Jon Richard O'Kane v. Joe Chuoke, Mitchell Chuoke, and James C. Brady ( 2007 )

Opinion issued March 29, 2007

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-05-00523-CV

__________

JON R. O'KANE, Appellant

V.

JOSEPH CHUOKE, Appellee

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On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 04CV0162

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MEMORANDUM OPINION

In this restricted appeal, Jon R. O'Kane challenges the trial court's decision to grant Joseph Chuoke's motion for summary judgment. In six issues, O'Kane asserts that (1) he is entitled to a restricted appeal, (2) the trial court erred in granting O'Kane's trial counsel's motion to withdraw, (3) the trial court lacked subject matter jurisdiction over Chuoke's counterclaim, (4) the trial court erred in failing to grant O'Kane's motion for continuance after his attorney withdrew, (5) his federal due process rights were violated when the trial court failed to notify him of the summary judgment order, and (6) the trial court erred in granting Chuoke's motion for summary judgment when O'Kane had not yet filed an answer to the counterclaim. We affirm.  

Factual and Procedural Background ⁽¹⁾

O'Kane leased some commercial property from Chuoke, James C. Brady, and Chuoke's brother, Mitchell Chuoke ("Mitchell"). After he paid his $10,000 first month's rent and deposit, O'Kane began preparing the site to operate his car dealership. O'Kane failed to obtain the proper licensing necessary to operate a used car sales lot on the premises, and he abandoned the premises before the end of the lease term. On February 10, 2004, he sued Chuoke, Brady, and Mitchell for breach of contract.

On April 1, 2004, one week after Chuoke filed his answer, O'Kane's attorney filed a motion to withdraw. Almost a month later, O'Kane filed a pro se motion for continuance requesting that, upon the granting of his counsel's withdrawal, the court should grant him a continuance to obtain counsel to help him respond to outstanding discovery already propounded by the defendants. The motion for continuance did not contain a request for submission or hearing. On May 11, the trial court granted O'Kane's attorney's motion to withdraw without ruling on O'Kane's pro se motion for continuance. Two days later, Chuoke filed a counterclaim, and one week after the withdrawal was granted, Chuoke filed requests for admission on O'Kane. Chuoke later filed motions to compel and for sanctions. Chuoke filed a motion for summary judgment based on the deemed admissions, which was granted October 20, 2004.

The trial court sent its order granting summary judgment to O'Kane's attorney, who had previously withdrawn from representing O'Kane. The letter was returned on October 28, 2004. Three weeks later, on November 19, 2004, the trial court granted Chuoke's motion for severance. On February 7, 2005, O'Kane filed an untimely motion to extend the post-judgment deadlines, motion for new trial, and motion for sanctions, which were all denied. On May 9, 2005, O'Kane filed a notice of restricted appeal.

Restricted Appeal

In his first issue presented for review, O'Kane contends that he is entitled to a restricted appeal.

To attack a judgment by a restricted appeal, the appeal must be filed: (1) within six months after the judgment was rendered; (2) by a party to the suit; (3) who, either in person or by counsel, did not participate in the hearing that resulted in the judgment complained of; (4) who did not timely file a post-judgment motion, request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(c) of the Texas Rules of Appellate Procedure; and (5) the error appears on the face of the record. See Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.--Houston [1st Dist.] 2006, no pet.). Here, the parties dispute whether error appears on the record. Specifically, Chuoke contends that, "an appellant cannot, by way of restricted appeal, seek to reverse a judgment which appears valid on the face of the record because of something that occurred after the judgment was rendered--the failure of the clerk to send notice of the judgment." We disagree.

In a restricted appeal, we are limited to considering only the face of the record, but our scope of review is otherwise the same as that in an ordinary appeal; that is, we review the entire case. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal, including the reporter's record. Id. The "error" on the face of the record is not solely limited to the order entered by the trial court. Accordingly, we conclude that this appeal falls within the parameters of a restricted appeal, and we sustain issue one.

Motion to Withdraw

In his second issue presented for review, O'Kane argues that the trial court erred in granting his trial counsel's motion to withdraw. Specifically, O'Kane contends that his trial counsel failed to comply with Rule 10 by not notifying him of a status conference set for May 13, 2004--more than one month after the motion was filed.

An attorney may withdraw from representation of a client only if the attorney satisfies the requirements of Rule 10 of the Texas Rules of Civil Procedure. Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990). Rule 10 permits counsel to withdraw only upon written motion showing good cause. Id. If no counsel is substituting for the withdrawing attorney, counsel's motion must state "that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known address and all pending settings and deadlines." Tex. R. Civ. P. 10. A trial court abuses its discretion when it grants a motion to withdraw which does not comply with the mandatory requirements of Rule 10.

We note that the failure to specify any pending settings or deadlines may violate the client's right to due process. Misium v. Misium, 902 S.W.2d 195, 197 (Tex. App.--Eastland 1995, writ denied). Even if the failure to specify the pending settings or deadlines violated O'Kane's due process rights, the error, if any, was waived. Fundamental error is very limited in Texas jurisprudence. "Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas." Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982). Alleged error, including claims that an individual's constitutional rights were violated, is waived if not asserted in the trial court.

There is no indication in the record that O'Kane preserved error by objecting to the motion to withdraw or by raising the issue of whether his due process rights were violated at the trial court level. In fact, O'Kane agreed to his counsel's withdrawal.

