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Opp v. Rainbow International, LLC

Court of Appeals of Texas, Tenth District

November 6, 2019

JASON ELLIOTT OPP AND JENNIFER JEAN OPP, Appellants
v.
RAINBOW INTERNATIONAL, LLC, Appellee

          From the 414th District Court McLennan County, Texas Trial Court No. 2018-919-5

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          JOHN E. NEILL JUSTICE

         In six issues in this restricted appeal, appellants, Jason Opp, and Jennifer Opp, advancing pro se, challenge the trial court's October 18, 2018 judgment in favor of appellee, Rainbow International, LLC.[1] We affirm.

         I. Background

         In April 2014, the Opps and appellee entered into a franchise agreement with an initial ten-year term and numerous requirements on the part of the Opps, the franchisees. Apparently, the franchise agreement was subsequently assigned to Spartan Construction, LLC, with the Opps personally guaranteeing the agreement.

         In its original petition, appellee asserted that the franchise agreement obligated appellants to submit weekly reports of gross sales, pay a license fee based on the reports of gross sales, make payments owed pursuant to a promissory note, and pay advertising and marketing fees. The agreement also provided for a charge for missed reports, dishonored checks, and late fees, including interest. Appellee alleged that, starting in November 2016 and continuing into 2017, appellants breached the agreement numerous times. The alleged breaches of the agreement included the failure to pay various licensing, marketing, and advertising fees. Additionally, appellants purportedly failed to make payments on the promissory note, stopped submitting reports of sales, provided checks that were later dishonored and resulted in additional fees, failed to provide certificates of insurance that were required under the agreement, and failed to submit tax returns that were also required under the agreement. As a result of these alleged breaches, appellee argued that it sustained $189, 686.08 in damages.

         On March 9, 2018, appellee filed suit, alleging breach-of-contract and breach-of-the-personal-guaranty claims against appellants and requesting damages, as well as attorney's fees. Though not a part of the Clerk's Record, appellants filed two motions to transfer venue from Texas state court to a federal court in Alaska, where they reside. There is no indication in the record that these motions were presented to the trial court, that hearing dates were ever requested, or that hearings were ever conducted on the motions.

         Thereafter, appellee filed a motion to compel because appellants failed to respond to discovery requests. After a hearing that appellants did not attend, the trial court granted appellee's motion to compel and set the case for a bench trial on October 18, 2018. In response to this ruling, appellants allegedly filed an unverified motion for continuance complaining that they did not receive notice of the hearing on appellee's motion to compel and seeking to postpone the scheduled October 18, 2018 trial setting. Once again, appellants' motion for continuance is not included in the record, and there is no indication that a hearing date was requested or that a hearing was ever conducted on this motion.

         In any event, on October 18, 2018, the trial court conducted a final hearing in this matter. Appellants did not attend the hearing. At the conclusion of the hearing, the trial court ruled in favor of appellee and awarded appellee $189, 686.08 in damages against appellants and Spartan Construction, LLC, jointly and severally. The trial court also awarded $40, 200 in attorney's fees for work done at the trial-court level and additional attorney's fees for appeals to this Court and the Texas Supreme Court, in the event that any appeals are filed. Three months later, on January 18, 2019, appellants filed their notice of restricted appeal in this matter.

         II. Restricted Appeal

         A restricted appeal is a direct attack on the judgment. Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex. App.-Houston [1st Dist.] 1999, no pet.). To prevail on a restricted appeal, the appellant "must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it 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." Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Tex. R. App. P. 30. Only the fourth element is at issue in this case.

         "[A] restricted appeal requires error that is apparent, not error that may be inferred." Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (emphasis in original). When determining whether error is apparent from the face of the record, we consider all the papers on file in the appeal, including the reporter's record. Norman Comm'cns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).

         III. ...


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