Motion Granted; Reversed and Remanded and Majority and Dissenting
Opinions filed July 8, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00400-CV
PRO CYCLES & ACCESSORIES, INC. D/B/A HONDA OF HOUSTON,
Appellant
V.
STEVEN CHRISTIAN, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2019-19667
DISSENTING OPINION
With no citation to relevant authority, the court uses Texas Rule of Appellate
Procedure 42.1(a)(2)(B) to grant a motion to dismiss a restricted appeal and set
aside the trial court’s judgment. The motion is agreed to by some, but not all, of the
parties to the trial court’s final judgment. The agreement required by Rule
42.1(a)(2)(B) is neither signed by both moving parties as required by the rule, nor
does the agreement set out the trial-court judgment the parties seek as required by
the rule. The motion requests that the final judgment be set aside, which would
include, perhaps unintentionally, an agreed interlocutory dismissal of claims and
counterclaims of appellee Steven Christian and Drake Powersports LLC, which is
not a party to this appeal.
The relevant dates and actions are:
• 3/18/2019: Plaintiff Christian sues defendants (1) Pro Cycles and
Accessories, Inc. and (2) Drake Powersports, LLC
• 9/16/2019: Trial court signs interlocutory default judgment regarding
liability of Pro Cycles for claims alleged by Christian
• 11/11/2019: Christian and Drake file agreed motion to dismiss with
prejudice all claims and counterclaims between them
• 11/11/2019: Trial court signs interlocutory order granting agreed motion by
Christian and Drake to dismiss with prejudice all claims and counterclaims
between them
• 11/21/2019: Trial court signs judgment in favor of Christian and against Pro
Cycles signed by trial court after bench trial on damages; judgment includes
Lehmann finality language1
• 12/23/2019: Expiration of trial court’s plenary power over final judgment
(no postjudgment motions filed)
1
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).
2
• 5/20/2020: Notice of restricted appeal filed by Pro Cycles; includes
statement that “Defendant desires to appeal all portions of the Final
Judgment”; Drake does not file notice of appeal2
• 2/16/2021: Christian signs confidential release, indemnity, and settlement
agreement (“Settlement Agreement”)
• 5/27/2021: Pro Cycles and Christian file joint motion to dismiss appeal
pursuant to Texas Rule of Appellate Procedure 42.1(a)(2)(B); Settlement
Agreement attached to motion does not follow Rule 42.1(a)(2) because it is
only signed by Christian and not Pro Cycles; Christian and Pro Cycles
“request the Court to set aside the trial court’s judgment without regard to
the merits and remand the case to the trial court for rendition of judgment in
accordance with the parties agreement” and does not limit their request to
the claims between them; Settlement Agreement signed by Christian but not
Pro Cycles is neither conditioned on action by the court of appeals, nor
contains proposed agreed judgment for trial court to render on remand
This court cites no authority, and I know of none, discussing whether Texas
Rule of Appellate Procedure 42.1(a)(2) applies to a restricted appeal when there is
no agreement of the parties that the requirements for a restricted appeal have been
met.3 It may well be that the plain meaning of Rule 42.1(a)(2) allows the trial
2
The court erroneously lists Drake as an appellant. See Tex. R. App. P. 25.1(c) (“A party
who seeks to alter the trial court’s judgment or other appealable order must file a notice of
appeal.”).
3
See Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) (“To sustain a restricted appeal,
the filing party must show that: (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
3
court’s final judgment to be set aside in a Rule 30 restricted appeal even if the
appellate record does not support restricted-appeal relief on a final and no-longer
appealable (by regular appeal) trial-court judgment. But as a restricted-appeal
appellant cannot reach the relief it seeks without showing it meets the test for a
restricted appeal, I question whether the use of Rule 42.1(a)(2) requires at a
minimum that all parties to the restricted appeal agree that the record supports a
restricted appeal. The trial court’s final judgment does not belong to the parties,
and appellate courts cannot set aside trial-court judgments merely because the
parties ask that they be set aside.
I do not think the court needs to engage in such a discussion, however,
because there is no agreement signed by both parties as required by Rule
42.1(a)(2). The settlement agreement that the parties and court rely on is signed
only by Christian. While I agree that settlement is to be encouraged, I do not
understand why the court allows settlement without compliance with the Texas
Rules of Appellate Procedure. Public policy dictates that final judgments remain
final except for the direct and collateral attacks recognized by law.
Accordingly, I dissent to this court’s judgment which “reverse[s] the trial
court’s judgment and remand[s] the case for further proceedings consistent with
this opinion,”4 which among other things, affects the October 11, 2019 dismissal
with prejudice of the claims and counterclaims of Christian and Drake. I would
deny the motion and allow Christian and Pro Cycles an opportunity to file an
post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is
apparent on the face of the record.”) (quotations omitted).
4
As the court’s opinion does not really explain anything, I do not understand what
“consistent with this opinion” means.
4
amended motion to dismiss that addresses the many concerns discussed in this
dissent.5
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Spain and Wilson (Wilson,
J., majority).
5
To the extent the parties simply want the litigation resolved, this objective could be
accomplished in a way that does not involve this court setting aside the trial court’s judgment in
a manner not authorized by the Texas Rules of Appellate Procedure. For example, the judgment
creditor could file a notice of satisfaction and/or release of judgment in the trial court, and the
appellant could move to dismiss this appeal under Texas Rule of Appellate Procedure 42.1(a)(1).
We have no plenary power to set aside trial-court final judgments merely because they are no
longer subject to enforcement.
5