degree because trial courts decide cases in a myriad of procedural settings." Id. (cleaned up).
The record shows Somerville participated in the decision-making event that resulted in the trial court's final judgment. Somerville, of course, filed the Chapter 14 lawsuit that the trial court dismissed. In addition, he filed an unsworn declaration of indigence, a history of cases he previously filed, an affidavit stating the dates on which he filed three separate grievances and a date of response, copies of the grievances and written decisions from the grievance system, a copy of his inmate trust account statement, and a motion for default judgment. Indeed, Somerville filed a response and objections to appellees' motion to dismiss and a motion for summary judgment. Thus, Somerville participated in the decision-making event that resulted in the trial court's judgment. See Williams v. Stacks, No. 01-00-01240-CV, 2002 WL 89060, at *2 (Tex. App.—Houston [1st Dist.] Jan. 24, 2002, no pet.) (not designated for publication) (holding inmate who filed Chapter 14 suit that was dismissed participated in decision-making event where inmate filed an original petition, an affidavit in support of his request to proceed in forma pauperis, and a response to appellees' motion to dismiss); cf. Parsons v. Dallas Cty., 182 S.W.3d 451, 453 (Tex. App.—Dallas 2006, no pet.) (holding inmate who filed Chapter 14 suit that was dismissed did not participate in decision-making event where he neither attended the hearing on the motion to dismiss nor filed a response to the motion).
Rule 30's non-participation requirement is mandatory and jurisdictional. See Starks, 153 S.W.3d at 626. Therefore, because Somerville took part in the decision-making event that resulted in the trial court's final judgment, we lack jurisdiction over Somerville's attempted restricted appeal. See id. Accordingly, we dismiss the appeal. See Tex. R. App. P. 43.2(f).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ. DELIVERED: May 31, 2018