Lawrence Ealy v. EVC Engage, LLC

Opinion issued December 22, 2022
In The
Court of Appeals
For The
First District of Texas
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NO. 01-21-00095-CV
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LAWRENCE EALY, Appellant
V.
EVC ENGAGE, LLC, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2020-09144
OPINION
Appellant Lawrence Ealy filed a restricted appeal in response to the trial
court’s grant of summary judgment in favor of Appellee EVC Engage, LLC (EVC)
on its claim for specific performance for Ealy’s breach of contract for the sale of real
property. In a single issue on appeal, Ealy contends there is error on the face of the
record because the evidence is legally and factually insufficient to support the trial
court’s summary judgment. EVC disagrees, but it also contends that this Court lacks
jurisdiction over Ealy’s restricted appeal because he filed a timely post-judgment
motion in the trial court.
We hold that Ealy timely filed a post-judgment motion, and therefore, failed
to satisfy one of the jurisdictional requirements for a restricted appeal. Accordingly,
we lack jurisdiction to consider his restricted appeal and dismiss the appeal for want
of jurisdiction.
Background
Ealy entered a One to Four Family Residential Contract (the Contract) with
EVC, with an effective date of September 30, 2019. In the Contract, Ealy agreed to
sell the real property located at 3422 Francis Street, Houston, Texas 77004 (the
Property) for $250,000 to EVC. The Contract provided for payment of $150,000 in
cash at closing, with the remainder of the purchase price, $100,000, to be paid
through seller financing according to the terms of the “attached Seller Financing
Addendum.”
After Ealy failed to follow through on the sale of the Property, EVC filed suit
against Ealy for breach of contract. A month later, EVC filed its first amended
petition. Ealy filed an answer generally denying EVC’s allegations. EVC then
moved for summary judgment arguing that under Paragraph 15 of the Contract, Ealy
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defaulted because he failed to close on the sale. EVC claimed that Ealy refused to
allow it to inspect the Property and informed EVC that he no longer intended to close
or sell the Property to EVC. On the other hand, EVC complied with its contract
obligations by paying an earnest money deposit of $2,500 and being ready, willing,
and able to tender the purchase price agreed to under the Contract. EVC contended
it did not breach the Contract and claimed it was entitled to specific performance
and attorney’s fees under Paragraphs 15 and 17 of the Contract. EVC served Ealy
with requests for admission but received no response. Despite receiving proper
notice of the motion for summary judgment, Ealy did not file a response. On August
29, 2020, the trial court granted EVC’s motion for summary judgment, ordering
specific performance of the Contract and awarding EVC attorney’s fees and costs.
In September 2020, Ealy mailed, via the United States Postal Service, a letter
addressed to Judge Steven Kirkland, the presiding judge of the trial court, explaining
that he had been incarcerated from May 27, 2020 to August 10, 2020, and was not
able to represent himself or receive any mail during this time. In his letter, dated
September 9 and file stamped by the district clerk on September 17, Ealy stated, “it
is my request to have another judgment of summary that I may be present to
represent myself.” He also included proof of his release documents and incarceration
from those dates. Ealy claimed that he did not receive any money for the property or
sign a contract for the sale of the property, and he asserted that the real estate agent
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lied about the condition of the property and “must have taken matters into her own
hands.” Ealy concluded his letter with a request that the trial court “grant me another
court appearance that I may defend myself.” The trial court did not rule on Ealy’s
request in his letter. On February 22, 2021, Ealy filed a notice of restricted appeal.1
Restricted Appeal
A notice of appeal is generally due within thirty days after a final judgment is
signed. TEX. R. APP. P. 26.1. However, a party may obtain relief via a restricted
appeal if it meets the following requirements: (1) the appellant filed a notice of the
restricted appeal within six months after the judgment was signed; (2) the appellant
was a party to the underlying lawsuit; (3) the appellant did not participate in the
hearing that resulted in the complained of judgment 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. TEX. R. APP. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The first three elements are
considered jurisdictional and must be determined before moving to the fourth. Ex
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After Ealy filed his appellant’s brief and before EVC’s appellee’s brief was due,
EVC moved to dismiss Ealy’s restricted appeal. This Court concluded that Ealy’s
letter to Judge Kirkland was not properly filed as a post-judgment motion because
no filing fees were paid and, accordingly, denied EVC’s motion to dismiss and
ordered EVC to file its appellee’s brief. In EVC’s brief, it again challenged this
Court’s jurisdiction on the basis that Ealy timely filed a post-judgment motion.
