Rodrick Samples v. the Dallas County Special Civil Service Commission, Et A.

DISMISS; Opinion Filed December 4, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00920-CV
RODRICK SAMPLES, Appellant
V.
THE DALLAS COUNTY SPECIAL CIVIL SERVICE COMMISSION, THE DALLAS
COUNTY CIVIL SERVICE COMMISSION, AND DALLAS COUNTY, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC12-11245
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Myers
Opinion by Justice Myers
This is a restricted appeal of the trial court’s final order denying appellant’s “Motion to
Render Based on New Evidence or to Reverse or Remand,” which was brought as part of
appellant’s appeal of the Dallas County Special Civil Service Commission’s decision upholding
the termination of his employment. In eight issues, appellant challenges various aspects of the
trial court’s handling of the case. Appellees argue, among other things, that we lack jurisdiction
over the restricted appeal. We sustain appellees’ jurisdictional challenge and dismiss the appeal.
BACKGROUND AND PROCEDURAL HISTORY
Appellant Rodrick Samples was employed by the Dallas County Constable’s Office as a
deputy constable in Precinct Number 4. On June 6, 2011, his employment was terminated.
Appellant appealed his termination to the Dallas County Special Civil Service Commission
(“Commission”). A grievance hearing was held on December 6 and 7, 2011, at which appellant
appeared pro se. On December 21, 2011, the Commission upheld appellant’s termination. On
January 20, 2012, appellant filed a lawsuit appealing the Commission’s ruling upholding his
termination. Appellant’s original petition included a claim for violations of the Texas
Whistleblower Act. The civil service appeal and the Whistleblower Act claim were subsequently
severed. After the Whistleblower Act claims were severed, appellant filed an amended petition.
On July 11, 2013, appellant filed a “Motion to Render Based on New Evidence or to
Reverse or Remand” (“motion to render”) in the trial court. That motion sought, among other
relief, a remand of the case to the Commission to consider additional evidence that was not
presented at the grievance hearing. On January 16, 2014, appellees filed their response to
appellant’s motion to render, attaching the civil service hearing transcript and certain records
from the grievance hearing.
On January 21, 2014, the trial court held a hearing on appellant’s motion to render. At
the conclusion of that hearing, the trial court requested both parties to file supplemental briefs
with the court. On February 17, 2014, appellant filed, with leave of court, a brief supplementing
his motion to render. On February 24, appellees filed a response to appellant’s supplemental
brief. On March 19, the trial court signed an order setting a hearing on the now supplemented
motion to render for April 14, 2014.
Counsel for appellant did not appear at the April 14 hearing. On that same day, the trial
court signed an order denying the motion to render, and the order stated that it is final and
appealable. On July 7, 2014, appellant filed a “Motion for Finding that he is Authorized to File
Notice of Appeal Pursuant to Rule 4 of the Texas Rules of Appellate Procedure and Rule 306a of
the Texas Rules of Civil Procedure” (“rule 306a motion”). Additionally, appellant filed a
“Notice of Appeal Subject to Hearing by Trial Court” on July 14, 2014. The rule 306a motion,
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which was filed approximately 84 days after the trial court’s final order, alleged that on the
morning of April 14, 2014, as he was preparing to go to court, appellant’s counsel injured his
back and was unable to move without suffering extreme pain. See TEX. R. CIV. P. 306a(5)
(prescribing procedure for requesting additional time because of lack of notice of signed
judgment); TEX. R. APP. P. 4.2(a)(1) (“But in no event may the [extended time period] begin
more than 90 days after the judgment or order was signed.”). Counsel alleged that he was
subsequently ill and unable to do normal legal work on any consistent basis, and that he did not
learn about the trial court’s April 14 final order until Friday, June 13, 2014, after returning home
from the VA hospital. Appellees, however, pointed out in their August 1, 2014 response that the
affidavit that accompanied appellant’s rule 306a motion did not swear to all of the allegations in
the motion, i.e., the date he received notice of the judgment. See TEX. R. CIV. P. 306a(5)
(requiring party alleging late notice of judgment to file sworn motion with trial court establishing
date the party or its counsel first learned of the judgment).
