| Restricted Appeal Cases from the Houston Courts of Appeals Houston-Opinions |
| Texas Supreme Court Cases |
Default Judgment reversed in
restricted appeal. Defendant was
not properly named and served
with citation
Koa Holdings, LP v. Young, No.
07-0197 (Tex. 2008) (Hecht) (restricted
appeal, default judgment)
(partnership law, defendant not sued
and not properly served in individual
capacity, default judgment not proper)
Supreme Court Grants Mandamus
Relief to Stop Execution of
Judgment Voided for Defect of
Service
In Re Discount Rental, Inc., No.
05-0249 (Tex. Mar. 2, 2007)(per
curiam)(mandamus proceeding)
(default judgments, remedies, restricted
appeal)
While pursuing a restricted appeal from
a default judgment entered against it,
Discount Rental, Inc. did not supersede
the judgment. Plaintiffs obtained a writ
of execution. The court of appeals
reversed the default judgment before
the constable sale was to take place,
and Discount Rental moved for return
of its property. The Supreme Court
grants mandamus relief to set aside the
post-judgment orders and to direct the
trial court to return the seized property.
The Court holds that the trial court did
not have the power to order the sale of
the property because the underlying
default judgment was void for lack of
proper service of citation, and the
debtor did not waive its rights under
that statute that allows a judgment
debtor to recover property seized, but
not yet sold, when the judgment is set
aside. The Court rejects that argument
that the parties' agreement on the
terms of the sale is binding because
the agreement was based on the
incorrect premise that the trial court
had the authority to order the sale.
Opinion below: Discount Rental, Inc. v. Carter,
No. 10-03-00276-CV (Tex.App.- Waco May 5,
2004, pet. denied)(mem. op.)(judgment void,
defect of service)
Key case: Smith v. Commercial Equip.
Leasing Co., 678 S.W.2d 917 (Tex.
1984)(default judgment void for want of proper
service)
Terms: Restricted appeal, default judgment,
insufficient defective service of process,
execution of judgment, waiver of statutory
rights, contractual waiver
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.). To attack a judgment by a restricted appeal, the appeal must be filed (1) within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who, either in person or through counsel, did not participate at trial; and (4) the error must be 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); Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The face of the record consists of all the papers on file in the appeal, including any reporter’s record. Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.). A review of a restricted appeal includes review of the legal and factual sufficiency of the evidence, including the evidence of damages. Norman Commc’ns, 955 S.W.2d at 270; Regions Bank v. Centerpoint Apartments, 290 S.W.3d 510, 512 (Tex. App.—Amarillo 2009, no pet.). Also see ---> Houston Texas Bill of Review cases WHAT IS THE DIFFERENCE BETWEEN A Restricted Appeal AND A Bill of Review IN TEXAS? A bill-of-review proceedings is a law suit filed to challenge a final judgment in a prior suit that can no longer be appealed directly. RESTRICTED APPEAL DEFINED: A restricted appeal is a procedural device available to a party who did not participate, either in person or through counsel, in a proceeding that resulted in a judgment against the party. Tex. R. App. P. 30. It constitutes a direct attack on a default judgment. Id.; Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991). REQUISITES OF RESTRICTED APPEAL. A party filing a restricted appeal must demonstrate that (1) he appealed within six months after the judgment was rendered, (2) he was a party to the suit, (3) he did not participate in the actual trial of the case, and (4) error appears on the face of the record. See Tex. R. App. P. 30; Quaestor Inv., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999). The face of the record includes all papers on file in the appeal, including the clerk’s record and any reporter’s record. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991); Davenport v. Scheble, 201 S.W.3d 188, 193 (Tex. App.—Dallas 2006, pet. filed). Because a restricted appeal affords an appellant the same scope of review as an ordinary appeal, he may challenge the legal and factual sufficiency of the evidence. See Norman Commc’ ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Whitaker v. Rose, No. 14-04-01178-CV, 2007 WL 324595, at *1 (Tex. App.—Houston [14th Dist.] Feb. 6, 2007, no pet.). LINKS TO OPINIONS IN RESTRICTED APPEALS FROM HOUSTON COURSE OF APPEALS Tx DPS v. Dahlquist (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Keyes) (expunction reversed in restricted appeal) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Evelyn Keyes Before Justices Keyes, Sharp and Massengale 01-08-00559-CV Texas Department of Public Safety v. Sharon R. Dahlquist Appeal from 1st District Court of Jasper County Trial Court Judge: Judge Joe Bob Golden 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 World Environmental,LLC v. Wolfpack Environmental, LLC (Tex.App.