Karagounis, Vasilios A., M.D., Ph.D. v. David T. Lopez & Associates, David T Lopez, Darah S. Headley

In The Court of Appeals For The First District of Texas ____________ NO. 01-01-00884-CV ____________ VASILIOS A. KARAGOUNIS, Appellant V. DAVID T. LOPEZ & ASSOC. AND DAVID T. LOPEZ, Appellees On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 1998-53087 MEMORANDUM OPINION This is a restricted appeal from a default judgment in favor of David T. Lopez & Associates and David T. Lopez (collectively, Lopez), appellees. In a single point of error, appellant, Vasilios A. Karagounis, contends that he was not given proper notice of the trial setting and that, therefore, the trial court erred in entering a default judgment against him. In a single cross-point, Lopez contends that Karagounis’s appeal is frivolous and asks us to award sanctions. We affirm the judgment of the trial court and deny Lopez’s cross-point for sanctions. Background In November 1998, Karagounis filed a legal malpractice suit against Lopez, and Lopez counterclaimed against Karagounis for legal fees owed and attorney’s fees incurred while defending against the legal malpractice suit. Although Karagounis subsequently nonsuited Lopez, Lopez proceeded with his counterclaim. Trial was conducted on Lopez’s counterclaim in March 2001, at which Karagounis did not appear. The trial court entered a default judgment against Karagounis after finding his suit to be groundless and brought in bad faith. Restricted Appeal To bring a direct attack on a judgment by restricted appeal, (1) a petition must be brought within six months after the judgment was signed, (2) by a party to the suit, (3) who did not participate at trial, and (4) the error complained of must be “apparent from the face of the record.” General Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 943 (Tex. 1991); Tex. R. App. P. 30. Because the record in this case shows that the first three elements have been met, only the last element is in issue. Review by restricted appeal affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). The only restriction on the scope of review of a restricted appeal is that the error must appear on the face of the record. Id. An appellant who alleges error apparent on the face of the record due to the absence of notice carries a heavy burden because the record will not usually show affirmative proof of the error claimed. Falcon Ridge Apts., 811 S.W.2d at 943-44; Robert S. Wilson Inv. No. 16 Ltd. v. Blumer, 837 S.W.2d 860, 861 (Tex. App.—Houston [1st Dist.] 1992, no writ). The rules do not impose a duty on the trial court, or its personnel, to provide documentary evidence that notice of a trial setting was given. See Tex. R. Civ. P. 245; Blumer, 837 S.W.2d at 861. When the rules do not impose a duty on either the parties or the court clerk to ensure that notice is affirmatively shown in the record, lack of affirmative proof of notice does not establish error. Falcon Ridge Apts., 811 S.W.2d at 943-44; Blumer, 837 S.W.2d at 861-62. Karagounis argues that it is a violation of his right to due process for a default judgment to be rendered against him when he received no notice of the trial setting. But nothing in the record before us establishes that he did not receive notice of the trial. Karagounis asserts that “procedural rules impose a duty either on the parties or the district clerk to ensure that notice was affirmatively shown in the record,” but cites case law that either does not involve restricted appeals or involves trial records that affirmatively demonstrate lack of notice. Because the face of the record does not show that Karagounis did not receive notice of the trial setting, we hold that the trial court did not err in granting a default judgment against him. We overrule Karagounis’s point of error. Rule 45 Sanctions In a single cross-point, Lopez asks us to award sanctions under Rule 45 of the Rules of Appellate Procedure on the grounds that Karagounis’s appeal is frivolous. Tex. R. App. P. 45. Under Rule 45, we may award just damages if we objectively determine, after considering the record, briefs, or other papers filed with the court, that an appeal is frivolous. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). To determine whether an appeal is frivolous, we look at the record from the viewpoint of the advocate and decide whether he had reasonable grounds to believe the case could be reversed. Smith, 51 S.W.3d at 381. As addressed above, Karagounis argues that he was denied his right to due process because he did not receive notice of the trial setting. We cannot conclude from the record before us that Karagounis had no reasonable ground to believe that the trial court’s judgment could be reversed. We overrule Lopez’s cross-point for sanctions. Conclusion We affirm the judgment of the trial court and deny Lopez’s cross-point for sanctions. Elsa Alcala Justice Panel consists of Justices Hedges, Jennings, and Alcala.