On August 3, 2014, appellant filed a supplemental rule 306a motion that contained an
affidavit swearing the contents of the July 7, 2014 rule 306a motion were true and correct and
that, specifically, counsel did not learn that the court had entered a final appealable order until
the evening of Friday, July 13, 2014. The supplemental motion did not explain the apparent
discrepancy between the June 13, 2014 date originally alleged and the July 13, 2014 date sworn
to in the supplemental affidavit. The trial court set the hearing on appellant’s rule 306a motion
for August 5, 2014.
On August 5, 2014, the trial court signed an order denying the rule 306a motion. The
order contained the following findings:
1. On April 14, 2014, this Court issued an order denying Plaintiff’s Motion to
Render Based on New Evidence or to Reverse or Remand (the “Final Order”);
2. Plaintiff did not file a Motion for New Trial or any other plenary power
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extending motion within 30 days of the Final Order;
3. On July 7, 2014, Plaintiff filed a Motion for Finding that Plaintiff is Authorized
to File Notice of Appeal (“Plaintiff’s Motion”);
4. Plaintiff stated in his Motion that he did not learn of the signing of the Final
Order until June 13, 2014.
5. Plaintiff’s Motion was unsworn and unverified and the attached affidavits did
not swear to the date that Plaintiff had actual knowledge of the Final Order or that
such date was twenty days after the judgment was signed;
6. On August 3, 2014, Plaintiff filed a supplemental affidavit swearing to July 13,
2014, as the date he learned of the Final Order;
7. Plaintiff’s supplemental affidavit swears to a date that is after Plaintiff’s
Motion and was filed 30 days after June 13, 2014;
8. Plaintiff’s Motion was not heard within 30 days of June 13, 2014, and, in fact,
was filed six days before July 14, 2014;
9. Plaintiff did not file a Motion for New Trial or any other plenary power
extending motion within thirty days of June 13, 2014.
The court’s order concluded it lacked jurisdiction because appellant had not timely filed a
sworn or verified motion as required by rule 306a(5). The order further concluded that, even if
appellant had filed a proper rule 306a(5) motion, the court would still lack jurisdiction because
appellant had failed to obtain a ruling on the motion within thirty days of June 13, 2014, the date
appellant alleged he first learned of the trial court’s final order, or to file a motion extending the
court’s plenary power beyond thirty days of June 13, 2014. See, e.g., Moore Landrey, L.L.P. v.
Hirsch & Westheimer, P.C., 126 S.W.3d 536, 541 (Tex. App.––Houston [1st Dist.] 2003, no
pet.) (proper rule 306a(5) motion, even if timely filed, merely restarts post-judgment timetable;
trial court’s plenary power does not extend beyond thirty-day period of plenary power that
controls when no party files appropriate motion extending post-judgment period of plenary
power).
On August 6, 2014, appellant filed a motion in this Court asking that we change or amend
the appeal that had been filed to a restricted appeal. We granted this motion and ordered that this
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appeal would proceed as a restricted appeal.
DISCUSSION
The Texas Supreme Court summarizes the elements of a restricted appeal as follows:
A party can prevail in a restricted appeal only if: (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 postjudgment
motions or requests for findings of fact and conclusions of law; and (4) error is
apparent on the face of the record.
Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); see TEX. R. APP. P. 30.
“These requirements are jurisdictional and will cut off a party’s right to seek relief by way of
restricted appeal if they are not met.” Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.––Fort
Worth 2001, pet. denied).
Lack of participation is a jurisdictional requirement for review by restricted appeal.
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). A restricted appeal is
available for the limited purpose of providing a party that did not participate at trial the
opportunity to correct an erroneous judgment. Clopton, 66 S.W.3d at 516. It is not available to
give a party who suffers an adverse judgment at its own hands another opportunity to have the
merits of the case reviewed. Id. In determining whether the nonparticipation requirement of rule
30 is met, the question is whether the appellant participated in the “decision-making event” that
resulted in the order adjudicating the appellant’s rights. Withem v. Underwood, 922 S.W.2d 956,
957 (Tex. 1996) (citing Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex.