Upon further review of the jurisdictional issues and additional briefing of the parties,
as detailed below, we conclude that Ealy’s letter was a timely filed post-judgment
motion, and therefore, we do not have jurisdiction to consider his restricted appeal.
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parte E.H., 602 S.W.3d 486, 497 (Tex. 2020). The fourth element is not considered
jurisdictional because it requires courts to analyze the merits of the appeal. Id. A
court should first inquire about its jurisdiction over an appeal before analyzing its
merits. Id. In our case, there is no dispute between the parties over the first two
elements of a restricted appeal. The parties dispute, however, whether Ealy timely
filed a post-judgment motion (element three) and whether there is error on the face
of the record (element four). Because element three implicates jurisdiction, we
consider it first.
A. Appellant’s September 17th Letter was a timely filed post-judgment
motion.
Although not raised by Ealy, EVC in its appellate brief argues this Court lacks
jurisdiction because Ealy’s letter to Judge Kirkland constituted a timely filed post-
judgment motion. Ealy argues we have jurisdiction because his letter was not a post-
judgment motion and, even if it was, it was not timely filed with the clerk because
no filing fee was paid. We agree with EVC.
There is no dispute as to whether Ealy participated in the hearing that resulted
in the complained-of judgment or requested findings of fact and conclusions of law.
The issue at hand is whether Ealy filed a timely post-judgment motion. Under the
third element for a restricted appeal, a party may not file a notice for restricted appeal
if it timely filed any post-judgment motions. TEX. R. APP. P. 30. Thus, we consider
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two questions. First, whether Ealy’s letter constitutes a post-judgment motion. And,
second, if so, whether it was timely filed.
To determine whether a party filed a post-judgment motion, courts look to the
substance of the document rather than its title or caption. Barry v. Barry, 193 S.W.3d
72, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Substance is not determined
solely from a caption or introduction. Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320
(Tex. App.—Houston [1st Dist.] 1999, no pet.). Instead, substance is gleaned from
the body of the instrument and the prayer for relief. Id. Texas Rule of Civil Procedure
320 allows a party to file a motion for new trial and request that the judgment be set
aside for good cause, provided that the motion is in writing and signed by the party
or his attorney. TEX. R. CIV. P. 320. A motion for new trial must, by its very nature,
seek to set aside an existing judgment and request relitigation of the issues. Barry,
193 S.W.3d at 74 (citing Finley, 4 S.W.3d at 320). If an instrument does not meet
these minimum requirements, it is not a motion for new trial. Id. (citing Mercer v.
Band, 454 S.W.2d 833, 836 (Tex. Civ. App.—Houston [14th Dist.] 1970, no writ)).
Ealy’s letter, though not captioned as a post-judgment motion or motion for
new trial, effectively requested that the court set aside the summary judgment
granted in favor of EVC. He requested “another judgment of summary” so that he
could be “present to represent” himself, and specifically requested that the court
“grant [him] another court appearance” so he could defend himself. He also
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substantively challenged the trial court’s summary judgment in that he claimed he
never signed the contract or received any money for the property. By including these
substantive challenges and requesting another court appearance to defend himself,
Ealy’s letter, though not in explicit terms, in essence asked the court to set aside the
summary judgment and allow him to relitigate the issues. Substantively, therefore,
we hold that his letter qualifies as a motion for new trial. See PopCap Games, Inc.
