                             NUMBER 13-16-00587-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

SAN JUANITA VIOLA ALDRETE,                                                  Appellant,

                                            v.

THE CITY OF MCALLEN,                                                         Appellee.


                  On appeal from the 92nd District Court of
                         Hidalgo County, Texas.



                        MEMORANDUM OPINION
            Before Justices Rodriguez, Longoria, and Hinojosa
                Memorandum Opinion by Justice Longoria

      Appellant San Juanita Viola Aldrete filed claims for negligence and respondeat

superior against appellee the City of McAllen to recover for injuries sustained when her

vehicle collided with a police car driven by a City police officer. By a restricted appeal,
Aldrete argues that the trial court erred by granting the City’s plea to the jurisdiction. We

reverse and remand.

                                      I. BACKGROUND

       Around 7:30 p.m. on November 7, 2009, Officer Aldo Rodriguez, a police officer

for the City of McAllen, was dispatched to investigate a report that a bicyclist was riding

on the road. A concerned citizen called the police, afraid that the bicyclist might be struck

by a vehicle because it was dark. While searching for the bicyclist, Officer Rodriguez

noticed a reckless driver weaving in and out of traffic and traveling 59 m.p.h. in a 45 m.p.h.

zone. Officer Rodriguez testified that he made a U-turn, activated his overhead lights,

and began pursuing the vehicle to initiate a traffic stop. Meanwhile, Aldrete had stopped

at a stop sign. She proceeded across the street in her vehicle and collided with Officer

Rodriguez’s vehicle. Aldrete asserts, and Officer Rodriguez does not dispute, that his

audible police siren was not activated; however, Aldrete also asserts that Officer

Rodriguez’s overhead lights were not on whereas he maintains that his overhead lights

were activated.

       On October 19, 2010, Aldrete filed suit to recover damages for personal injuries

she sustained during the accident. Aldrete originally named Officer Rodriguez and the

City of McAllen as defendants but later amended the petition to reflect the City as the sole

defendant. On January 14, 2013, the City filed a plea to the jurisdiction. Two days later,

Garcia & Karam, the law firm that represented Aldrete, filed a motion to withdraw as

counsel. On March 6, 2013, the Ruiz Law Firm entered an appearance on Aldrete’s

behalf. However, nine months later, the Ruiz Law Firm also filed a motion to withdraw.

On October 31, 2014, Manuel Guerra of the Guerra Law Firm filed an appearance on



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Aldrete’s behalf. Guerra filed a response to the City’s plea to the jurisdiction, and the trial

court held a hearing on the matter on November 17, 2014. The trial court denied the

City’s plea on December 23, 2014.

       Fifteen months later, on February 10, 2016, Guerra, too, filed a motion to withdraw

as counsel. A hearing on the matter was held on March 8, 2016; the trial court indicated

that it would grant Guerra’s motion to withdraw but did not sign an order granting the

motion at that time. Later that same day, the City filed a second plea to the jurisdiction

and served it to Aldrete personally, both to a post office box address and an e-mail

address. The trial court set the hearing for March 29, 2016 and e-mailed Aldrete with

notice of the hearing. Two days later, on March 10, 2016, the trial court signed the order

granting Guerra’s motion for withdrawal. The trial court then reset the hearing on the

City’s plea to the jurisdiction to March 30 and attempted to e-mail Aldrete. According to

Aldrete, she did not receive the notice of the hearing. Aldrete neither responded to the

second plea nor appeared at the hearing. The trial court granted the second plea on April

8, 2016 and once again e-mailed Aldrete with a copy to the same e-mail address. The

trial court severed Aldrete’s claims against the City on April 29, 2016. Aldrete was served

with notice of the final judgment from the clerk of the trial court on June 3, 2016 by mail.

On October 26, 2016, Aldrete filed this restricted appeal.

                                   II. RESTRICTED APPEAL

       In a single issue with four sub-issues, Aldrete argues that she meets all the

requirements to prevail in this restricted appeal, namely: (1) she timely filed notice of her

restricted appeal; (2) she was a party to the underlying lawsuit; (3) she did not participate

in the City’s second plea to the jurisdiction and she did not file any post-judgment motions;



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and (4) there are numerous errors apparent on the face of the record. See Pike-Grant v.

