Paula Beall v. Garrett Birdwell

Opinion filed January 16, 2025

In The

Eleventh Court of Appeals
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No. 11-23-00264-CV
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PAULA BEALL, Appellant

V.
GARRETT BIRDWELL, Appellee

On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. 27496

MEMORAND UM OPI NI ON
This is a restricted appeal from the trial court’s grant of summary judgment in
favor of Appellee, Garrett Birdwell. See TEX. R. APP. P. 30. Appellant, Paula Beall,
challenges the trial court’s judgment in three issues, contending that: (1) error is
apparent on the face of the record because she was not provided notice of the date
and time of the hearing on Birdwell’s motion; (2) the summary judgment evidence
is insufficient to support the damages awarded to Birdwell; and (3) exemplary
damages are not recoverable under the Deceptive Trade Practices Act (DTPA) as
Birdwell suggests. We reverse and remand.
I. Procedural Background
On January 24, 2023, Birdwell filed suit against Beall for breach of contract,
violations of the DTPA, and fraud. Beall appeared and answered pro se. On June 16,
2023, Birdwell filed his motion for summary judgment in which he sought to recover
actual and exemplary damages from Beall. Birdwell’s summary judgment evidence
consisted of his declaration and attachments and requests for admissions that Beall
failed to respond to, which the trial court deemed admitted.
On June 21, 2023, the trial court issued a setting notice that specified a July 17,
2023, hearing date on Birdwell’s motion. The notice was filed and e-served on
Birdwell’s counsel of record and mailed via USPS to Beall at the last known address
listed for her in the clerk’s file. However, the notice mailed to Beall was returned to
the trial court in its original sealed envelope with the stamped notation: “RETURN
TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO
FORWARD.” The original sealed envelope with this notation was filed with the trial
court clerk and is included in the clerk’s record on appeal. Further, other than an
isolated, uncorroborated hearsay statement made by Appellee’s counsel at the
summary judgment hearing, there is no indication in the record that subsequent
efforts were made to provide notice of the summary judgment hearing date to Beall.
Birdwell’s motion was presented to the trial court on July 17. Counsel for
Birdwell appeared at the hearing; Beall did not. The trial court granted Birdwell’s
motion on that date, and, in its final judgment, awarded Birdwell $264,151.97 in

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actual damages and the same amount in exemplary damages. On November 20,
2023, Beall filed her notice of restricted appeal with the trial court.
II. Standard of Review
Because this is a restricted appeal, Beall must establish each of the following:
(1) she filed a notice of restricted appeal within six months after the trial
court’s judgment was signed;
(2) she was a party to the underlying suit;
(3) she did not participate in the hearing that resulted in the judgment of which
she complains, 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.
Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020) (citing Pike-Grant v. Grant, 447
S.W.3d 884, 886 (Tex. 2014)); see also TEX. R. APP. P. 26.1(c), 30. The first three
requirements for a restricted appeal are jurisdictional. E.H., 602 S.W.3d at 496–97.
The fourth requirement focuses on the merits of Appellant’s grounds for appeal. Id.
at 497 (“An appellant who satisfies the first three requirements establishes the court’s
jurisdiction and must then establish error from the face of the record to prevail in the
restricted appeal.”).
Our review of a restricted appeal is limited to the “face of the record”; we may
not consider extrinsic evidence. Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
848–49 (Tex. 2004). The “face of the record” consists of all the evidence before the
trial court when it signed its judgment. Id. In reviewing the “face of the record,”
we may not draw any inferences or make any presumptions. Id. at 849. The record
on appeal in this case consists of the clerk’s record, the supplemental clerk’s record,
and the reporter’s record from the summary judgment hearing.

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Here, it is undisputed, and Birdwell concedes, that Beall has satisfied the three
jurisdictional requirements to pursue a restricted appeal. As such, we need only
address the fourth restricted-appeal requirement—whether error is apparent on the
face of the record.
III. Analysis
In her first issue, Beall contends that error is apparent on the face of the record
because the record shows that she did not receive notice of the summary judgment
hearing.
At the outset, we note that notice is a fundamental requirement of due process,
and such notice must afford all parties to the pending suit a meaningful opportunity
to be heard. Barrientos v. Barrientos, 675 S.W.3d 399, 405 (Tex. App.—Eastland
2023, pet. denied).
In summary judgment practice, Rule 166a of the Texas Rules of Civil
Procedure provides the framework for parties to receive and comply with the
requisite notice of a summary judgment proceeding. TEX. R. CIV. P. 166a(c) (the
summary judgment movant must give the nonmovant at least twenty-one days’
notice of the date and time of the hearing on the motion); Lewis v. Blake, 876 S.W.2d
314, 316 (Tex. 1994). The purpose of Rule 166a(c)’s notice provision is to provide
an opportunity for the nonmovant to respond to the motion within seven days of the
scheduled hearing date. Barrientos, 675 S.W.3d at 405; Winn v. Martin
Homebuilders, Inc., 153 S.W.3d 553, 556 (Tex. App.—Amarillo 2004, pet. denied).
Proper notice to the nonmovant of the hearing date and time is a prerequisite
to obtaining summary judgment relief, and it is incumbent on the summary judgment
movant to comply with the rule’s notice requirements. Lewis, 876 S.W.2d at 316;
Cruz v. Sanchez, 528 S.W.3d 104, 115 (Tex. App.—El Paso 2017, pet. denied);

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Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378, 383 (Tex. App.—Fort
Worth 2005, pet. denied) (summary judgment will be reversed if the movant does
not provide timely notice of the hearing date and time to the nonmovant). As such,
because the right to secure summary judgment exists only in compliance with
Rule 166a(c), a trial court errs when it grants summary judgment if the nonmovant
has not received timely and proper notice of the date and time of the hearing to be
held on the motion. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359
(Tex. 1998).
In the matter before us, error is apparent on the face of the record. The record
affirmatively shows that Beall never received the notice of the summary judgment
hearing that the trial court issued and mailed to her. The notice was returned to the
trial court in the same sealed envelope in which it was mailed to Beall with the
stamped notation: “RETURN TO SENDER NOT DELIVERABLE AS
ADDRESSED UNABLE TO FORWARD.” Further, there is no competent evidence
in the record that other attempts were made by the trial court or Birdwell to notify
Beall of the date and time of the hearing on Birdwell’s motion, despite Birdwell’s
obligation to assure that Beall received proper and timely notice of the hearing. See
Lewis, 876 S.W.2d at 316; Cruz, 528 S.W.3d at 115; Etheredge, 169 S.W.3d at 383.
In sum, and contrary to Birdwell’s assertions, there is no evidence in the record that
Beall received any notice or was aware of the date and time for the hearing.
Due process requires that all parties to a proceeding be afforded a meaningful
opportunity to be heard. Barrientos, 675 S.W.3d at 405. Because providing the
requisite notice of the hearing was not achieved, Beall was not permitted to respond
to or be heard on Birdwell’s motion. As such, due process was not afforded to her
in this instance.

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For the reasons stated above, we hold that error is apparent on the face of the
record. Accordingly, we sustain Beall’s first issue on appeal. Because our holding
on Beall’s first issue necessarily disposes of this appeal, we need not address her
remaining issues. See TEX. R. APP. P. 47.1.
IV. This Court’s Ruling
We reverse the judgment of the trial court and remand this cause to the trial
court for further proceedings consistent with this opinion.

W. STACY TROTTER
JUSTICE

January 16, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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