Jason Elliott Opp and Jennifer Jean Opp v. Rainbow International, LLC ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00022-CV
JASON ELLIOTT OPP AND JENNIFER JEAN OPP,
Appellants
v.
RAINBOW INTERNATIONAL, LLC,
Appellee
From the 414th District Court
McLennan County, Texas
Trial Court No. 2018-919-5
MEMORANDUM OPINION
In six issues in this restricted appeal, appellants, Jason Opp, and Jennifer Opp,
advancing pro se, challenge the trial court’s October 18, 2018 judgment in favor of
appellee, Rainbow International, LLC.1 We affirm.
1 In their pro se notice of appeal, the Opps purport to represent themselves and Spartan
Construction, LLC. However, the Opps signed their notice of appeal and appellants’ brief in their
individual capacities. Additionally, Texas law does not allow for nonlawyers to represent corporate
entities. See Kunstoplast of Am., Inc. v. Formosa Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex. 1996) (stating
that corporations may appear only through licensed attorneys); Amron Props., LLC v. McGown Oil Co., No.
14-03-01432, 2004 Tex. App. LEXIS 2268, at **1-2 (Tex. App.—Houston [14th Dist.] Mar. 11, 2004, no pet.)
I. BACKGROUND
In April 2014, the Opps and appellee entered into a franchise agreement with an
initial ten-year term and numerous requirements on the part of the Opps, the franchisees.
Apparently, the franchise agreement was subsequently assigned to Spartan Construction,
LLC, with the Opps personally guaranteeing the agreement.
In its original petition, appellee asserted that the franchise agreement obligated
appellants to submit weekly reports of gross sales, pay a license fee based on the reports
of gross sales, make payments owed pursuant to a promissory note, and pay advertising
and marketing fees. The agreement also provided for a charge for missed reports,
dishonored checks, and late fees, including interest. Appellee alleged that, starting in
November 2016 and continuing into 2017, appellants breached the agreement numerous
times. The alleged breaches of the agreement included the failure to pay various
licensing, marketing, and advertising fees. Additionally, appellants purportedly failed
to make payments on the promissory note, stopped submitting reports of sales, provided
checks that were later dishonored and resulted in additional fees, failed to provide
(mem. op.) (stating that limited liability companies must appear through licensed attorneys); see also TEX.
R. CIV. P. 7 (allowing a person to represent himself pro se). As such, we cannot construe the Opps’s pro se
notice of appeal to encompass Spartan Construction, LLC. Without a proper notice of appeal, there is
nothing preserved for appellate review on Spartan Construction, LLC’s behalf. See TEX. R. APP. P. 25.1(c)
(“A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of
appeal.”); see also Brooks v. Northglen Ass’n, 141 S.W.3d 158, 171 (Tex. 2004) (“Northglen did not file a notice
of appeal from the trial court’s judgment, did not notice a cross-appeal, and did not petition this court for
review on the point. Accordingly, Northglen did not preserve this issue for our review.”). Because Spartan
Construction, LLC did not file a proper notice of appeal in this proceeding, we modify the style of this case
to delete Spartan Construction, LLC.
Opp, et al. v. Rainbow Int’l, LLC Page 2
certificates of insurance that were required under the agreement, and failed to submit tax
returns that were also required under the agreement. As a result of these alleged
breaches, appellee argued that it sustained $189,686.08 in damages.
On March 9, 2018, appellee filed suit, alleging breach-of-contract and breach-of-
the-personal-guaranty claims against appellants and requesting damages, as well as
attorney’s fees. Though not a part of the Clerk’s Record, appellants filed two motions to
transfer venue from Texas state court to a federal court in Alaska, where they reside.
There is no indication in the record that these motions were presented to the trial court,
that hearing dates were ever requested, or that hearings were ever conducted on the
motions.
Thereafter, appellee filed a motion to compel because appellants failed to respond
to discovery requests. After a hearing that appellants did not attend, the trial court
granted appellee’s motion to compel and set the case for a bench trial on October 18, 2018.
In response to this ruling, appellants allegedly filed an unverified motion for continuance
complaining that they did not receive notice of the hearing on appellee’s motion to
compel and seeking to postpone the scheduled October 18, 2018 trial setting. Once again,
appellants’ motion for continuance is not included in the record, and there is no
indication that a hearing date was requested or that a hearing was ever conducted on this
motion.
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In any event, on October 18, 2018, the trial court conducted a final hearing in this
matter. Appellants did not attend the hearing. At the conclusion of the hearing, the trial
court ruled in favor of appellee and awarded appellee $189,686.08 in damages against
appellants and Spartan Construction, LLC, jointly and severally. The trial court also
awarded $40,200 in attorney’s fees for work done at the trial-court level and additional
attorney’s fees for appeals to this Court and the Texas Supreme Court, in the event that
any appeals are filed. Three months later, on January 18, 2019, appellants filed their
notice of restricted appeal in this matter.