1996)); Aviation Composite Technologies, Inc. v. CLB Corp., 131 S.W.3d 181, 185 (Tex. App.––
Fort Worth 2004, no pet.); Clopton, 66 S.W.3d at 516. Participation in the decision-making
event producing the final judgment adjudicating a party’s rights will cut off that party’s ability to
proceed by restricted appeal. Aviation Composite Technologies, 131 S.W.3d at 185; Clopton, 66
S.W.3d at 516. Courts have recognized the nature and extent of participation that will preclude a
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restricted appeal is a matter of degree, because the rule must be applied in a wide variety of
procedural settings. Starks v. Tex. Dep’t of Criminal Justice, 153 S.W.3d 621, 626 (Tex. App.––
Amarillo 2004, no pet.).
According to the record in this case, the civil service hearing transcript and certain
records from the civil service grievance hearing were filed with the trial court prior to the
January 21, 2014 hearing. Appellant filed a brief in support of his motion to render; appellees
responded. During the January 21 hearing, when the trial court raised the question of whether
there was substantial evidence to support the Commission’s decision terminating appellant’s
employment, appellant’s counsel admitted, looking at the “cold record,” that “I think you’ll find
that there was substantial evidence.” But he also argued appellant should be able to present the
testimony of three witnesses who did not testify at the grievance hearing. Counsel provided a
tender of the testimony of the witnesses he wanted to call, after which the trial court questioned
each of the witnesses, who were present in court, and confirmed the material facts to which they
would testify. Appellees argued appellant had not made the necessary statutory showing to
justify presenting such evidence, which entailed establishing that the evidence was material and
there was a good reason for failing to present it in the hearing before the civil service
commission. See TEX. LOC. GOV’T CODE ANN. § 158.0122(b) (West 2008). Appellant’s counsel
responded that he was trying to make that showing. The trial court concluded it would allow the
parties to provide additional authority regarding the tender of live testimony in a civil service
appeal, after which it would determine whether the testimony was germane:
Here is what I want to do. . . . I’m going to allow the parties to give me any
additional authority they think I need to look at with regard to the tendered
testimony of the officers. And if I decide that that testimony is germane to this
hearing, I guess at a future date I’ll hear that testimony. If it’s not germane, then I
feel like I can make a decision based on the record that I have in front of me.
Both parties thereafter filed supplemental briefs with the court. Appellant’s supplemental
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brief included affidavits from two of the witnesses whose testimony had been tendered at the
January 21 hearing, and a CD containing sworn testimony from those individuals at a hearing
before the Texas Workforce Commission on appellant’s application for unemployment benefits.
As far as the April 14, 2014 hearing is concerned, however, it was not evidentiary in nature and
the merits of the motion to render were not discussed. After noting opposing counsel’s absence,
counsel for appellees urged the court to rule based on the briefs and exhibits that had already
been filed. The trial court agreed that, although appellant’s counsel was not present, it could rule
based upon the motions and exhibits. The court’s April 14 final order denying the motion to
render––the order from which appellant is attempting to appeal––states that it is based on review
of the motion, the pleadings on file, and the arguments of counsel.
The Texas Local Government Code does provide that a party in a proceeding under
substantial evidence review can apply to the court to present additional evidence. But the statute
specifies that the court may order that the additional evidence be taken before the commission
only if the court is satisfied the evidence is material and there were good reasons for failing to
present it in the proceedings before the commission. See id. The trial court’s responsibility, in
other words, is to determine whether the reasons provided were good and that the additional
information is material. That issue had been argued and briefed to the trial court prior to the
April 14, 2014 hearing. Consideration of the actual evidence, should the trial court have
determined it was material and there were good reasons for not submitting it at the December
2011 hearing, would have been the responsibility of the Civil Service Commission. See id.; City
of Laredo v. Buenrostro, 357 S.W.3d 118, 122 (Tex. App.—San Antonio 2011, no pet.) (“[T]he
Commission itself is the primary fact-finding body, and the question to be determined by the trial
court is strictly one of law.”).
