Before Morriss, C.J., Stevens and van Cleef, JJ. Opinion by Justice Stevens OPINION In this restricted appeal, Terry Hooten, independent executor of the estate of Carolyn Gayle Anglin, deceased (Hooten), claims that, because he received notice of neither the motion for summary judgment filed by Dayle Yeager and Garth Yeager, Jr., nor the summary judgment hearing, the summary judgment entered in favor of the Yeagers violated his due process rights. Because we conclude that Hooten has failed to demonstrate error on the face of the record, we affirm the trial court’s judgment. Background Garth Yeager, Sr., executed a will in which he left his surviving spouse—Mary Jo Yeager—a life estate in five parcels of land and left the couple’s children—Dayle Yeager, Garth Yeager, Jr., and Carolyn Gayle Anglin—as the remaindermen, in equal shares, of the property. Garth, Sr., passed away on August 30, 2001. As alleged in the original petition filed in the trial court on August 26, 2020, Mary Jo entered into a family settlement agreement with the children for the distribution of Garth, Sr.’s, estate. According to the petition, Anglin was to receive a cash payment equivalent to the value of one third of Garth, Sr.’s, estate in exchange for her remainder interest, with Dayle and Garth, Jr., each to receive a one-half remainder interest in the balance of the estate. The petition alleged that Anglin was paid $100,000.00 for her share of the estate under the family settlement agreement. The petition further alleged that Mary Jo distributed two of the parcels of real property to Dayle and Garth, Jr., before Anglin unexpectedly passed away in 2011. Mary Jo passed away on February 16, 2020, at which time, according to the petition, the remaining property in Garth, Sr.’s, estate passed in fee simple to Dale and Garth, Jr. In the petition, Dayle and Garth, Jr., sought the issuance of a judgment declaring Dayle the fee simple owner of one of the three undistributed parcels of real property and declaring Garth, Jr., and Dayle the fee simple owners of the two remaining undistributed parcels of real property. Hooten was eventually served with the petition, but only after Dayle and Garth, Jr., ascertained his correct address. After unsuccessfully attempting to serve Hooten at “18648 County Road 2192 E, Tatum, Texas 75691,” Dayle and Garth, Jr., filed a motion under Rule 106 of the Texas Rules of Civil Procedure for alternative service, claiming the address listed in the citation was not Hooten’s place of residence. The motion alleged that a further attempt to serve Hooten at “4628 Hwy 154, Cooper, TX 75432″ was likewise unsuccessful as the property was abandoned. The motion indicated that effective service could be accomplished by serving citation via certified mail to Hooten at “P.O. Box 1260, Tatum, TX, 75691.” The trial court authorized alternative service and service was successfully accomplished on September 15, 2020, by the method and at the address listed in the motion. Defendant’s original answer, filed on October 15, 2020, was signed by Terry Hooten. Hooten listed his address on the original answer as “P.O. Box 1260, Tatum, Texas.” The parties then began discovery. In March 2021, Hooten filed his responses to plaintiffs’ requests for admission. Identifying himself as the attorney for the defendant, Kris King signed the responses. King also signed the certificate of service. The reporter’s certification of Hooten’s May 2021 deposition likewise listed King as counsel for the defendant. Following this brief period of discovery, Dayle and Garth, Jr., filed their motion for summary judgment on September 21, 2021. The certificate of service on the motion read: “I certify that on September 21, 2021, a true and correct copy of Plaintiffs’ Motion for Summary Judgment was served on all parties and attorneys of record in accordance with the Texas Rules of Civil Procedure.” The automated certificate of electronic service indicated that the filer—Felicia Jones on behalf of Sarah Kaminar—served the motion “via email generated by the efiling system on the date and to the persons listed below.” The case contact was listed as Dulce Sanchez with an email address of [email protected] and was dated September 21, 2021. The automated certificate indicated that the email was sent to King’s email address.[1] In an order signed on September 23, 2021, the trial court set the motion for hearing on November 19, 2021. An automated certificate of electronic service likewise indicated that counsel for the Yeagers emailed the order setting the hearing to the same address at [email protected] on September 21, 2021. The record also includes the docket administrator’s November 9 notice of the November 19 summary judgment hearing directed to Hooten at 18648 County Road 2192 E., Tatum, Texas 75691. The summary judgment hearing went forward as scheduled. In the meantime, King took Dayle’s deposition on October 6, 2021. Hooten did not appear in person or through counsel at the summary judgment hearing on November 19. Counsel for the plaintiffs informed the trial court that no summary judgment response was filed and that Hooten was “noticed of the hearing date.” The court took judicial notice of its file and thereafter granted summary judgment for the plaintiffs. The summary judgment declared Dayle and Garth, Jr., as “the current record title holders in fee simple absolute of the subject property,” that Hooten had not raised a genuine issue of title, and that the Estate of Carolyn Yeager did not own any interest in the Estate of Garth Yeager, Sr. As a result of this course of events, Hooten filed this restricted appeal. King Acted as Counsel for Hooten in the Trial Court On appeal, the parties disagree on whether King represented Hooten in the trial court. In order to properly analyze the issues in this restricted appeal, we must initially resolve this issue. “The legal relationship of attorney and client is purely contractual.” Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex. App.—Texarkana 1989, writ denied). “The contract of employment may be implied by the conduct of the two parties.” Id. (citing Prigmore v. Hardware Mut. Ins. Co. of Minn., 225 S.W.2d 897 (Tex. App.—Amarillo 1949, no writ)). “All that is required is that the parties explicitly or by their conduct manifest an intention to create the attorney-client relationship.” Id. (citing Nolan v. Foreman, 665 F.2d 738 (5th Cir.1982)). Stated differently, “an attorney-client relationship may be established either expressly or impliedly from the conduct of the parties.” Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.—Houston [14th Dist.] 1997, writ dism’d by agr.); see In re Baytown Nissan Inc., 451 S.W.3d 140, 146 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); Sutton v. Estate of McCormick, 47 S.W.3d 179, 182 (Tex. App.—Corpus Christi 2001, no pet.). “Whether an attorney-client relationship can be implied depends upon an objective standard, looking at what the parties said and did to support an agreement to enter into one.” In re Baytown, 451 S.W.3d at 146. “The general rule is that the relationship of attorney and client is one of agency.” Tex. Emps. Ins. Ass’n v. Wrermske, 349 S.W.2d 90, 93 (Tex. 1961). “An agent’s authority to act on behalf of a principal depends on some communication by the principal either to the agent (actual or express authority) or to the third party (apparent or implied authority).” Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007). In the present case, the trial court’s docket sheet lists King as Hooten’s attorney. The record indicates that King was present at Hooten’s deposition and was listed on the reporter’s certificate as counsel for Hooten. King also filed “Defendant’s Response to Plaintiffs’ Request for Admissions” and signed those responses as counsel for Hooten. Finally, King took the deposition of Dayle Yeager on behalf of Hooten in the underlying lawsuit. The reporter’s certification of Yeager’s deposition stated “that pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record:” FOR THE DEFENDANTS: ADAMS, KING & SMITH Attorneys at Law 422 N. Center Street Longview, Texas 75601 BY: MR. KRIS KING At no point does the record reflect that King ever indicated that he was not authorized to act as Hooten’s counsel. Likewise, the record does not reflect that Hooten ever indicated that King was not authorized to act as his counsel. From this objective evidence, we are compelled to conclude that King acted as Hooten’s duly authorized agent or attorney of record for Hooten in the underlying lawsuit. See TEX. R. CIV. P. 21a(a). As a result, King was presumptively authorized to take all actions necessary to conduct the litigation. See Lohse v. Paulsel Lumber Co., 614 S.W.2d 899, 900–01 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.) (“[T]here is the presumption of agency from circumstances where there is the apparent relation as client and attorney and there is no denial and no evidence that agency did not exist.”). It is apparent from the record as well that the motion for summary judgment was served on King, and the record does not reflect that he ever indicated he was not authorized to receive same or to act as Hooten’s counsel. Restricted Appeal With certain exceptions, a “notice of appeal must be filed within 30 days after the judgment is signed.” TEX. R. APP. P. 26.1. A restricted appeal is one exception to this general rule. “A restricted appeal is a direct attack on a judgment,” Deutsche Bank Tr. Co., N.A. v. Hall, 400 S.W.3d 668, 669 (Tex. App.—Texarkana 2013, pet. denied) (citing PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012)), and is “available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment,” In re Estate of Head, 165 S.W.3d 897, 900 (Tex. App.—Texarkana 2005, no pet.) (quoting TAC Ams., Inc. v. Boothe, 94 S.W.3d 315, 318 (Tex. App.—Austin 2002, no pet.)). To prevail in this restricted appeal, Hooten must establish that: [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 postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991); TEX. R. APP. P. 26.1(c), 30. It is undisputed that Hooten has satisfied the first two requirements necessary for a restricted appeal. The parties dispute, though, whether Hooten participated in the hearing that resulted in the judgment and whether error is apparent on the face of the record. Participation in the Hearing “The policy behind the nonparticipation requirement is to deny appeal by [restricted appeal] to those who should reasonably resort to the quicker method of appeal.” Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996). In cases involving the appeal of a default judgment, the question is fairly straightforward. But “when a party participates in some but not all of the proceedings in the trial court,” the “question becomes more difficult.” Id. at 589. 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.” Id. Courts construe the nonparticipation requirement liberally in favor of a right to appeal. