Court of Appeals of Texas, Third District, Austin
THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO.
C-1-CV-18-001498, THE HONORABLE ERIC SHEPPERD, JUDGE
Justices Goodwin, Baker, and Triana
D. Triana, Justice.
Miles Macut filed this restricted appeal from the trial
court's judgment in favor of Cool Insulation Company.
Because Macut has failed to demonstrate error on the face of
the record, we affirm the trial court's judgment.
2017, Macut hired Cool Insulation to insulate a house that
was under construction in Jonestown (the Jonestown property).
The parties did not execute a written contract. Cool
Insulation installed the insulation and sent Macut an invoice
for $16, 045 for the work performed, but Macut did not pay.
Cool Insulation then executed an affidavit to claim a
materialmen's lien, which was filed with the Travis
County Clerk. See Tex. Const. art. XVI, § 37
(providing for materialmen's liens); Tex. Prop. Code
§§ 53.021-.026 ("Persons Entitled to
Lien"). In February 2018, Cool Insulation sued Macut for
breach of contract, unjust enrichment, suit on sworn account,
and foreclosure of the materialmen's lien, seeking $16,
045, allowable interest and costs, and attorney's fees.
Although Macut was served with process, Macut did not file an
answer, and Cool Insulation moved for entry of default
judgment. The trial court entered a judgment awarding Cool
Insulation $16, 045 for its work, $3, 500 in attorney's
fees, and post-judgment interest. Macut does not dispute
these facts, but argues on appeal that the property was his
homestead, which was entitled to constitutional and statutory
protections that Cool Insulation failed to comply with. He
therefore contends that error is apparent on the face of the
record, warranting reversal of the trial court's
party does not participate in person or through counsel in a
hearing that results in a judgment, he may be eligible for a
restricted appeal. Pike-Grant v. Grant, 447 S.W.3d
884, 886 (Tex. 2014) (per curiam) (citing Tex.R.App.P. 30).
To sustain a proper restricted appeal, the filing party must
prove: (1) 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 post-judgment motions or requests for
findings of fact and conclusions of law; and (4) error is
apparent on the face of the record. Id. (citing
Alexander v. Lynda's Boutique, 134 S.W.3d 845,
848 (Tex. 2004)). The parties do not dispute the first three
elements, but they disagree as to whether error is apparent
on the face of the record. The face of the record, for
purposes of a restricted appeal, consists of all the papers
that were before the trial court when it rendered its
judgment. See Alexander, 134 S.W.3d at 848-49;
General Elec. Co. v. Falcon Ridge Apartments, Joint
Venture, 811 S.W.2d 942, 944 (Tex. 1991) ("The rule
has long been that evidence not before the trial court prior
to final judgment may not be considered in a writ of error
proceeding."). These requirements are jurisdictional and
cut off a party's right to seek relief by way of a
restricted appeal if they are not met. Cox v. Cox,
298 S.W.3d 726, 730 (Tex. App.- Austin 2009, no pet.) (citing
Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.-Fort
Worth 2001, pet. denied)).
asserts, without any citation to the record, that the record
shows the property was his homestead. If the property were a
homestead, then the homestead protections of Article XVI,
section 50, of the Texas Constitution and section 53.254 of
the Property Code would apply, and Cool Insulation would not
have been entitled to a lien on the homestead in the absence
of a written contract. See Tex. Const. art. XVI,
§ 50(a)(5) (allowing materialmen's liens on a
homestead "if contracted for in writing"); Tex.
Prop. Code § 53.254 (requiring a written contract to
"fix a lien on a homestead"). Although Macut states
in his brief on appeal that he and some of his family members
moved into the home in June of 2018 (five months after Cool
Insulation filed its affidavit for a materialmen's lien),
there is no evidence of this in the record. Instead, in
addition to the Jonestown property, the record shows two
other addresses for Macut, one in Cedar Park and one in Lago
Vista. It is not clear from the record which, if any, of
these addresses is or was Macut's homestead. Macut also
asserts that by "constructing the home, securing
services for insulation in the home, and further developing
the Property," Macut outwardly attempted to prove his
intention to use the Jonestown property as his homestead and
that his actions "should have put an experienced
contracting company, such as Cool, on notice that he intended
to use the property as his homestead." However, ...