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Mandala v. PNC Bank N.A.

Court of Appeals of Texas, Fourteenth District

March 23, 2017


         On Appeal from the 434th Judicial District Court Fort Bend County, Texas Trial Court Cause No. 12-DCV-197023

          Panel consists of Justices Boyce, Busby, and Wise.


          PER CURIAM

         This case concerns appellant Robert Mandala's alleged default on a commercial real estate loan. On December 21, 2015, appellant appealed the judgment obligating him to pay to appellees PNC Bank N.A. and Wells Fargo Bank, N.A. the amount in default and attorney's fees. Briefing is complete.

         On December 6, 2016, appellees filed a motion to dismiss the appeal. The motion asserts the appeal is moot because appellant has paid the total amount due and did not express an intent to continue the appeal. At the court's request, appellant filed a response to the motion. He contends the appeal is not moot because his payment was involuntary and made under duress.


         On October 20, 2016, appellant's lawyer Paul McConnell emailed Christopher Chauvin, counsel for appellees, about appellant paying off the loan. McConnell's email stated, "We are in the process of closing a potential loan next week and need a payoff good through November 1 so we can see if the deal will work. Please get this to me ASAP." Chauvin sent McConnell the requested information on October 24, 2016.

         On November 2, 2016, Thomas Osborne of Old Republic Title, the title company involved in the "potential loan" McConnell referenced, emailed Chauvin. Osborne wrote, "In addition to a release of lien, my underwriter is requiring confirmation that the lawsuit/appeal will be dismissed, or if not fully disposed, adequate assurance that all claims involving the subject property will be severed from the suit." Chauvin responded, "The lawsuit and appeal will be dismissed upon confirmation of receipt of funds by our side." Full payment was wired to appellees' loan servicer on November 8, 2016.

         Within the next few days, agreed pleadings to dismiss the appeal were sent to appellant's counsel. The motion to dismiss does not identify that lawyer. It appears from appellant's response, however, that the pleadings were sent directly or made their way to David Sadegh, appellant's trial counsel. Appellant's response suggests Sadegh was unaware of the communications between McConnell, Chauvin, and Osborne concerning dismissal of the appeal. The motion states that "[appellant's] counsel responded that [appellant] refused to dismiss any portion of this appeal." Presumably "counsel" in that statement refers to Sadegh, not McConnell.

         On November 17, 2016, appellant personally filed an application in the district court to have his cash bond of more than $430, 000 released to him. The pre-printed form states "No Motion for New Trial or Notice of Appeal has been filed and all matters have been concluded in the above case." A file-stamped copy of the application is attached to the motion to dismiss. Appellant acknowledges the application in his response but says Sadegh "replaced [appellant's] form application with a Motion for Disbursement which did not contain any erroneous language about all matters being concluded in the case." A document entitled "Motion for Disbursement of Cash Bonds" is attached to appellant's response. It does not bear a file-stamp or other indication that it was filed. The certificate of service says it was served to Chauvin by email on December 6, 2016. The motion for disbursement does not mention this appeal.


         "The Texas rule is not, and never has been, simply that any payment toward satisfying a judgment, including a voluntary one, moots the controversy and waives the right to appeal that judgment." Miga v. Jensen, 96 S.W.3d 207, 211 (Tex. 2002) ("Miga I"). A controversy is not mooted by a payment made under economic duress, such as the duress implied by the threat of statutory penalties and accruing interest. See id.; Highland Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982). But, a controversy is mooted if a judgment debtor (1) satisfies a judgment, and (2) does not "clearly express[] an intent . . . to exercise his right of appeal." Id. at 211, 212; see BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 770 (Tex. 2005) ("[T]he payment of a judgment without an 'expressed intent' to continue an appeal moots the appeal, but payment with such an expression does not."). Under those circumstances, the debtor waives his right to appeal and the appeal must be dismissed. Id.

         In Miga I, the debtor, Jensen, made a payment pursuant to an agreed order, which stated the purpose of the payment was to terminate the accrual of post-judgment interest. Id. at 212. The evidence in Miga I established that "Jensen informed Miga that he believed the Agreed Order would not moot his complaint, and that he would continue to pursue appellant review." Id. The supreme court held that because Jensen's payment was coupled with an expressed intent to pursue his appeal, he did not waive his right to continue to contest the judgment. Id. Therefore, the appeal was not moot.[1] Id.

         In this case, there is no evidence that appellant "clearly express[ed] an intent" to continue the appeal despite his payment of the judgment, and appellant does not contend otherwise. Instead, appellant's ...

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