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985), abrogated on other grounds by Ex parte E.H., 602 S.W.3d 486 (Tex. 2020). An appellant bringing a restricted appeal is “not required to show diligence or lack of negligence before [his] complaints will be heard.” Texaco, Inc., 925 S.W.2d at 590. Stated differently, “[i]t is the fact of nonparticipation, not the reason for it, that determines a person’s right to pursue a restricted appeal.” Rodriguez v. Olivares, No. 13- 19-00609-CV, 2021 WL 1799796, at *2 (Tex. App.—Corpus Christi May 6, 2021, no pet.) (mem. op.). In the summary judgment context, the Texas Supreme Court has specifically stated that because “a summary judgment is decided on the evidence presented in support of, or in reply to, the motion for summary judgment,” Texaco, Inc., 925 S.W.2d at 589, “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,” id. (citing Stubbs, 685 S.W.2d at 645). As a result, we must determine whether Hooten participated in every step of the summary judgment proceeding other than attending the hearing. The Yeagers argue that Hooten participated by filing an answer to the lawsuit and by participating in written discovery and depositions. In support of their position that these actions constitute the requisite participation to preclude a restricted appeal, the Yeagers rely on Thacker v. Thacker, 496 S.W.2d 201 (Tex. App.—Amarillo 1973, writ dism’d). Because the appellant filed an answer to the summary judgment motion and attached an affidavit stating that she could not be present at the hearing on the motion, Thacker is inapposite. Id. at 203. In this case, Hooten neither filed a response to the motion for summary judgment nor participated in the hearing. In such a circumstance—assuming error on the face of the record—a restricted appeal is available. See Texaco, Inc., 925 S.W.2d at 589 (participation in summary judgment proceeding requires that party take part in all steps of proceeding except the hearing); Lake v. McCoy, 188 S.W.3d 376, 378 (Tex. App.—Dallas 2006, no pet.) (holding that appellant participated in the decision-making event when he filed a response to a motion for summary judgment, even though he did not attend a hearing); Havens v. Ayers, 886 S.W.2d 506, 509 (Tex. App.—Houston [1st Dist.] 1994, no writ) (“This Court has held that where an appellant neither filed a response nor appeared at the hearing on a summary judgment motion, appeal by writ of error [(restricted appeal)] is permissible.” (citing Stiver v. Tex. Instruments, Inc., 615 S.W.2d 839, 842 (Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.)); see also Tex. Dep’t of Pub. Safety v. J.W.D., No. 03-14-00101-CV, 2014 WL 7464229, at *1 (Tex. App.—Austin Dec. 31, 2014, pet. denied) (mem. op.) (“The fact that the Department had filed an answer and had notice of the hearing does not alter the fact that the Department did not participate in the actual decision-making event from which the expunction order resulted.”); Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 423 (Tex. App.—Dallas 2004, no pet.) (determining that defendant met non-participation requirement even though he filed an answer, was served with requests for admissions, and had notice of motion for summary judgment but did not respond or appear at summary judgment hearing). Because Hooten did not respond to the motion for summary judgment and did not appear at the summary judgment hearing, we conclude that he did not participate in the summary judgment proceedings. Although Hooten has satisfied the nonparticipation requirement, he has failed to show error on the face of the record. Error on the Face of the Record Hooten contends that there are multiple errors on the face of the record. He claims that he did not receive notice of the summary judgment or of the hearing on the motion. Hooten concedes that King received a copy of the motion for summary judgment but claims that was not sufficient because neither Hooten nor King received notice of the hearing date. The face of the record “consists of all the papers on file in the appeal, including the statement of facts.” Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). As a result, in our review, we may not consider any evidence “not before the trial court prior to final judgment.” Falcon Ridge Apartments, 811 S.W.2d at 944. A defect in notice of the filing and submission of the motion for summary judgment must appear on the face of the record. See Taylor v. Perricone, No. 03-16-00331-CV, 2017 WL 3585215, at *3 (Tex. App.— Austin Aug. 16, 2017, no pet.) (mem. op.). “When a party claims in a restricted appeal that required notice was not given . . . error must appear on the face of the record.” Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per curiam). Under Rule 166a(c), the motion for summary judgment and any supporting affidavits must be filed and served on the opposing party at least twenty-one days before the hearing. TEX. R. CIV. P. 166a(c). Although “an oral hearing is not mandatory” in a summary judgment proceeding, “[n]otice of hearing or submission of a summary judgment motion . . . is required” because “[t]he hearing date determines the time for response to the motion” and “without notice of hearing, the respondent cannot know when the response is due.” Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam); see Winn v. Martin Homebuilders, Inc., 153 S.W.3d 553, 556 (Tex. App.