Lillie Faye Bills, Ola Lee Myers, and Vanquisha Everylee Jackson v. Oscar Eugene Mills and Antonio Lekeith English

Dissenting Opinion Filed August 22, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00413-CV

LILLIE FAY BILLS, OLA LEE MYERS, AND
VANQUISHA EVERYLEE JACKSON, Appellants
V.
OSCAR EUGENE MILLS AND
ANTONIO LEKEITH ENGLISH, Appellees

On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-20-18670

DISSENTING OPINION

Before Justices Reichek, Goldstein, and Garcia
Dissenting Opinion by Justice Garcia

I agree with the majority’s disposition of appellants’ first and third issues, but

I disagree with the majority’s conclusion that Myers is not a proper party to this

appeal. Accordingly, I respectfully dissent.

A. Summary

Ola Lee Myers plainly believes that the trial court’s judgment harms her—she

joined in the notice of appeal from that judgment and in the appellants’ brief seeking

reversal of that judgment. Nevertheless, the majority concludes that Myers is not a
proper party to this appeal because (i) Myers was never served with process, (ii) she

never appeared in the case, and therefore (iii) the judgment operated as a dismissal

of appellees’ claims against Myers. Although point (i) is correct, I believe that point

(iii) is untenable in light of the trial court’s judgment as a whole. Additionally, we

should not reach point (ii) because Myers has not argued that she did not appear in

the case.

Below I address point (iii) before turning to point (ii).

B. Myers is a proper party to this appeal.

The majority concludes that the judgment effectively dismissed Myers from

the lawsuit and thereby deprived her of any basis to be a proper appellant on appeal.

I disagree and would conclude that Myers is a party to the judgment and a proper

appellant for two reasons.

First, the judgment makes unspecified “Defendants” jointly and severally

liable for appellees’ attorneys’ fees. The style of the case at the top of the judgment

lists Bills, Myers, and Jackson as “Defendants,” and the body of the judgment never

defines “Defendants” differently. Although the judgment’s opening recitals state,

“Defendants Lillie Faye Bills and Vanquisha Everylee Jackson appeared pro se and

announced ready for trial,” the judgment nowhere states that Myers is not a

“Defendant” upon whom the judgment operates. The majority appears to conclude

that Myers is not one of the “Defendants” who is liable for appellees’ attorneys’ fees

based on Texas Rule of Civil Procedure 629 and Texas Property Code § 52.003, but

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I see nothing in those authorities to support the majority’s conclusion. In short, the

judgment appears to impose liability on Myers for appellees’ attorneys’ fees, so

Myers is a proper appellant.

Second, even if the judgment does not impose liability on Myers for appellees’

attorneys’ fees, the judgment deprives Myers of a property interest in the real estate

in question. The judgment specifically identifies the deed “purporting to transfer”

Oscar Mills’s house “to Lillie Faye Bills, Ola Lee Myers and Vanquisha Everylee

Jackson,” and it then proceeds to decree that the deed is invalid, is void, and “shall

not be considered a muniment of title or transfer of title to the Defendants [again

undefined] in this cause.” Beyond that, the judgment directs the district clerk to file

the judgment in Dallas County’s real-property records and “to strike the above

referenced Deed from the Property Records of Dallas County, in order to remove

any cloud on the title of Mr. Oscar Eugene Mills and Antonio Lekeith English in this

matter.” This last part of the judgment, at the very least, operates to deprive Myers

of the interest in real property ostensibly conveyed by the deed. Thus, I cannot agree

with the majority that the judgment merely dismissed Myers from the case. Because

the judgment voids the deed in Myers’s favor and orders the deed to be struck from

the property records, Myers is a proper party to pursue an appeal from the judgment.

See Jernigan v. Jernigan, 677 S.W.2d 137, 140 (Tex. App.—Dallas 1984, no writ)

(nonparty trust beneficiaries could appeal judgment that disbursed trust funds to

plaintiff’s lawyer instead of to beneficiaries as trust provided).

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C. We should overrule appellants’ second issue because appellants fail to
address an independent basis for the trial court’s exercise of personal
jurisdiction over Myers.