Grant, 447 S.W.3d 884, 886 (Tex. 2014).

A. Standard of Review

       To prevail on a restricted appeal, the appellant must establish that

       (1) she filed notice of the restricted appeal within six months after the
       judgment was signed; (2) she was a party to the underlying lawsuit; (3) she
       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. The first three requirements are jurisdictional whereas the final requirement defines

the scope and nature of the appellate court’s review. Norman Commc’ns v. Tex. Eastman

Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).

B. Discussion

       The City does not dispute that Aldrete was a party to the underlying suit, so we

sustain Aldrete’s second sub-issue, but the parties disagree as to the other three prongs

of restricted appeal.

       1. Did Aldrete Timely File Her Notice of Appeal?

       A restricted appeal must be filed within six months of the signing of the final

judgment that the party is appealing. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.013

(West, Westlaw through 2017 1st C.S.). According to Aldrete’s calculations, she timely

filed her notice of restricted appeal because the trial court signed the final judgment on

April 29, 2016 and she filed her notice of appeal on October 26, 2016.

       It is Aldrete’s contention that the final judgment issued on April 29, 2016 marked

her six-month window to file a restricted appeal. And because she filed her notice of

appeal on October 26, 2016, she argues that the appeal was timely filed, with a few days

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to spare. However, the City claims that the judgment became final and appealable on

April 8, 2016, when the trial court granted the City’s second plea to the jurisdiction, not on

April 29. If the deadline began on April 8, 2016 as the City contends, then Aldrete’s notice

of appeal would only have been considered timely if it was filed by October 10, 2016. We

must then determine if the April 8, 2016 order was final and appealable.

       As a general rule, an appeal may only be taken from a final judgment. Lehmann

v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “A judgment is final for purposes of

appeal if it disposes of all pending parties and claims in the record.” Id. The April 8, 2016

order stated:   “The Court finds it is without jurisdiction over Plaintiff’s claims and,

accordingly, hereby orders that all of Plaintiff’s claims be, and hereby are, dismissed with

prejudice.” Aldrete argues that the order was not final because even though it explicitly

dismissed all of her claims as plaintiff, the language in the order made no mention of

Intervenor Mauro Ruiz’s claims. Ruiz, Aldrete’s former counsel, intervened in the case,

asserting an interest in Aldrete’s recovery due to allegedly unpaid attorney’s fees. Thus,

Aldrete argues that the judgment did not become final until April 29, 2016 when the trial

court granted the City’s motion to sever Aldrete’s claims.

       The City argues that the order disposed of all of Ruiz’s claims because they were

contingent on Aldrete’s claims, which were dismissed. However, the City has not cited

any authority for the proposition that an attorney’s intervening claim for attorney’s fees

was held to be implicitly dismissed based on the disposal of the underlying claim. To the

contrary, in Guarjado v. Conwell, the Texas Supreme Court held that an order that

allegedly disposed of all claims was not final and appealable because it failed to

specifically dispose of the intervenor’s claim for attorney’s fees. 46 S.W.3d 862, 863 (Tex.



                                              5
2001). Therefore, we conclude that the case did not become final and appealable on

April 8 and that Aldrete timely filed her appeal. Aldrete’s first sub-issue is sustained.

       2. Did Aldrete Participate?

       To meet the third prong of a restricted appeal, “the question is whether appellants

participated in the ‘decision-making event’ that resulted in the order adjudicating

appellant[’s] rights.” Clopton v. Pak, 66 S.W.3d 513 (Tex. App.—Fort Worth 2001, pet.

denied). Here, Aldrete contends that she did not participate in any way in the court’s

consideration of the City’s second plea to the jurisdiction. She did not file an answer, she

did not appear at the hearing, and she did not file any post-judgment motions or notices

of traditional appeal. On the other hand, the City argues that Aldrete fully participated in

the decision-making event, the hearing on the first plea to the jurisdiction, because the

second plea to the jurisdiction was in essence a motion to reconsider. The City presented

no new evidence or any new arguments at the hearing on its second plea to the

jurisdiction; rather, the City simply urged the trial court to grant the motion based on the

evidence already before the court. And Aldrete filed a response and affidavit to the City’s

first plea to the jurisdiction and appeared in person to present her arguments. In other

words, the City argues that because Aldrete was involved in every step of the litigation

except for the final hearing, at which no new evidence was presented, she cannot claim

that she did not participate. We agree with Aldrete.

