law-restricted-appeal | postjudgment motions | challenges to default judgments | motion for new trial | bill of
review | Restricted Appeals in Houston Courts of Appeals
RESTRICTED APPEAL =/= ORDINARY APPEAL
To prevail on a restricted appeal, an appellant must establish that (1) it filed a 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 postjudgment
motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the
record. TEX. R. APP. P. 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
A restricted appeal is available when (1) it is filed within six months after the trial court signed the judgment; (2)
by a party to the suit; (3) who, either in person or through counsel, did not participate at trial and did not timely
file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is
apparent from the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d
845, 848 (Tex. 2004). The face of the record consists of all papers on file in the appeal. Osteen v. Osteen,
38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
A restricted appeal is a direct attack on the trial court's judgment. Gen. Elec. Co. v. Falcon Ridge Apartments
Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991); Sutton v. Hisaw & Assoc. Gen. Contractors, Inc., 65 S.W.3d
281, 284 (Tex. App.-Dallas 2001, pet. denied). A restricted appeal must (1) be brought within six months after
the trial court signs the judgment, (2) by a party to the suit, (3) who did not participate in the actual trial, and
(4) the error complained of must be apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Norman
Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)
CASE LAW SNIPPETS ON REQUISITES OF RESTRICTED APPEAL
ELEMENTS THAT MUST BE MET FOR SUCCESSFUL RESTRICTED APPEAL: To prevail on a restricted
appeal, an appellant must demonstrate the following: (1) the notice of restricted appeal was filed within six
months of the date of the judgment or order; (2) she was a party to the suit; (3) she did not participate in the
hearing that resulted in the judgment complained of and did not file a timely post-judgment motion or request
for findings of facts and conclusions of law; and (4) error is apparent from the face of the record. See Tex. R.
App. P. 30; Alexander v. Lyndas Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
These requirements are jurisdictional and cut off a party's right to seek relief by way of a restricted appeal if
not met. See Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.- Fort Worth 2001, pet. denied). The parties
concede Bedrije meets the first two elements; thus we focus our analysis on whether Bedrije has established
that (a) she did not participate in the hearing resulting in the judgment and (b) error is apparent on the face of
the record. Seymore v. Seymore, No. 14-07-00280-CV (Tex.App.- Houston [14th Dist.] Feb. 24, 2009)
(Guzman)(restricted appeal requisites, divorce decree, non-participation, appearance, waiver of citation)
NONPARTICIPATION REQUIREMENT / ELEMENT | HOW MUCH PARTICIPATION IS TOO MUCH?
“The nature and extent of participation precluding a restricted appeal in any particular case is a matter of
degree because trial courts decide cases in a myriad of procedural settings." McKnight v. Trogdon-McKnight,
132 S.W.3d 126, 129 (Tex. App.- Houston [14th Dist.] 2004, no pet.) (citing Texaco, Inc. v. Cent. Power &
Light Co., 925 S.W.2d 586, 589 (Tex. 1996)). For example, a party's statement in a waiver of service that she
entered her appearance for all purposes does not rise to the level of participation at trial. Campsey v.
Campsey, 111 S.W.3d 767, 771 (Tex. App.- Fort Worth 2003, no pet.) (citing Texaco, Inc., 925 S.W.2d at
590). Further, a party who waives citation and the making of a statement of facts and signed the judgment
prior to entry has participated sufficiently to preclude her right to a restricted appeal, although a party who has
signed a waiver of citation and a preliminary divorce agreement has not. Compare Blakinship v. Blakinship,
572 S.W.2d 807, 808- 09 (Tex. Civ. App.- Houston [14th Dist.] 1978, no writ) (waiver of citation and making of
record and signing judgment precludes review by writ of error) with Stubbs v. Stubbs, 685 S.W.2d 643, 645
(Tex. 1985) (signing waiver of citation and agreement incident to divorce not sufficient participation to
preclude review via writ of error). The facts of this case fall on the spectrum between those present in
Blankinship, in which this court concluded that the appellant had participated in the proceedings below and
was thus precluded from seeking relief through a restricted appeal, and the facts present in Stubbs, in which
the Texas Supreme Court concluded that the appellant had not participated sufficiently to preclude review by
restricted appeal. Seymore v. Seymore, No. 14-07-00280-CV (Tex.App.- Houston [14th Dist.] Feb. 24, 2009)
(Guzman)(restricted appeal requisites, divorce decree, non-participation, appearance, waiver of citation)
Here, Bedrije signed a waiver of citation, in which she explicitly waived the making of a record and entered her
appearance for all purposes. This waiver alone, however, is not sufficient participation to preclude her from
entitlement to a restricted appeal. See Campsey, 111 S.W.3d at 771; see also Stubbs, 685 S.W.2d at 645.