—Amarillo 2004, pet. denied) (“The notice provisions of Rule 166a are intended to prevent rendition of summary judgment without the non- movant having full opportunity to respond on the merits of the motion.”). Rule 21a of the Texas Rules of Civil Procedure, which governs the service of notices and motions, states: . . . . Every notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record in the manner specified below: Documents Filed Electronically. A document filed electronically under Rule 21 must be served electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager. . . . Documents Not Filed Electronically. A document not filed electronically may be served in person, by mail, by commercial delivery service, by fax, [or] by email . . . . When Complete. . . . . (3) 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. . . . . (e) . . . . A certificate by a party or an attorney of record . . . shall be prima facie evidence of the fact of service. TEX. R. CIV. P. 21a. The certificate of service on the motion for summary judgment stated that “a true and correct copy of Plaintiffs’ Motion for Summary Judgment was served on all parties and attorneys of record in accordance with the Texas Rules of Civil Procedure.”[2] This constitutes prima facie evidence of service of the motion for summary judgment. See TEX. R. CIV. P. 21a(e); Alvarez v. Thomas, 172 S.W.3d 298 (Tex. App.—Texarkana 2005, no pet.). As noted earlier, Hooten does not claim that King failed to receive the motion for summary judgment. Yet, Hooten complains that neither he nor King received notice of the summary judgment hearing. Rule 21a of the Texas Rules of Civil Procedure allows for electronic service of documents “[i]f the email address of the party or attorney to be served is on file with the electronic filing manager.” TEX. R. CIV. P. 21a(a)(1). It is undisputed that King’s email was on file to receive electronic service of documents. The record indicates that counsel for the Yeagers served the order setting the hearing on the motion for summary judgment on King via electronic service on September 21, 2021, as evidenced by the certificate generated confirming service of the pleading on an email address King designated for service. See TEX. R. CIV. P. 21a(a)(1), (3). Hooten argues, though, that lack of notice is apparent from the face of the record because the order setting the hearing on November 19, 2021, was not signed until September 23, 2021. The order was filed on September 21, and the electronic service was also accomplished on that date. The electronic service to King, therefore, indicates that service was accomplished before the trial court signed the order. From this, Hooten contends that we should find lack of notice on the face of the record. We disagree. Because the record indicates that King may have received an unsigned copy of the order, Hooten would have us infer that King did not receive timely notice of the hearing date. Yet, an “error that is merely inferred will not suffice” for “error that is apparent on the face of the record.” Forrester, 282 S.W.3d at 431. While it is true that the issuance of summary judgment is improper absent compliance with the notice provisions of Rule 166a, that rule does not impose an affirmative duty on the clerk or the opposing party to record the mailing of notice of the summary judgment submission date. See id. at 433 (rules governing dismissal for want of prosecution “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”) (citing Alexander, 134 S.W.3d at 849); see Falcon Ridge Apartments, 811 S.W.2d at 944 (“absence . . . of affirmative proof that notice of intent to dismiss . . . was provided does not establish error” on the face of the record); Karagounis v. David T. Lopez & Assoc., No. 01-01-00884-CV, 2003 WL 203478, at *1 (Tex. App.—Houston [1st Dist.] Jan. 30, 2003, no pet.) (mem. op.) (affirming default judgment where nothing in record affirmatively showed appellant did not receive proper notice of trial); Garcia v. Arbor Green Owners Ass’n, Inc., 838 S.W.2d 800 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (“When the rules do not impose a duty either on the parties or the court clerk to ensure that notice is affirmatively shown in the record, absence from the record of affirmative proof of notice does not establish error.”) (citing Falcon Ridge Apartments, 811 S.W.2d at 943–44). At most, the record here is silent regarding whether King received notice of the hearing date. See Forrester, 282 S.W.3d at 433 (“As to what does constitute error on the face of the record, we have clearly said that silence is not enough.”). The record before us includes a file-marked order signed on September 23, 2021, setting the summary judgment hearing for November 19, 2021. Nothing in the record affirmatively indicates that King did not timely receive a copy of this order or otherwise timely receive actual notice of the hearing date.[3] Hooten next contends that error is apparent on the face of the record because the record shows that the docket coordinator sent untimely notice of the hearing to him at an incorrect address. We have already determined that King acted as Hooten’s attorney in the trial court and, as such, was Hooten’s authorized agent. Rule 21a(a) provides, “Every notice required by these rules . . . may be served by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record in the manner specified.” TEX. R. CIV. P. 21a(a). Under the rule, Hooten was only entitled to notice if notice was not provided to his duly authorized agent or attorney of record. Because the record fails to show that King was not notified of the hearing, any defect in sending notice to Hooten fails to establish error on the face of the record. Conclusion Because Hooten has failed to show error on the face of the record in support of his restricted appeal, we affirm the trial court’s judgment. Scott E. Stevens Justice Date Submitted: August 4, 2022 Date Decided: September 23, 2022
