### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00663- CV

Alvin W. B yrd, Jr., Appellant

v. Nicolas & Mor ris, a Texas G eneral P artner ship , Appellee

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 22ND J UDICIAL DI STRICT NO. 08- O- 0394 , H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Pro se ap p el l an t Alvin W. By rd, J r. complains of t he trial court’s judgment, which decla red that appellee , law firm Ni co l as & M orris, owns a parc el of land in Caldwell County , a parc el that appa

rently used to be owne d by

one of B y

rd’s for ebea

rs. We aff

irm the judg ment.

F actual and Proc edural Backgroun d Nicolas & Morris filed its orig inal petition, alleg ing it was the owner of a trac t of land that was at some point partitioned to Nathan By rd. Nicolas & Morris’s suit named as defe ndants “the unknown heirs of Nathan By rd” and sever al other people and asser ted that the firm was the leg al

owner of the proper

ty under the doctri n e o f ad v erse possession, stating it had held peac eful and continuous possession of the proper ty “under color of title with deeds from rec ord o wn er s o f the
p ro p er t y ” since 1983, g razing cattle, pay ing taxes, and filing a descr iption of the trac t with t h e county ’s appraisal di strict. Appellan t By rd , one of Nathan By

rd’s heirs, filed an answe r i n whichhe contested the validity of Nicolas & Morris’s claim of title, asser ting that any deeds in the firm’s favor wer e invalid beca

use the land rec ords did not “e s t abli sh any relinquishing of the rig hts of” By rd, that Nicolas & Morris never attempted to “c laim ownership rig hts ag ainst [By rd] in the said five y ear s prior to filing” its suit, and that Nicolas & Morris was “actua l l y a tenant-a t-suffe ranc e” th a t la c k e d p o s s e s s o r

y r ig h ts o r a n y v e s te d in

te r e s t in th e p r o p e r

ty

. T h e tr ia l c o u

r t h e ld a f in a l h e a r in g in the case on April 12, 2010. By rd di d not appea

r, but the t rial court’s judgme nt states that By rd

was g iven notice of the hear ing. The defe ndants wer e repr esente d by an attorney ad litem who had been a ppointed when the suit wa s filed. During the April 12 hear ing, Conrad Morris and Toufic Nicolas testified. Morris explained that in 1983, former partne r J ohn Ba rrow acquir ed the proper

ty from B.W. Be ll, that the deed had been filed in the county ’s deed re cords, that Ba rrow took owner ship of the proper ty as
trus t ee for the firm, and that Ba rrow deede d the proper

ty to the firm in 1995. Be ll acquir ed the
proper ty in J uly 1970 from Ba sil Z im Zo re s , who acquir ed the proper ty in April 1970. Morris 1 testified that the land was openly cultivated and used for cattle g razing by the firm and by a family
to whom the firm lease d the proper ty starting in 1988. Since the firm acquir ed the proper ty in 1995, it had paid all t axes and had re- lease d the property to the s ame family

. During the t ime they have been leasing the l and, the lessees have gra zed cattle, built and maintained f encing , g rown ha

y and
water melons, and eve n lived on the prope rty for a bout ten y ear s. After the presentation of Nicolas & Morris’s evidence, the attorney ad l item stated that he had g one throug h the rec ords and had “no objection to this g oing forwa rd.” The trial court

The law firm produce d copies of deeds betwee n th e By rd fo rebears and Z ores, betwee n 1 Z ores a nd Be ll, between B ell and B arr ow, and be tween B arr ow and the la w firm. 2signe d a judgme nt in Nicolas & Morris’s favor , g iving the firm title to the proper ty fre e of any claims by By rd or other heirs of Nathan By rd or the other past owner s. No post-judgme nt motions wer e filed, and B y

rd filed his notice of

appea l on September 28, 2010.