Mother cannot bring restricted appeal; her signature on the final decree constituted participation
Chakey v. Chakey (Tex.App.- Houston [1st Dist.] May 17, 2007)(Nuchia) [family law, SAPCR, waiver of citation,
agreed decree]
DISMISS APPEAL: Opinion by Justice Nuchia
Before Justices Nuchia, Hanks and Bland
01-06-00848-CV Elizabeth Marie Chakey v. Zachary R. Chakey, Jr. and Dawn A. Chakey
Appeal from 312th District Court of Harris County (Hon. James D. "Jim" Squier)
FILING OF POST-JUDGMENT MOTION PRECLUDES RESTRICTED APPEAL.
We conclude that, based on the facts of this case, by signing the motion to reinstate and requesting that the
trial court enter the decree, Bedrije signaled her acquiescence to the divorce decree itself. Finally, because
Bedrije filed the motion to reinstate after the hearing resulting in the judgment was held, she has essentially
filed a postjudgment motion. Filing a postjudgment motion vitiates a party's right to a restricted
appeal. See Tex. R. Civ. P. 30 (“A party who did not participate . . . in the hearing that resulted in the
judgment complained of and who did not timely file a postjudgment motion . . . may file a notice of appeal
within the time permitted by Rule 26.1(c)." (emphasis added)); see also Reyna v. Elizondo, No. 14-05-00622-
CV, 2006 WL 1675380 (Tex. App.- Houston [14th Dist.] June 20, 2006, no pet.) (mem. op.). Seymore v.
Seymore, No. 14-07-00280-CV (Tex.App.- Houston [14th Dist.] Feb. 24, 2009)(Guzman)(restricted appeal
requisites, divorce decree, non-participation, appearance, waiver of citation)
NATURE OF RESTRICTED APPEAL AND ELEMENTS: A restricted appeal is a direct attack on a judgment,
Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 721 (Tex. App.--Houston [1st Dist.] 2003, no pet.). To
prevail by this restricted appeal, Mbonu must satisfy the following elements: (1) his notice of restricted appeal
must have been filed within six months after the trial court signs the judgment; (2) by him, a party to the
lawsuit; (3) who neither participated in the hearing that resulted in the judgment nor timely filed a postjudgment
motion or a request for findings of fact and conclusions of law; and (4) the face of the record must disclose the
claimed error. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.
2004); Roventini, 111 S.W.3d at 721. This appeal concerns only the fourth element.
* * *
WHAT APPEARS ON THE FACE OF THE RECORD, WHAT DOCUMENTS DOES THE RECORD CONTAIN IN
A RESTRICTED APPEAL? The face of the record consists of all the papers on file in the appeal, including any
reporter’s record. Binder v. Joe, 193 S.W.3d 29, 32 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
The face of the record in a restricted appeal consists of the papers on file with the trial court when it
rendered judgment, including the clerk's record and any reporter's record. Miles v. Peacock, 229 S.W.3d 384,
387 (Tex. App.--Houston [1st Dist.] 2007, no pet.); Roventini, 111 S.W.3d at 721-22 (citing Gen. Elec. Co. v.
Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (decided under former writ-of-
error practice, which restricted appeal replaced)). Because a restricted appeal affords the same scope of
review as an ordinary appeal, the appealing party may challenge the legal and factual sufficiency of the
evidence to support the order rendered. See Miles, 229 S.W.3d at 387 (citing Norman Commc'ns v. Tex.
Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)). Mbonu v. Office of the Attorney General (Tex.App.- Houston
[1st Dist.] May 22, 2008)(Radack)
(family law, paternity, retroactive child and medical support, restricted appeal of UIFSA default judgment fails)
RESTRICTED APPEAL REQUIREMENTS. In her first issue, D’Juana contends that she is entitled to review by
restricted appeal.
To prevail on restricted appeal, an appellant must establish the following: (1) she filed the notice of the
restricted appeal within six months after the judgment or order appealed from was signed; (2) she was a party
to the underlying suit; (3) she did not timely file a post-judgment motion or request for findings of fact and
conclusions of law, or notice of appeal; (4) she did not participate, either in person or through counsel, in the
actual trial of the case; (5) the trial court erred; and (6) the error is apparent from the face of the record. Tex.
R. App. P. 30, 26.1(c); Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex. App.—Houston [1st
Dist.] 2001, no pet.).
The face of the record consists of all the papers on file in the appeal, including any reporter’s record. Binder
v. Joe, 193 S.W.3d 29, 32 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
The record reflects that D’Juana satisfied the first four requirements. We now determine whether the trial court
erred and whether that error is apparent from the face of the record. Parr v. Parr (Tex.App,- Houston [1st
Dist.] May 21, 2009)(Hanks) (attorneys fees award vacated in family law case, no evidence presented on fees)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks
01-07-00750-CV D'Juana Parr v. Brian Parr
Appeal from 247th District Court of Harris County
Trial Court Judge: Hon. Bonnie Hellums
Challenging Award of Attorney’s Fees in Restricted Appeal. In her fourth issue, D’Juana contends that
the trial court erred by awarding attorney’s fees because Brian did not present any evidence to substantiate
such an award. Because a restricted appeal affords an appellant the same scope of review as an ordinary
appeal, the appellant may challenge the legal and factual sufficiency of the evidence. Miles v. Peacock, 229 S.
W.3d 384, 387 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Norman Commc’ns v. Tex. Eastman Co.,
955 S.W.2d 269, 270 (Tex. 1997)).
MORE CASE LAW SNIPPETS ON RESTRICTED APPEAL AND LINKS TO APPELLATE DECISIONS IN
RESTRICTED APPEALS
To prevail on a restricted appeal, an appellant must establish that (1) she filed a notice of the restricted
appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she
did not participate in the hearing that resulted in the judgment complained of and did not timely file any
postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the
face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Here, some of the
errors alleged are jurisdictional; thus, we consider these issues first. Church v. Quick (Tex.App.- Houston [14th
Dist.] Jul. 14, 2009)(Guzman)(restricted appeal, a nonresident spouse)(Because the trial court lacked
personal jurisdiction over the nonresident spouse, the court of appeals modifies the judgment to eliminate all
relief other than the divorce and affirms the judgment as modified.)
AFFIRMED AS MODIFIED: Opinion by Justice Guzman
Before Justices Anderson, Guzman and Boyce
14-08-00131-CV Joyce Gail Church v. Kenneth Richard Quick
Appeal from 246th District Court of Harris County
Trial Court Judge: Jim York
TransAmerica Occidental Life Insurance Company v. Rapid Settlements (Tex.App.- Houston [1st Dist.] July 3,
2008)(Bland) (restricted appeal, order confirming arbitration award) (structured settlements)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00195-CV Transamerica Occidental Life Insurance Company and Transamerica Annuity Service
Corporation v. Rapid Settlements, Ltd.
Appeal from County Civil Court at Law No 2 [?] of Harris County
Trial Court Judge: Hon. Jack Cagle
Vazquez v. Maria Vazquez (Tex.App.- Houston [14th Dist.] May 19, 2007)(Seymore)
(default divorce decree, restricted appeal)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore
Before Justices Frost, Seymore and Guzman
14-05-01257-CV Amadeo Vazquez v. Maria Vazquez
Appeal from 300th District Court of Brazoria County (Judge K. Randall Hufstetler)
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