Lawrence Ealy v. EVC Engage, LLC ( 2021 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Lawrence Ealy v. EVC Engage, LLC
Appellate case number: 01-21-00095-CV
Trial court case number: 2020-09144
Trial court: 334th District Court of Harris County
Appellee, EVC Engage, LLC, has filed a “Motion to Dismiss Restricted Appeal for
Lack of Jurisdiction.” In its motion, appellee argues that this Court lacks jurisdiction over
appellant, Lawrence Ealy’s, restricted appeal, “[b]ecause Ealy filed a postjudgment
motion.” Restricted appeals are governed by Texas Rule of Appellate Procedure 30, which
provides:
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 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. Accordingly, restricted appeals are available only in limited
circumstances and for the limited purpose of providing a party that did not participate at
trial with the opportunity to correct an erroneous judgment. See P&A Real Estate, Inc. v.
Am. Bank of Tex., 323 S.W.3d 618, 619 (Tex. App.—Dallas 2010, no pet.).
The underlying litigation arises out of a real estate dispute, wherein appellee sued
Ealy “to enforce a written contract to purchase real estate” from Ealy. On July 28, 2020,
appellee filed a motion for summary judgment with the trial court. Appellee set its motion
for summary judgment on the trial court’s submission docket for August 24, 2020 and
served both the motion for summary judgment and notice of submission on Ealy. However,
Ealy did not file a response to appellee’s motion for summary judgment. On August 29,
2020, the trial court signed an order granting appellee’s motion for summary judgment.
This order constituted a final, appealable order.
On September 4, 2020, Ealy, acting pro se, placed into the mail via the United States
Postal Service, a letter addressed to the Honorable Judge Steven Kirkland, the presiding
judge of the 334th District Court of Harris County. While the letter was addressed to Judge
Kirkland, it was filed by the district clerk on September 17, 2020. In the letter, Ealy asked
for “the mercy of the [trial court] to grant [him] another court appearance that [Ealy] may
defend” himself. It its motion to dismiss, appellee posits that Ealy’s letter should be
construed as a motion for new trial, leaving this Court without jurisdiction over Ealy’s
notice of restricted appeal. See TEX. R. CIV. P. 320, 329b; TEX. R. APP. P. 30.
While Ealy’s letter does not meet the formalities of a pleading filed with a trial court,
such as a motion for new trial, appellant correctly notes that courts are to “look to [the]
substance [of a document], not to the form of its title or caption.” Barry v. Barry, 193
S.W.3d 72, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Further, Texas law directs
courts to view pro se filings “with liberatily and patience.” See Aguilar v. Stone, 68 S.W.3d
1, 1 (Tex. App.—Houston [1st Dist.] 1997, orig. proceeding).
Ealy’s letter requests that the trial court “grant [him] another court appearance,” so
that he “may be present to represent” himself. Given this, the substance of Ealy’s letter to
Judge Kirkland appears to request that the trial court “set aside [its] existing judgment,”
and to further “request relitigation of the issues.” See Barry, 193 S.W.3d at 74. Ealy’s
letter was also in writing, signed by Ealy, and submitted within thirty days of the judgment.
See TEX. R. CIV. P. 320, 329b(a).
However, even assuming we were to construe the substance of Ealy’s letter as a
motion for new trial, a “filing is not completed until the fee is paid.” See Jamar v.
Patterson, 868 S.W.2d 318, 319 n.3 (Tex. 1993). Notably, when Ealy tendered his letter
to the United States Postal Service, he did not also tender payment of the required filing
fee. See TEX. GOV’T CODE ANN. § 51.317(a), (b)(2). Further, there is no evidence in the
record before this Court that Ealy has paid any filing fee related to the letter since it was
tendered to the United States Postal Service.
While the date of “filing” is the date the document is “first tendered to the clerk,” a
trial court “should not consider” a filing until the fee is paid. See Jamar, 868 S.W.3d at
319 n.3. As noted above, here, there is no evidence that Ealy ever paid a filing fee in
connection with his letter requesting the trial court “grant [him] another court appearance,”
and as such, filing was never completed. See Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 321
(Tex. App.—Houston [1st Dist.] 1999, order) (per curiam), disp. on merits, 01-99-00662-
CV, 1999 WL 997788, at *1 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (dismissing
appeal for lack of jurisdiction where, after notice from appellate court, appellant failed to
pay filing fee associated with motion for new trial filed in trial court).
Accordingly, absent a properly filed postjudgment motion, Ealy’s notice of
restricted appeal is proper. We therefore deny appellee’s motion to dismiss. Appellee’s
brief remains due to be filed on or before September 30, 2021. See TEX. R. APP. P.
38.6(b).
It is so ORDERED.
Judge’s signature: ____/s/ Amparo Guerra______
 Acting individually  Acting for the Court
Date: ___August 26, 2021____