Because I would conclude that Myers is a proper appellant in this appeal, I

would directly address appellants’ second issue in which they contend that the trial

court did not acquire personal jurisdiction over Myers because she was never served

with process. Indeed, the majority indirectly addresses the second issue as well,

concluding that Myers was never served and did not appear before judgment before

holding that the judgment effectively dismissed appellees’ claims against Myers and

deprived Myers of the right to appeal. But instead of reaching the merits of

appellants’ second issue and appellees’ counterargument, I would overrule

appellants’ second issue because appellants do not address a possible independent

ground that supports the trial court’s exercise of jurisdiction over Myers.

In their second issue, appellants argue only that the trial court did not acquire

personal jurisdiction over Myers because Myers was never served with process.

Appellees respond that Myers appeared via Bills’s pro se answer because that answer

purported to be made on behalf of “Lillie Faye Mills [sic] et al.”

I agree with the majority that the record does not show that appellant Myers

was ever served with process. Nevertheless, in my view we should affirm the

judgment as to Myers because she did not address a possible independent basis for

the trial court’s exercise of jurisdiction over her—the possibility that she generally

appeared in this case via appellant Bills’s pro se answer, which can reasonably be

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read to be an answer on behalf of “Lillie Faye Mills [sic] et al.” The phrase “et al.”

means “and others,” and because appellees sued only two defendants besides Bills,

“and others” necessarily means Myers and Jackson. And if Bills’s answer constituted

an answer by Myers, then Myers was before the trial court even without service of

process. See TEX. R. CIV. P. 121 (providing that an answer constitutes an appearance

that makes service of citation unnecessary).

“When a separate and independent ground that supports a ruling is not

challenged on appeal, we must affirm the lower court’s ruling.” Prater v. State Farm

Lloyds, 217 S.W.3d 739, 740–41 (Tex. App.—Dallas 2007, no pet.). Although it is

true that appellees did not argue in the trial court—at least, not on the record—that

Bills’s answer constituted an answer and appearance by Myers, I would not assume

that the trial judge did not review the file before signing a judgment that adversely

affects Myers’s interests. Indeed, I would assume that she did. At the beginning of

the one-day trial, appellees’ attorney told the trial judge that Myers had never been

served, so the judge knew about of the possible defect of personal jurisdiction over

Myers. Nevertheless, the trial judge signed the judgment the same day as the trial. I

would infer that the judge believed she had the power to render a judgment adversely

affecting Myers’s interests because she saw Bills’s answer in the file and construed

it as an appearance by Myers. Cf. In re S.V., No. 05-12-00663-CV, 2014 WL

4294962, at *5 n.9 (Tex. App.—Dallas Aug. 21, 2014, pet. denied) (mem. op.)

(“[W]e may presume the trial court took judicial notice of its own files.”).

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Thus, in my view, the record presents a possible independent ground for

jurisdiction over Myers that she did not address in her sole appellate brief, and this

is fatal to her appeal. Although this rule is usually applied when independent grounds

are expressly argued on the record in the trial court, I would apply it to this case as

well because (i) the issue is one of jurisdiction over a defendant’s person and (ii) the

possible ground for jurisdiction is apparent on the face of the record, within the

permissible scope of judicial notice, and established by the rules of procedure. See

TEX. R. CIV. P. 124 (providing that a judgment may be rendered against a defendant

after service, acceptance or waiver of process, or an appearance by the defendant);

see also Kearns v. Heller, No. 04-23-01089-CV, 2024 WL 3433846, at *2 (Tex.

App.—San Antonio July 17, 2024, no pet. h.) (mem. op.) (holding that appellant

should have addressed in his opening brief the untimeliness of the hearing of his

TCPA motion, even though appellees did not object on that basis in the trial court,

because the hearing deadline was a mandatory statutory requirement and thus an

independent basis for the denial of motion). If Myers was surprised by appellees’

argument that Bills’s answer was an appearance by Myers, she could have sought

leave to amend appellants’ brief and address that argument. See TEX. R. APP. P. 38.7.

She opted not to.

I disagree with the majority’s decision to raise arguments on Myers’s behalf,

and accordingly I would overrule issue two without deciding the merits of whether

Bills’s answer constituted an appearance by Myers.

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D. Conclusion

I disagree with the majority’s holding that Myers is not a proper party to this

appeal. Accordingly, I respectfully dissent.

/Dennise Garcia/
DENNISE GARCIA
230413DF.P05 JUSTICE

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