v. MumboJumbo, LLC, 350 S.W.3d 699, 716 (Tex. App.—Dallas 2011, pet. denied)
(holding motion was motion for new trial because it “expressly sought to relitigate
some of the issues in the case” and, even though motion did not explicitly request
judge set aside final judgment, relief that was requested “necessarily implied a
request that the existing judgment be vacated at least in part and a new final judgment
eventually signed”); Finley, 4 S.W.3d at 320 (holding motion for rehearing
requesting that trial court “grant a rehearing” and “deny defendants’ motion for
summary judgment” would be considered request for new trial because it “sought to
set aside the existing judgment for the purpose of litigating the issues” and “[i]f the
trial court granted the motion, a trial would have resulted”); Taylor v. Trans–Cont’l
Props., Ltd., 739 S.W.2d 873, 876–77 (Tex. App.—Tyler 1987, no writ) (construing
motion as motion for new trial based on its substance, even though it did not
expressly request trial court to set aside its judgment or grant new trial); English v.
Fischer, 632 S.W.2d 163, 164 (Tex. App.—Corpus Christi 1982, no writ) (treating
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motion as motion for new trial despite “the formal omission of an explicit prayer for
a new trial”); cf. Barry, 193 S.W.3d at 74 (holding answer filed after divorce decree
was entered, which consisted of general denial, request for attorney’s fees, and
prayer that plaintiff take nothing, did not meet minimum requirements for motion
for new trial because it did not “seek to set aside an existing judgment and request
relitigation of the issues”).
Having concluded that Ealy’s letter was a post-judgment motion for new trial,
we next consider whether it was timely filed. If so, we do not have jurisdiction to
consider his restricted appeal. See TEX. R. APP. P. 30 (“A party . . . who did not
timely file a postjudgment motion . . . may file a notice of appeal within the time
permitted by Rule 26.1(c).”). Here, there is no dispute that if the letter is considered
a motion for new trial (as we have found it is), it was timely filed. A motion for new
trial must be filed within thirty days of the judgment or order complained of is
signed. TEX. R. CIV. P. 329b(a). If it is timely filed, a motion for new trial extends
the deadline to file a notice of appeal by ninety days. See TEX. R. APP. P. 26.1(a)(1).
The trial court’s order granting summary judgment for EVC was signed on August
29. Ealy’s letter—which we construe as a motion for new trial—was filed on
September 17, well within the thirty-day time period set by Rule 329b. Thus, the
motion was timely filed. However, this does not end our inquiry. The parties dispute
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whether the letter was properly “filed” on September 17 because Ealy never paid the
requisite filing fee.
On at least two occasions, the Texas Supreme Court has considered the
question of what constitutes “filing” a motion for new trial for purposes of
calculating the appellate timetable. See Garza v. Garcia, 137 S.W.3d 36, 37 (Tex.
2004); Jamar v. Patterson, 868 S.W.2d 318, 318 (Tex. 1993). In Jamar, the
appellant filed a motion for new trial within thirty days of the judgment, but he did
not pay the $15.00 statutory filing fee at the time of filing. Id. The district clerk did
not accept the motion for filing at the time it was tendered to the clerk because the
filing fee had not been paid, only file-stamping the motion once the $15.00 filing fee
was received over two weeks later. Id. At issue on appeal was what constitutes
“filing” for purposes of calculating the appellate timetable. Id. The Texas Supreme
Court, acknowledging its previous “long line of cases,” held “that a document is
‘filed’ when it is tendered to the clerk, or otherwise put under the custody or control
of the clerk.” Id. at 319. Therefore, the Court held that the motion for new trial was
conditionally filed when the motion was tendered to the trial court clerk and that
date controlled for purposes of starting the appellate timetable. Id. The Court
recognized, however, that the filing was not “completed” until the date that the filing
fee was paid. Id. The Court also noted that “absent emergency or other rare
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circumstances,” the court should not consider the motion for new trial before
payment of the filing fee. Id. n.3.
