Opinions Released May 18, 2017

Janis v. AT&T Yellow Pages, Inc., No. 13-16-00431-CV (Memorandum Opinion by Justice Longoria; Panel Members: Justices Contreras and Benavides)

In this appeal from a judgment holding the appellant jointly and severally liable for his business’s advertising contracts, the Thirteenth Court of Appeals discussed the requirements for establishing agency.

Patrick Janis and Michael Bryant owned Calhoun Plumbing, Inc., d/b/a Mr. Rooter Plumbing. Janis signed an agreement to advertise Mr. Rooter Plumbing with Yellow Pages in February 2008, and Bryant signed another agreement with Yellow Pages in June 2009. Although the ads were published, Mr. Rooter Plumbing never paid for the advertising.

In January 2011, Yellow Pages sued Patrick Janis and Michael Bryant individually for the delinquent amounts. After a bench trial, the court entered judgment for Yellow Pages and held the defendants jointly and severally liable for approximately $21,000 in damages and $7,500 in attorney’s fees. Janis appealed, arguing he could not be held personally liable for the debt.

Held: Janis did not plead or prove agency as an affirmative defense. Moreover, Janis did not secure findings of fact and conclusions of law, so all findings necessary to support the judgment were presumed. The trial court’s judgment was affirmed.

Janis’s personal liability turned on the interpretation of his contracts with Yellow Pages.

Regarding the 2008 contract—which Janis personally signed—the Thirteenth Court noted that the law does not presume agency in the execution of a contract; it must be established as an affirmative defense. Yet, Janis did not plead agency as an affirmative defense. Thus, the issue was waived.

Moreover, even if Janis had pleaded agency as an affirmative defense, he failed to establish the necessary elements: (1) that he was acting as a representative; and (2) that he identified his principal. Although Janis’s 2008 contract identified his d/b/a—Mr. Rooter Plumbing—the contract did not identify his true principal, Calhoun Plumbing. Janis presented evidence that he had filed an assumed name certificate, but he did not prove that Yellow Pages had actual knowledge of the real principal. Thus, Janis could not avoid liability based on agency.

Regarding the 2009 contract—which Bryant signed—Janis and Bryant both testified about their business relationship, and the trial court held that Bryant had the authority to sign on Janis’s behalf. Moreover, although Janis requested findings of fact and conclusions of law, the trial court did not issue any findings. Thus, the court of appeals implied all relevant findings in support of the judgment.

Consequently, the trial court did not err in holding Janis personally liable for the agreements with Yellow Pages. The trial court’s judgment was affirmed.

Read the Full Opinion Here

Floyd v. Wharton County, No. 13-15-00480-CV (Memorandum Opinion by Justice Rodriguez; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal from a delinquent tax judgment, the Thirteenth Court of Appeals analyzed both the trial court’s and the court of appeals’ jurisdiction over the case.

Wharton County filed a delinquent tax suit against Charles Floyd, Bettie Griffin, Wilma Noman, and four deceased individuals. A default judgment was entered in March 2013. However, more than a year later on July 21, 2014, the court vacated the 2013 judgment and reinstated the case. A new judgment was issued August 17, 2015, and Floyd appealed pro se.

Floyd claimed that the trial court lacked jurisdiction and that the judgment violated his due process rights. The County, however, argued that the court of appeals did not have jurisdiction because the appeal was untimely.

Held: Both the trial court and the Thirteenth Court of Appeals had jurisdiction over the case. The trial court’s judgment was affirmed.

Thirteenth Court’s Subject Matter Jurisdiction

The Thirteenth Court first addressed its subject-matter jurisdiction over the case, i.e., whether the appeal was timely. The court noted that a notice of appeal must be filed within thirty days after the signing of the judgment. Here, that deadline was September 16, 2015. However, the thirty-day deadline may be extended an additional fifteen days if the appellant files both a notice of appeal with the trial court and a request for an extension with the appellate court. If the appellant files only the notice of appeal within these fifteen days, the motion for an extension is implied. However, the appellant must still offer the appellate court an explanation for the tardy filing.

Here then, the fifteen-day extension window ended on October 1, 2015. Lloyd filed his notice of appeal—but no motion for an extension—on October 5, 2015. The Thirteenth Court advised Floyd that his appeal was untimely and allowed him thirty days to correct the error. Floyd then amended his notice of appeal on November 2, 2015, explaining that he mailed his notice on September 30, 2015 and that “serious medical difficulties” prevented him from filing the notice sooner. Under Texas Rule of Appellate Procedure 9.2(b)(1), a mailed notice of appeal is timely if it is deposited in the United States mail before the filing deadline, and received within ten days of the deadline. The Thirteenth Court of Appeals thus held that Floyd’s notice of appeal was timely, and the initial notice implied a motion for an extension of time.

Moreover, when Floyd amended his notice of appeal on November 2, 2015, he also filed a motion for an extension providing the necessary explanation for his delay—“serious medical difficulties.”

Thus, the Thirteenth Court had subject-matter jurisdiction over the appeal.   

Trial Court’s Subject Matter Jurisdiction

The court next addressed whether the trial court had jurisdiction to vacate the 2013 judgment under Texas Tax Code section 33.56. Section 33.56 allows a court to vacate a judgment in a delinquent tax suit if the taxing unit files a petition in the same cause number requesting vacation of the judgment due to the failure to join a necessary party under the Texas Rules of Civil Procedure. Here, Wharton County moved to vacate the 2013 judgment under section 33.56. Floyd claimed this was insufficient because the County filed a motion rather than a petition. The Thirteenth Court rejected Floyd’s argument, noting that Black’s Law Dictionary defines a “petition” as a “formal written request presented to a court.”  Moreover, the Rules of Civil Procedure allow an appellate court to treat an improperly-named pleading as if it had the proper designation where justice requires. Wharton County’s motion satisfied all of the substantive requirements of a petition under section 33.56. Thus, Wharton County’s motion to vacate was sufficient to give the trial court subject matter jurisdiction under section 33.56.

Personal Jurisdiction

Finally, Floyd argued that the trial court lacked personal jurisdiction because the County did not serve the authorized representatives of the decedents’ estates. Yet, the record reflected that the County did in fact serve the decedents’ representatives by publication. This was sufficient to provide the trial court with personal jurisdiction.

Floyd further argued that the trial court lacked personal jurisdiction over him because he was not personally served with notice of the suit in Texas. However, Floyd generally appeared by filing an answer in the case. This appearance waived the personal jurisdiction issue.

Having rejected all of Floyd’s challenges to the judgment, the Thirteenth Court of Appeals affirmed.

Read the Full Opinion Here