       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-18-00729-CV



                                Douglas Miles Macut, Appellant

                                                    v.

                              Cool Insulation Company, Appellee




            FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
      NO. C-1-CV-18-001498, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Douglas Miles Macut filed this restricted appeal from the trial court’s judgment in

favor of Cool Insulation Company. Because Macut has failed to demonstrate error on the face of

the record, we affirm the trial court’s judgment.

               In 2017, Macut hired Cool Insulation to insulate a house that was under

construction in Jonestown (the Jonestown property). The parties did not execute a written

contract. Cool Insulation installed the insulation and sent Macut an invoice for $16,045 for the

work performed, but Macut did not pay. Cool Insulation then executed an affidavit to claim a

materialmen’s lien, which was filed with the Travis County Clerk. See Tex. Const. art. XVI,

§ 37 (providing for materialmen’s liens); Tex. Prop. Code §§ 53.021-.026 (“Persons Entitled to

Lien”). In February 2018, Cool Insulation sued Macut for breach of contract, unjust enrichment,

suit on sworn account, and foreclosure of the materialmen’s lien, seeking $16,045, allowable
interest and costs, and attorney’s fees. Although Macut was served with process, Macut did not

file an answer, and Cool Insulation moved for entry of default judgment. The trial court entered

a judgment awarding Cool Insulation $16,045 for its work, $3,500 in attorney’s fees, and post-

judgment interest. Macut does not dispute these facts, but argues on appeal that the property was

his homestead, which was entitled to constitutional and statutory protections that Cool Insulation

failed to comply with. He therefore contends that error is apparent on the face of the record,

warranting reversal of the trial court’s judgment.

               When a party does not participate in person or through counsel in a hearing that

results in a judgment, he may be eligible for a restricted appeal.           Pike-Grant v. Grant,

447 S.W.3d 884, 886 (Tex. 2014) (per curiam) (citing Tex. R. App. P. 30). To sustain a proper

restricted appeal, the filing party must prove: (1) he filed notice of the restricted appeal within

six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he 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. Id. (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845,

848 (Tex. 2004)). The parties do not dispute the first three elements, but they disagree as to

whether error is apparent on the face of the record. The face of the record, for purposes of a

restricted appeal, consists of all the papers that were before the trial court when it rendered its

judgment.    See Alexander, 134 S.W.3d at 848-49; General Elec. Co. v. Falcon Ridge

Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (“The rule has long been that

evidence not before the trial court prior to final judgment may not be considered in a writ of error

proceeding.”). These requirements are jurisdictional and cut off a party’s right to seek relief by

way of a restricted appeal if they are not met. Cox v. Cox, 298 S.W.3d 726, 730 (Tex. App.—

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Austin 2009, no pet.) (citing Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001,

pet. denied)).

                 Macut asserts, without any citation to the record, that the record shows the

property was his homestead. If the property were a homestead, then the homestead protections

of Article XVI, section 50, of the Texas Constitution and section 53.254 of the Property Code

would apply, and Cool Insulation would not have been entitled to a lien on the homestead in the

absence of a written contract. See Tex. Const. art. XVI, § 50(a)(5) (allowing materialmen’s liens

on a homestead “if contracted for in writing”); Tex. Prop. Code § 53.254 (requiring a written

contract to “fix a lien on a homestead”). Although Macut states in his brief on appeal that he and

some of his family members moved into the home in June of 2018 (five months after Cool

Insulation filed its affidavit for a materialmen’s lien), there is no evidence of this in the record.

Instead, in addition to the Jonestown property, the record shows two other addresses for Macut,

one in Cedar Park and one in Lago Vista. It is not clear from the record which, if any, of these

addresses is or was Macut’s homestead. Macut also asserts that by “constructing the home,

securing services for insulation in the home, and further developing the Property,” Macut

outwardly attempted to prove his intention to use the Jonestown property as his homestead and

that his actions “should have put an experienced contracting company, such as Cool, on notice

that he intended to use the property as his homestead.” However, the record shows only that

Macut secured insulation for the house but did not pay for it. The record contains no evidence

showing that the Jonestown property was Macut’s homestead. Because the error alleged by

Macut is not reflected on the face of the record, we overrule Macut’s issues on appeal and affirm

the trial court’s judgment.



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                                             __________________________________________
                                             Gisela D. Triana, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed

Filed: August 22, 2019




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