In this=20
restricted appeal, Jon R. O'Kane challenges the trial court's =
decision to=20
grant Joseph Chuoke's motion for summary judgment. In six issues, =
O'Kane=20
asserts that (1) he is entitled to a restricted appeal, (2) the =
trial=20
court erred in granting O'Kane's trial counsel's motion to =
withdraw, (3)=20
the trial court lacked subject matter jurisdiction over Chuoke's=20
counterclaim, (4) the trial court erred in failing to grant =
O'Kane's=20
motion for continuance after his attorney withdrew, (5) his =
federal due=20
process rights were violated when the trial court failed to notify =
him of=20
the summary judgment order, and (6) the trial court erred in =
granting=20
Chuoke's motion for summary judgment when O'Kane had not yet filed =
an=20
answer to the counterclaim. We affirm.
On April 1,=20
2004, one week after Chuoke filed his answer, O'Kane's attorney =
filed a=20
motion to withdraw. Almost a month later, O'Kane filed a pro se =
motion for=20
continuance requesting that, upon the granting of his counsel's=20
withdrawal, the court should grant him a continuance to obtain =
counsel to=20
help him respond to outstanding discovery already propounded by =
the=20
defendants. The motion for continuance did not contain a request =
for=20
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=20
continuance. Two days later, Chuoke filed a counterclaim, and one =
week=20
after the withdrawal was granted, Chuoke filed requests for =
admission on=20
O'Kane. Chuoke later filed motions to compel and for sanctions. =
Chuoke=20
filed a motion for summary judgment based on the deemed =
admissions, which=20
was granted October 20, 2004. The trial=20
court sent its order granting summary judgment to O'Kane's =
attorney, who=20
had previously withdrawn from representing O'Kane. The letter was =
returned=20
on October 28, 2004. Three weeks later, on November 19, 2004, the =
trial=20
court granted Chuoke's motion for severance. On February 7, 2005, =
O'Kane=20
filed an untimely motion to extend the post-judgment deadlines, =
motion for=20
new trial, and motion for sanctions, which were all denied. On May =
9,=20
2005, O'Kane filed a notice of restricted appeal.
To attack a=20
judgment by a restricted appeal, the appeal must be filed: (1) =
within six=20
months after the judgment was rendered; (2) by a party to the =
suit; (3)=20
who, either in person or by counsel, did not participate in the =
hearing=20
that resulted in the judgment complained of; (4) who did not =
timely file a=20
post-judgment motion, request for findings of fact and conclusions =
of law,=20
or a notice of appeal within the time permitted by Rule 26.1(c) of =
the=20
Texas Rules of Appellate Procedure; and (5) the error appears on =
the face=20
of the record. See Tex. R. App. P. 30; Alexander v. =
Lynda's=20
Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Barry v. =
Barry,=20
193 S.W.3d 72, 74 (Tex. App.--Houston [1st Dist.] 2006, no pet.). =
Here,=20
the parties dispute whether error appears on the record. =
Specifically,=20
Chuoke contends that, "an appellant cannot, by way of restricted =
appeal,=20
seek to reverse a judgment which appears valid on the face of the =
record=20
because of something that occurred after the judgment was =
rendered--the=20
failure of the clerk to send notice of the judgment." We=20
disagree. In a=20
restricted appeal, we are limited to considering only the face of =
the=20
record, but our scope of review is otherwise the same as that in =
an=20
ordinary appeal; that is, we review the entire case. See =
Norman=20
Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. =
1997). The=20
face of the record, for purposes of restricted appeal review, =
consists of=20
all the papers on file in the appeal, including the reporter's =
record.=20
Id. The "error" on the face of the record is not solely =
limited=20
to the order entered by the trial court. Accordingly, we conclude =
that=20
this appeal falls within the parameters of a restricted appeal, =
and we=20
sustain issue one.
In his=20
second issue presented for review, O'Kane argues that the trial =
court=20
erred in granting his trial counsel's motion to withdraw. =
Specifically,=20
O'Kane contends that his trial counsel failed to comply with Rule =
10 by=20
not notifying him of a status conference set for May 13, =
2004--more than=20
one month after the motion was filed. An attorney=20
may withdraw from representation of a client only if the attorney=20
satisfies the requirements of Rule 10 of the Texas Rules of Civil=20
Procedure. Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. =
1990).=20
Rule 10 permits counsel to withdraw only upon written motion =
showing good=20
cause. Id. If no counsel is substituting for the =
withdrawing=20
attorney, counsel's motion must state "that a copy of the motion =
has been=20
delivered to the party; that the party has been notified in =
writing of his=20
right to object to the motion; whether the party consents to the =
motion;=20
the party's last known address and all pending settings and =
deadlines."=20
Tex. R. Civ. P. 10. A trial court abuses its discretion when it =
grants a=20
motion to withdraw which does not comply with the mandatory =
requirements=20
of Rule 10. We note=20
that the failure to specify any pending settings or deadlines may =
violate=20
the client's right to due process. Misium v. Misium, 902 =
S.W.2d=20
195, 197 (Tex. App.--Eastland 1995, writ denied). Even if the =
failure to=20
specify the pending settings or deadlines violated O'Kane's due =
process=20
rights, the error, if any, was waived. Fundamental error is very =
limited=20
in Texas jurisprudence. "Fundamental error survives today in those =
rare=20
instances in which the record shows the court lacked jurisdiction =
or that=20
the public interest is directly and adversely affected as that =
interest is=20
declared in the statutes or the Constitution of Texas." Pirtle =
v.=20
Gregory, 629 S.W.2d 919, 920 (Tex. 1982). Alleged error, =
including=20
claims that an individual's constitutional rights were violated, =