       “The decision-making event is the proceeding in which the questions of law and

fact are decided.” Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.—Austin 2009, no pet.).

But, as observed by the Texas Supreme Court:

       An appeal by writ of error is typically an appeal of a default judgment, in
       which participation is rarely a disputed issue. The question becomes more

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       difficult when a party participates in some but not all of the proceedings in
       the trial court. The nature and extent of participation that precludes appeal
       by writ of error in any particular case is a matter of degree because trial
       courts decide cases in a wide variety of procedural settings.

Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The Texas

Supreme Court continued by giving two examples:

       For example, a summary judgment is decided on the evidence presented in
       support of, or in reply to, the motion for summary judgment. A party may
       not present new evidence at the summary judgment hearing, and a
       statement of facts of the hearing is not necessary for appeal. Consequently,
       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. On the other hand, participation in a case
       tried to a jury requires some degree of involvement in the hearing in open
       court . . . on the questions of fact.

Id. (internal citations omitted). Neither party has cited, nor have we found, any case law

that analyzes the level of participation required to preclude restricted appeal in a plea to

the jurisdiction case. However, we do not agree with the State that Aldrete participated

to such a degree as to prevent her appeal.

       The second plea to the jurisdiction was before a different judge than the first plea

to the jurisdiction. It seems apparent from the record that the City hoped to receive a

different outcome from the second judge on their plea while Aldrete was unrepresented.

The hearing on the City’s second plea reads like a default proceeding. Moreover, the City

went so far as to represent that Officer Rodriguez’s emergency lights were activated—a

point that Aldrete contested and in which the previous trial court judge concluded might

constitute a fact issue. As the Texas Supreme Court observed in Texaco, an “appeal by

writ of error[, the predecessor to the restricted appeal,] is typically an appeal of a default

judgment, in which participation is rarely a disputed issue.” 925 S.W.2d at 589.




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       Given that Aldrete was absent from the hearing on the City’s second plea, the

City’s second plea was presented to a different trial court judge, the City’s oral rendition

of a fact that Aldrete disputed, and the rule that we are to liberally construe the rules

governing a restricted appeal in favor of the right to appeal, Stubbs v. Stubbs, 685 S.W.2d

643, 645 (Tex. 1985), we conclude that Aldrete did not participate in the decision-making

event. Aldrete’s third sub-issue is sustained.

       3. Error Apparent on the Face of the Record

       Aldrete’s fourth sub-issue, advanced by four further sub-issues, contends that

there is error apparent on the face of the record. As relevant to our disposition, Aldrete’s

second sub-issue contends that she was not provided with notice of the appealable order

as required by Texas Rule of Civil Procedure 306a. See TEX. R. CIV. P. 306a(3). Rule

306a(3) provides:

       Notice of judgment. When the final judgment or other appealable order is
       signed, the clerk of the court shall immediately give notice to the parties or
       their attorneys of record by first-class mail advising that the judgment or
       order was signed. Failure to comply with the provisions of this rule shall not
       affect the periods mentioned in paragraph (1) of this rule, except as
       provided in paragraph (4).

Id. The Fourteenth Court of Appeals has concluded that such failure constitutes a denial

of due process. See In re Gravitt, 371 S.W.3d 465, 472 (Tex. App.—Houston [14th Dist.]

2012, pet. denied). In a memorandum opinion that references Gravitt, the Fourteenth

Court of Appeals has also concluded that such failure constitutes error apparent on the

face of the record. See Telezone, Inc. v. Kingwood Wireless, No. 14-15-00742-CV, 2016

WL 7436813, at *2 (Tex. App.—Dec. 22, 2016, no pet.) (mem. op.). Although not binding

precedent, Telezone is persuasive.