In a more recent case, the Texas Supreme Court extended its holding in Jamar
to cases, like here, where a filing fee was never paid. In Garza, Garcia filed a motion
for new trial within the thirty-day time period after judgment, but she never paid the
requisite filing fee. 137 S.W.3d at 37. Garcia filed her notice of appeal eighty-four
days after judgment, which was timely if her motion extended the appellate
deadlines, but too late if it did not. Id. The Court held that a motion for new trial is
“‘conditionally filed’ if tendered without the requisite fee, and appellate deadlines
run from and are extended by that date.” Id.
[A] motion for new trial tendered without the necessary filing fee is
nonetheless conditionally filed when it is presented to the clerk, and that
date controls for purposes of the appellate timetable. . . . [T]he failure
to pay the fee before the motion is overruled by operation of law may
forfeit altogether the movant’s opportunity to have the trial court
consider the motion; it does not, however, retroactively invalidate the
conditional filing for purposes of the appellate timetable.
Id. at 37–38 (quoting Tate v. E.I. DuPont de Nemours & Co., 934 S.W.2d 83, 83–84
(Tex. 1996) (emphasis in original)). The Court explained, however, that filing fees
are not “irrelevant” and reiterated its prior holding in Jamar that “‘absent emergency
or other rare circumstances’ a motion for new trial should not be considered until the
filing fee is paid.” Id. at 38 (quoting Jamar, 868 S.W.2d at 319 n.3). Because Garcia
did not pay the filing fee, the trial court was not required to review her factual
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sufficiency complaint raised in her motion for new trial. Id. at 38. The Court
reasoned that because the filing fee was never paid, her complaint was not properly
made to the trial court and was not preserved for appellate review. Id.
In this case, Ealy mailed a letter to the trial court, which the district clerk file-
stamped on September 17, but he never paid the filing fee. Garza and Jamar instruct
that even though Ealy never paid a filing fee, his motion was considered
conditionally filed at the time he tendered it to the clerk, i.e., September 17, and that
date triggered the appellate timetable. That meant because he timely filed his letter
(which we construe as a motion for new trial), his deadline to appeal the summary
judgment order was extended by ninety days, or until November 24, 2020. TEX. R.
APP. P. 26.1(a)(1). Ealy did not file a notice of appeal. Instead, he filed a notice of
restricted appeal on February 22, 2021. Because Ealy timely filed a post-judgment
motion, we do not have jurisdiction to hear his appeal as a restricted appeal. TEX. R.
APP. P. 30.
We acknowledge the language from both Jamar and Garza directing trial
courts not to consider motions for new trial unless or until a filing fee is paid. See
Garza, 137 S.W.3d at 38 (“We have held that ‘absent emergency or other rare
circumstances’ a motion for new trial should not be considered until the filing fee is
paid. Here, Garcia’s factual sufficiency complaint had to be raised in a motion for
new trial, but because she never paid the $15 fee, the trial court was not required to
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review it. As her complaint was never properly made to the trial court, it preserved
nothing for review[.]” (quoting Jamar, 868 S.W.2d at 319 n.3)); Jamar, 868 S.W.2d
at 319 n.3 (“The filing is not completed until the fee is paid, and absent emergency
or other rare circumstances, the court should not consider [the motion for new trial]
before then.”). Under this guidance, Ealy’s motion for new trial was not “completed”
because he never paid the filing fee, and the trial court was not required to consider
the arguments raised in that motion. However, we consider this to be an issue related
to whether the substantive arguments were properly before the trial court, and
therefore, whether they were properly preserved for appellate review. In our view,
this is an issue separate from whether a motion is considered timely “filed” for
purposes of a restricted appeal.
In sum, we hold that Ealy’s letter filed in the trial court on September 17 was
a timely-filed motion for new trial, and therefore, we do not have jurisdiction to
consider his restricted appeal. TEX. R. APP. P. 30; Ex parte E.H., 602 S.W.3d at 497.
Conclusion
We dismiss this appeal for want of jurisdiction.
Amparo Guerra
Justice
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
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