In the context of a summary judgment, this Court has concluded that a restricted appeal is
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not available to a party who takes part in all necessary steps of the summary judgment
proceedings but fails to attend the summary judgment hearing. Rivero v. Blue Keel Funding,
L.L.C., 127 S.W.3d 421, 424 (Tex. App.––Dallas 2004, no pet.) (citing Norman v. Dallas
Cowboys Football Club, Inc., 665 S.W.2d 137, 139 (Tex. App.––Dallas 1983, no writ)); see also
Texaco v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996) (“[A] party who has taken
part in all steps of a summary judgment proceeding except the hearing on the motion has
participated in the ‘actual trial’ that determined the parties rights.”); Stubbs v. Stubbs, 685
S.W.2d 643, 645 (Tex. 1985) (same). In summary judgment practice, no oral hearing is required
prior to the trial court’s rendering a decision on the motion. See TEX. R. CIV. P. 166a(c) (stating
no oral testimony shall be received at the hearing). A party “participates” when he files a
response with controverting evidence. See Cent. Power & Light Co., 925 S.W.2d at 589; Stubbs,
685 S.W.2d at 645; Norman, 65 S.W.2d at 139–40. On the other hand, when a party neither files
a response nor appears at the hearing on a summary judgment motion, a restricted appeal is
permissible. See Rivero, 127 S.W.3d at 424 (appellant did not participate in decision-making
event where he did not respond to summary judgment motion and did not attend hearing on
motion for summary judgment); Norman, 65 S.W.2d at 139 (“A party need not actually be
present in court at a final plenary trial if he participated in earlier proceedings at which his rights
were determined.”); see also Parsons v. Dallas County, 182 S.W.3d 451, 453 (Tex. App.––
Dallas 2006, no pet.) (appellant did not participate in decision-making event where he did not
respond to the motion to dismiss and did not participate in hearing on motion); Aviation
Composite Technologies, 131 S.W.3d at 185 (because decision-making event was dismissal
hearing and appellants did not respond to motion to dismiss and did not attend dismissal hearing,
appellants did not participate in trial); McKnight v. Trogdon–McKnight, 132 S.W.3d 126, 130
(Tex. App.––Houston [14th Dist.] 2004, no pet.) (while appellant may have participated up to the
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point of final divorce decree, he did not participate in proceedings resulting in the decree,
therefore he satisfied the nonparticipation element of a restricted appeal).
In this case, the record shows appellant participated in the decision-making events that
led to the April 14, 2014 final order from which he is attempting to appeal. Specifically, counsel
for appellant appeared at the January 21, 2014 hearing, made a tender of the testimony he wanted
to present, argued the issue to the court, and subsequently filed a supplemental motion that
contained sworn exhibits supporting his contentions. Appellees responded. The record of the
April 14, 2014 hearing shows it was not evidentiary in nature; the merits of the motion to render
were not discussed. Furthermore, the trial court indicated it would rule based on the motions and
exhibits before it, and the court’s April 14 final order states that it is based on review of the
motion, the pleadings on file, and the arguments of counsel. We conclude appellant participated
in the proceedings below to such an extent that he cannot pursue a restricted appeal; thus, we do
not have jurisdiction to hear this restricted appeal. See Starks, 153 S.W.3d at 626 (“Because the
non-participation requirement is mandatory and jurisdictional, when an appellate court
determines that an appellant participated in the hearing that resulted in the judgment complained
of, the appropriate action is to dismiss the appeal for lack of jurisdiction.”).
Accordingly, appellant’s July 14, 2014 notice of appeal was untimely filed, and we
dismiss this appeal for want of jurisdiction. TEX. R. APP. P. 42.3.
140920F.P05
/Lana Myers/
LANA MYERS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RODRICK SAMPLES, Appellant On Appeal from the 160th Judicial District
Court, Dallas County, Texas
No. 05-14-00920-CV V. Trial Court Cause No. DC12-11245.
Opinion delivered by Justice Myers. Justices
THE DALLAS COUNTY SPECIAL CIVIL Bridges and Francis participating.
SERVICE COMMISSION, THE DALLAS
COUNTY CIVIL SERVICE
COMMISSION, AND DALLAS COUNTY,
Appellees
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
Judgment entered this 4th day of December, 2015.
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