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       The only rule 306a(3) notice in the clerk’s record is dated June 6, 2016 and relates

to the June 3, 2016 “Order Granting Entry of Final Judgment.” But, the order that finally

disposed of Aldrete’s personal injury claim is the April 29, 2016 severance order. See

Doe v. Pilgrim Rest Baptist Church, 218 S.W.3d 81, 82 (Tex. 2007) (per curiam); see also

Coastal Banc SSB v. Helle, 48 S.W.3d 796, 800 (Tex. App.—Corpus Christi 2001, pet.

denied). The clerk’s record contains no rule 306a(3) notice regarding that order. In

response, the City argues that Aldrete was provided with the trial court’s orders via e-

service, she did not avail herself of the procedure in rule 306a that allows for extension

of the trial court’s plenary power, and the record did not show that a rule 306a notice was

not provided. The City’s responsive arguments are unavailing.

       First, assuming without deciding that Aldrete received emails regarding the orders

in question, those emails do not satisfy the first-class mail requirement in rule 306a(3).

Even if rule 306a(3) allowed for electronic service, the City confuses the transmission of

emails with electronic service.     Rule 21a(b)(3) provides that, “Electronic service is

complete on transmission of the document to the serving party’s electronic filing service

provider. The electronic filing manager will send confirmation of service to the serving

party.” TEX. R. CIV. P. 21a(b)(3). In turn, rule 21(f) provides in relevant part:

       (1) Requirement. Except in juvenile cases under Title 3 of the Family Code
       and truancy cases under Title 3A of the Family Code, attorneys must
       electronically file documents in courts where electronic filing has been
       mandated. Attorneys practicing in courts where electronic filing is available
       but not mandated and unrepresented parties may electronically file
       documents, but it is not required.

       (2) Email Address. The email address of an attorney or unrepresented
       party who electronically files a document must be included on the
       document.




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Id. at R. 21(f)(1)–(2) (emphasis added). These rules allow an unrepresented party to

electronically file a document, but they do not mandate an unrepresented party to

electronically file a document. The effect of such discretion is that electronic service on

an unrepresented party cannot occur until the unrepresented party affirmatively

electronically files a document.

       Second, the City points to no authority supporting its proposition that a litigant must

file a motion in accordance with rule 306a(5) as a prerequisite to filing a restricted appeal.

Accordingly, this responsive argument is inadequately briefed. See TEX. R. APP. P.

38.1(i).

       Third, the City’s contention that the record is silent regarding notice under rule

360a(3) is too narrow. Although the City’s reference to a silent record is unclear, it

appears that for this argument, the City agrees with Aldrete that the April 29, 2016

severance order triggered the district clerk’s obligation to provide the rule 306a(3) notice.

In reviewing the notice requirements for dismissal hearings and final judgments or other

appealable orders, the Texas Supreme Court observes that “the rules do not impose upon

the clerk an affirmative duty to record the mailing of the required notices; accordingly, the

absence of proof in the record that notice was provided does not establish error on the

face of the record.” Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009) (per curiam)

(citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004)); see also TEX.

R. CIV. P. 165a(1), 306a(3). The City is correct in that the record contains no indication

that the district clerk provided a rule 306a(3) notice regarding the April 29, 2016 severance

order. However, it provides a rule 306a(3) notice regarding the June 3, 2016 “Order

Granting Entry of Final Judgment.” Aldrete contends that the district clerk’s mistaken



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belief that the June 3, 2016 “Order Granting Entry of Final Judgment” triggered its

obligation to provide a rule 306a(3) notice constitutes error apparent on the face of the

record. We agree and conclude that the district clerk’s erroneous belief that the June 3,

2016 “Order Granting Entry of Final Judgment” triggered its obligation to provide a rule

306a(3) notice constitutes error apparent on the face of the record. Aldrete’s fourth sub-

issue is sustained.

       4. Summary

       We have sustained all four of Aldrete’s sub-issues for her to prevail on restricted

appeal. See Pike-Grant, 447 S.W.3d at 886. Thus, we conclude it was an error for the

trial court to grant the City’s second plea to the jurisdiction.

                                       III. CONCLUSION

       The April 8, 2016 order granting the City’s second plea to the jurisdiction, made

final in the April 29, 2016 severance order, is REVERSED and the case is REMANDED

for further proceedings consistent with this opinion.


                                                                   NORA LONGORIA
                                                                   Justice


Delivered and filed the
22nd day of March, 2018.




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