Furthermore, assuming that the motion to withdraw failed to notify O'Kane of a pending status conference, such lack of notice was rendered harmless by O'Kane's receipt of correspondence from the trial court informing him that the status conference had been reset. ⁽²⁾ The correspondence stated as follows:

Please be advised that an order withdrawing Malcolm D. Dishongh and the law firm of Miller & Scamardi as attorney for Plaintiff was signed on May 11, 2004. A copy of that order has been enclosed. Therefore, the next status conference has been re-set for August 5, 2004 at 10:00 a.m. If Plaintiff has not retained counsel by this date, Plaintiff is required to appear on his own behalf.

If you have any questions, please contact the court at [telephone number excluded].

Next, O'Kane complains of the trial court's failure to provide him "any time" to retain new counsel after granting his trial counsel's motion to withdraw. Here, O'Kane agreed to his trial counsel's withdrawal, which was based on the development of an actual conflict of interest. O'Kane argues that, because his counsel neglected to inform him of the status conference, he was prejudiced because, at the status conference, (1) he could have requested a continuance to comply with Chuoke's discovery requests, (2) he could have learned that his failure to answer Chuoke's requests for admission would result in their being deemed admitted, and (3) he could have requested a continuance to obtain new counsel. The record reflects that the trial court notified O'Kane that the status conference had been re-set. Further, O'Kane asserts that, had he known about the status conference, he would have attended and requested additional time to comply with Chuoke's requests for admission. The requests, however, were not filed until May 19--two days after the trial court notified O'Kane of the new status conference date.

Accordingly, we hold that the trial court did not err in granting O'Kane's trial counsel's motion to withdraw, and we overrule issue two.

Subject Matter Jurisdiction

In his third issue presented for review, O'Kane contends that the trial court lacked subject matter jurisdiction over Chuoke's counterclaim.

After he filed his counterclaim, the trial court notified Chuoke that he still owed $1 on the filing fee. O'Kane argues that the counterclaim was "conditionally" filed until the full filing fee was paid; therefore, the trial court lacked subject matter jurisdiction over the counterclaim.

The record indicates that Chuoke complied with the requirement that he pay a $15 filing fee at the time that he filed his counterclaim. See Tex. Gov't Code Ann. § 51.317(b)(2) (Vernon 1998). O'Kane fails to direct this Court to authority in support of his contention that Chuoke's failure to pay the additional $1 security fee deprived the trial court of subject matter jurisdiction over Chuoke's counterclaim, and we find none to support his point of error. We overrule issue three.

Motion for Continuance

In his fourth issue presented for review, O'Kane contends that the trial court erred in denying his motion for continuance to obtain counsel so that he could prepare for trial.

O'Kane claims that the trial court "was obligated to provide [him] with a continuance, regardless of whether he filed a motion requesting one or not." He further contends that he was not required to obtain a ruling on his motion for continuance to preserve error. Although Rule 33.1 contemplates implied rulings may, in certain circumstances, be sufficient to preserve error, in the present case, there is no indication that O'Kane requested a ruling on his motion insofar as it was not set for consideration by submission or at an oral hearing. Thus, no ruling, express or implied, has been preserved for our review. See Tex. R. App. P. 33.1. We overrule issue four.

Due Process

In his fifth issue presented for review, O'Kane argues that the failure of the trial court to provide him with notice of the summary judgment order amounted to a violation of his federal due process rights and that such error is reversible in this restricted appeal.

O'Kane does not challenge the propriety or his timely notice of both Chuoke's motion to sever and the trial court's severance order, which rendered final Chuoke's summary judgment. Rather, O'Kane contends that his failure to receive notice of the summary judgment was harmful because he was deprived of an opportunity to timely file a motion to reconsider the summary judgment order or file a motion for new trial. However, O'Kane fails to explain why, upon receipt of notice of the order of severance, he was prevented from pursuing such relief.

Having failed to show any harm, we overrule O'Kane's issue five.

Summary Judgment

In his sixth issue presented for review, O'Kane asserts that the trial court erred in granting Chuoke's motion for summary judgment when O'Kane had not yet filed an answer to the counterclaim.

Texas Rule of Civil Procedure 92 states that, "[w]hen a counterclaim or cross-claim is served upon a party who has made an appearance in the action, the party so served, in the absence of a responsive pleading, shall be deemed to have pleaded a general denial of the counterclaim or cross-claim[.]" Tex. R. Civ. P. 92; Richards v. Am. Nat. Prop. & Cas. Co., 195 S.W.3d 758, 763 (Tex. App.--Beaumont 2006, no pet.). The trial court did not sign the summary judgment until October 20, 2004, more than five months after the counterclaim was filed. Plaintiff filed several documents in the interim. Under these circumstances, O'Kane has not demonstrated error requiring reversal of the trial court's judgment. See Tex. R. App. P. 44.1(a).

We overrule issue six.

Conclusion

We affirm the judgment of the trial court.  

George C. Hanks, Jr.

Justice

  Panel consists of Justices Taft, Alcala, and Hanks.  

1. The factual background is derived from Chuoke's requests for admission that O'Kane failed to answer and were, thus, deemed admitted.

2.

O'Kane's address on the correspondence from the trial court is the same address found on his pro se appellate brief.