is waived=20
if not asserted in the trial court. There is no=20
indication in the record that O'Kane preserved error by objecting =
to the=20
motion to withdraw or by raising the issue of whether his due =
process=20
rights were violated at the trial court level. In fact, O'Kane =
agreed to=20
his counsel's withdrawal. Please be advised =
that an=20
order withdrawing Malcolm D. Dishongh and the law firm of Miller =
&=20
Scamardi as attorney for Plaintiff was signed on May 11, 2004. A =
copy of=20
that order has been enclosed. Therefore, the next status =
conference has=20
been re-set for August 5, 2004 at 10:00 a.m. If Plaintiff has not =
retained=20
counsel by this date, Plaintiff is required to appear on his own=20
behalf. If you have any =
questions,=20
please contact the court at [telephone number =
excluded]. Next, O'Kane =
complains of=20
the trial court's failure to provide him "any time" to retain new =
counsel=20
after granting his trial counsel's motion to withdraw. Here, =
O'Kane agreed=20
to his trial counsel's withdrawal, which was based on the =
development of=20
an actual conflict of interest. O'Kane argues that, because his =
counsel=20
neglected to inform him of the status conference, he was =
prejudiced=20
because, at the status conference, (1) he could have requested a=20
continuance to comply with Chuoke's discovery requests, (2) he =
could have=20
learned that his failure to answer Chuoke's requests for admission =
would=20
result in their being deemed admitted, and (3) he could have =
requested a=20
continuance to obtain new counsel. The record reflects that the =
trial=20
court notified O'Kane that the status conference had been re-set. =
Further,=20
O'Kane asserts that, had he known about the status conference, he =
would=20
have attended and requested additional time to comply with =
Chuoke's=20
requests for admission. The requests, however, were not filed =
until May=20
19--two days after the trial court notified O'Kane of the new =
status=20
conference date. Accordingly, we =
hold that=20
the trial court did not err in granting O'Kane's trial counsel's =
motion to=20
withdraw, and we overrule issue two.
In his third issue =
presented=20
for review, O'Kane=20
contends that the trial court lacked subject matter jurisdiction =
over=20
Chuoke's counterclaim After he=20
filed his counterclaim, the trial court notified Chuoke that he =
still owed=20
$1 on the filing fee. O'Kane argues that the counterclaim was=20
"conditionally" filed until the full filing fee was paid; =
therefore, the=20
trial court lacked subject matter jurisdiction over the =
counterclaim.=20
The record=20
indicates that Chuoke complied with the requirement that he pay a =
$15=20
filing fee at the time that he filed his counterclaim. =
See Tex.=20
Gov't Code Ann. =A7 51.317(b)(2) (Vernon 1998). O'Kane fails to =
direct this=20
Court to authority in support of his contention that Chuoke's =
failure to=20
pay the additional $1 security fee deprived the trial court of =
subject=20
matter jurisdiction over Chuoke's counterclaim, and we find none =
to=20
support his point of error. We overrule issue three.
In his=20
fourth issue presented for review, O'Kane contends that the trial =
court=20
erred in denying his motion for continuance to obtain counsel so =
that he=20
could prepare for trial. O'Kane=20
claims that the trial court "was obligated to provide [him] with a =
continuance, regardless of whether he filed a motion requesting =
one or=20
not." He further contends that he was not required to obtain a =
ruling on=20
his motion for continuance to preserve error. Although Rule 33.1=20
contemplates implied rulings may, in certain circumstances, be =
sufficient=20
to preserve error, in the present case, there is no indication =
that O'Kane=20
requested a ruling on his motion insofar as it was not set for=20
consideration by submission or at an oral hearing. Thus, no =
ruling,=20
express or implied, has been preserved for our review. =
See Tex.=20
R. App. P. 33.1. We overrule issue four.
In his=20
fifth issue presented for review, O'Kane argues that the failure =
of the=20
trial court to provide him with notice of the summary judgment =
order=20
amounted to a violation of his federal due process rights and that =
such=20
error is reversible in this restricted appeal. O'Kane does=20
not challenge the propriety or his timely notice of both Chuoke's =
motion=20
to sever and the trial court's severance order, which rendered =
final=20
Chuoke's summary judgment. Rather, O'Kane contends that his =
failure to=20
receive notice of the summary judgment was harmful because he was =
deprived=20
of an opportunity to timely file a motion to reconsider the =
summary=20
judgment order or file a motion for new trial. However, O'Kane =
fails to=20
explain why, upon receipt of notice of the order of severance, he =
was=20
prevented from pursuing such relief. Having=20
failed to show any harm, we overrule O'Kane's issue =
five.
In his=20
sixth issue presented for review, O'Kane asserts that the trial =
court=20
erred in granting Chuoke's motion for summary judgment when O'Kane =
had not=20
yet filed an answer to the counterclaim. Texas Rule=20
of Civil Procedure 92 states that, "[w]hen a counterclaim or =
cross-claim=20
is served upon a party who has made an appearance in the action, =
the party=20
so served, in the absence of a responsive pleading, shall be =
deemed to=20
have pleaded a general denial of the counterclaim or =
cross-claim[.]" Tex.=20
R. Civ. P. 92; Richards v. Am. Nat. Prop. & Cas. Co., =
195=20
S.W.3d 758, 763 (Tex. App.--Beaumont 2006, no pet.). The trial =
court did=20
not sign the summary judgment until October 20, 2004, more than =
five=20
months after the counterclaim was filed. Plaintiff filed several =
documents=20
in the interim. Under these circumstances, O'Kane has not =
demonstrated=20
error requiring reversal of the trial court's judgment. =
See Tex.=20
R. App. P. 44.1(a).
We affirm=20
the judgment of the trial court.
George C.=20
Hanks, Jr. 1. 2.