Appeal from the 434th Judicial District Court Fort Bend
County, Texas Trial Court Cause No. 12-DCV-197023
consists of Justices Boyce, Busby, and Wise.
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.
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.
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
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.
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.
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.
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.
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
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 ...