II. RESTRICTED APPEAL
A restricted appeal is a direct attack on the judgment. Barker CATV Constr., Inc. v.
Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.] 1999, no pet.). To prevail
on a restricted appeal, the appellant “must establish that: (1) it filed notice of the
restricted appeal within six months after the judgment was signed; (2) it was a party to
the underlying lawsuit; (3) it 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.” Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see TEX. R. APP. P.
30. Only the fourth element is at issue in this case.
“[A] restricted appeal requires error that is apparent, not error that may be inferred.”
Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (emphasis in original). When determining
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whether error is apparent from the face of the record, we consider all the papers on file
in the appeal, including the reporter’s record. Norman Comm’cns v. Tex. Eastman Co., 955
S.W.2d 269, 270 (Tex. 1997) (per curiam).
III. ANALYSIS
In their first and third issues, appellants complain about the trial court purportedly
“excluding a move of venue request and transfer of court file” from Texas state court to
federal district court in Alaska. The first such motion was filed on May 9, 2018, and the
second was filed on October 9, 2018.
A review of the Clerk’s Record reveals that neither of appellants’ purported
motions to transfer venue are included in the record. Although Texas Rule of Appellate
Procedure 35.3(a) places the burden to timely prepare, file, and certify the Clerk’s Record
on the trial court clerk, appellants bear the burden to bring forward an appellate record
that enables us to determine whether appellants’ complaints constitute reversible error.
See TEX. R. APP. P. 35.3(a); see also Uranga v. Tex. Workforce Comm’n, 319 S.W.3d 787, 791
(Tex. App.—El Paso 2010, no pet.); W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 37 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (noting that historically, the burden falls on
appellant to see that a sufficient record is presented showing reversible error). The
motions complained about in these issues are not those that are required to be included
in the appellate record under Texas Rule of Appellate Procedure 34.5(a), and despite it
being their burden to do so, there is no indication that appellants designated that these
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motions be included in the appellate record. See TEX. R. APP. P. 34.5(a)(13), (b); see also
Uranga, 319 S.W.3d at 791; Wilhelm, 208 S.W.3d at 37; Greenstreet v. Heiskell, 940 S.W.2d
831, 834-35 (Tex. App.—Amarillo 1997, no writ) (stating that pro se litigants are held to
the same standards as licensed attorneys and must comply with applicable laws and rules
of procedure). Without these documents, we have no way of determining whether there
is error apparent on the face of the record. See Alexander, 134 S.W.3d at 848. Accordingly,
we overrule appellants’ first and third issues.
In their second issue, appellants complain about a motion for continuance that
they allegedly filed after the trial court’s hearing on appellee’s motion to compel.
Appellees respond that the motion was unverified and that appellant failed to properly
set the motion for a hearing. However, once again, appellants’ motion for continuance is
not included in the appellate record. And like before, without this document, we have
no way of determining whether there is error apparent on the face of the record. See id.;
see also TEX. R. APP. P. 34.5(a)(13), (b); Uranga, 319 S.W.3d at 791; Wilhelm, 208 S.W.3d at
37. We overrule appellants’ second issue.
In their fourth and fifth issues, appellants again reference their purported motions
to transfer venue and for a continuance. However, in these issues, appellants make no
argument and cite to no authority demonstrating any error on the part of the trial court.
Accordingly, we conclude that these issues are inadequately briefed. See TEX. R. APP. P.
38.1(i). We overrule appellants’ fourth and fifth issues.
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In their sixth issue, appellants contend that the trial court erred by not setting a
hearing on their motion to transfer venue. Citing Texas Rule of Civil Procedure
502.4(d)(1)(a), appellants argue that the trial court was obligated to set their transfer
motions for a hearing. See TEX. R. CIV. P. 502.4(d)(1)(a). However, this rule is only
applicable to Texas justice courts, and this case was filed in Texas district court. See id.
Additionally, Texas Rule of Civil Procedure 87 specifically provides that it is the movant
who has the duty to request a setting on a motion to transfer. See id. at R. 87 (“The movant
has the duty to request a setting on the motion to transfer.”). There is nothing on the face
of this record indicating that appellants requested a setting on their motion to transfer
pursuant to Texas Rule of Civil Procedure 87. See id. We therefore conclude that this
issue lacks merit. We overrule appellants’ sixth issue.
IV. CONCLUSION
Having overruled all of appellants’ issues, we affirm the judgment of the trial
court.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed November 6, 2019
[CV06]
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