Discussion Under the rules of appella t e p ro cedure, a notice of appea l g ener ally must be filed within thirty

day s of the date the trial cour t sig ns its judg ment or order

. Tex. R. App. P. 26.1. I f a party timely files cer

tain post- j u d gm en t motions, such as a motion for new trial, the deadline is extended until ninety

day s after

the judg ment or orde r is signe d. Id. R. 26.1(a). The trial court signe d its judgme nt on April 12, 2010, and thus the time to appea l from the trial court’s judgme nt expired on May 12, 2010. Even if a post-judgme nt motion had been filed, the extended deadline to appea l w ould ha ve run on J uly 12. By

rd’s notice of appea l w as not filed until September 28 and there fore was untimely

. The only way we can exercise jurisdiction over this appeal is if we trea t By rd’s a ppeal a s a restricted appeal unde r rule 26.1( c). See id. R. 26.1(c) (dea dline to file restric ted appea l is six months from date judgme nt is signe d). Although By rd does
not cite to rule 26.1(c) or mention the standard of revie w employ ed in a restric ted appea l, he asser ts that he did not rec eive notice of the April 12 hear ing. We will thus proce ed as if this wa s intended to be broug ht as a re stricted appe al. 2

By rd’s primary arg uments rela te to the propriety of the 1970 deeds from which Nicolas & 2 Morris’s claim to title arise. There was no evidenc e prese nted b efor e the trial court attacking the validity of those d ee d s , h oweve r. The only arg ument By rd makes that might be sustainable on restric ted appe al re lates to whethe r he r ece ived notice of the April 12 hea

ring

. 3A party bring ing a restric ted appea l has the burden o f proving that there is err or

appar ent on the fac e of the rec ord. Brown v. Ogbolu , 331 S.W .3d 530, 533 (Tex. App.—Dallas 2011, no pet.). When a party to a restric ted appea l claims that he did not rec eive require d notice, the

err or must a

ppear on the fac e of the rec ord, and “the absenc e of proof in the rec ord that notice was provided does not establish err or on the fac e of the rec ord.” Gi n n v. F o r rester , 282 S.W .3d 430, 432-33 (T ex . 2009) (per curia m). I f a party needs extrinsi c evidenc e to challeng e a judgme nt, he
must raise the issue by motion for new trial or by bill of revie w filed in the trial court to g ive the trial
court a n opportunity

to consider the e vidence rela ted to the proprie ty

of notice. Id. at 432. Although By

rd asser ts in his briefs that he did not re ce i v e n o t i ce of the April 12 hear ing, the fac e of the rec ord does not speak to whether he rec eived notice, and he did not raise this
arg um en t b ef

o re t h e t ri al court by way of a bill of review or a mot ion for new t rial. See id. By rd attache d to his brief a

n “af fidavit” that states tha

t he did not rec eive written notice of the April 12 hear ing da te, but that evidenc e wa s not presente d to the trial court. 3

The judg ment signe d by

the trial court rec ites that By rd was g iven notice but fa iled
to appea r, and at the beg inning of the April 12 hear ing, the trial court noted that By rd, the only heir who had answe red, was “sitting over there in the Ba strop fede ral penitentiary .” Fur ther, By rd states in his brief that he “wa s not provided confirma tion of the April 12, 2010 hear ing date, althoug h such

By rd attache d a document entitl ed “af fidavit,” but which is more proper ly viewed as an 3 unsworn decla

ration. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (West Supp. 2012). I n his d ec l ar ation, he states, “I was advised by the Clerk of the Caldwell County District Cour t t h at n o hear ing date of any kind was established by the District Court in the subject case 08-O-0394. This information was provided prior to A pril 12, 2010. I was a lso not g iven written notice of a hear ing date be ing c onfirmed by

Caldwell County

District Court.” 4confirma tion was reque sted,” and that he “re quested rese t of the hear ing date.” By rd cites to his “Motion for Discover

y and Motion for Hea

ring Date,” filed in the trial court on Marc h 23, 2010, in which he states that he was attempting to contac t other heirs to deter mine i f they could attend a hear ing and provide evidenc e. I n that motion, B y rd does not ref

er to the April 12 hear ing but does
reque st a dditional time to f ind the other heirs, asking the trial cour t to se t a hear ing in mid-June or later. Ba sed on the documents befor e us, the rec ord does not show that By rd rec eived no notice of the hear ing and in fac t implies that he knew about the April 12 hear ing date an d wanted it to be delay ed. By

rd has not car

ried his burden of showing err or on the fac e of the rec ord. See id .; Brown , 331 S.W .3d at 533.

Conclusion

Be cause By

rd has not shown err or on the fac e of the re co rd , we af firm the trial court’s judg ment.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: January

9, 2013

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