- Houston [1st Dist.] Mar. 12, 2009) (Jennings)(default judgment, restricted appeal, suit on account, quantum meruit) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Jennings Before Justices Jennings, Keyes and Higley 01-08-00561-CV World Environmental, LLC v. Wolfpack Environmental, LLC Appeal from County Court at Law No 2 of Montgomery County Trial Court Judge: Judge Jerry Winfree Lushann International Energy Corp. v. Harris County (Tex.App.- Houston [1st Dist.] Sep. 11, 2008)(per curiam) (no jurisdiction over restricted appeal; motion for new trial in court below precludes restricted appeal) DISMISS APPEAL: Per Curiam Before Justices Nuchia, Alcala and Hanks 01-07-00119-CV Lushann International Energy Corp. v. Harris County Appeal from 61st District Court of Harris County Trial Court Judge: Hon. John Donovan 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) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Jennings and Bland 01-07-00659-CV Chike Rapulueke Mbonu v. Office of the Attorney General Appeal from 328th District Court of Fort Bend County Trial Court Judge: Hon. Ronald R. Pope Forrester v. Ginn (Tex.App.- Houston [14th Dist.] Jan. 10, 2008)(majority op. on rehearing by Hedges)(DWOP dismissal reversed in restricted appeal) REVERSED AND REMANDED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Guzman 14-06-00549-CV Jeff Forrester and Kim Forrester v. Emmanuel Ginn, A&R Transport, Inc., Keith Jackson, and Steve Brantley Appeal from 333rd District Court of Harris County (Hon. Joseph J. Halbach) Justice Guzman issued a dissenting opinion on rehearing in Forrester v. Ginn Bank Repossessed Car Co. v. Who's Calling, Inc. (Tex.App.- Houston [14th Dist.] Sep. 4, 2007)(Anderson)(restricted appeal, default judgment, service of process on Secretary of State) AFFIRMED: Opinion by Justice Anderson Before Justices Anderson, Fowler and Seymore 14-05-01251-CV Bank Repossessed Car Co. d/b/a Thirty Car Sales v. Who's Calling, Inc. Appeal from Co Civil Ct at Law No 2 of Harris County (Judge Gary Michael Block) Forrester v. Emmanuel Ginn, A&R Transport, Inc., (Tex.App.- Houston [14th Dist.] Jul. 26, 2007)(Hedges)(DWOJ, restricted appeal) AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Guzman 14-06-00549-CV Jeff Forrester and Kim Forrester v. Emmanuel Ginn, A&R Transport, Inc., Keith Jackson, and Steve Brantley Appeal from 333rd District Court of Harris County (Judge Joseph J. Halbach) Berger v. Howard R. King & Hill, Angel & King, L.L.P (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Bland)(restricted appeal, malpractice, sanctions) AFFIRM TC JUDGMENT: Opinion by Justice Bland Before Justices Nuchia, Hanks and Bland 01-06-00871-CV Larry Berger v. Howard R. King & Hill, Angel & King, L.L.P., and Sam Lee, II, et al--Appeal from 23rd District Court of Brazoria County (Hon. Ben Hardin) Parent's signature on final decree constituted participation. Restricted Appeal limited to those who did not participate at trial. Chakey v. Chakey (Tex.App.- Houston [1st Dist.] May 17, 2007)(Nuchia)(appeal dismissed) 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 A restricted appeal is only available to a party who did not participate at trial. Here, the Court holds the mother's signature on the final decree in a suit affecting the parent-child relationship constituted participation, and that the restricted appeal was barred. The mother had approved the decree both as to form and substance, but she had not appeared at the final hearing. Key words: family law, SAPCR, restricted appeal, final order, appellate procedure Default Judgment in Parentage Action Reversed in Part in Restricted Appeal Miles v. Peacock and OAG (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Bland) [family law, restricted, paternity, limitations] AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland (Before Chief Justice Radack, Justices Jennings and Bland) 01-06-00313-CV In The Matter of the Marriage of Bridget Peacock and Carnell Peacock Appeal from 247th District Court of Harris County (Judge Bonnie Hellums) We conclude that Miles has waived any statute of limitations defense and therefore affirm that portion of the trial court’s judgment adjudicating his paternity of N.S.P. With respect to the portions of the judgment awarding child support and denying possession, we conclude that insufficient evidence supports the trial court’s findings and therefore reverse and remand for further proceedings. Approx. $13,0022.99 v. State of Texas (Tex.App.- Houston [14th Dist.] Feb. 1, 2007)(per curiam dismissal)(restricted appeal, untimely restricted appeal, DWOJ) DISMISSED: Per Curiam Before Justices Frost, Seymore and Guzman 14-06-01050-CV Approximately $13,022.99 v. The State of Texas Appeal from 165th District Court of Harris County (Judge Elizabeth Ray) Whitaker v. Rose (Tex.App.- Houston [14th Dist.] Feb. 6, 2007)(Anderson) (PI-auto, restricted appeal, no answer default judgment) AFFIRMED AS MODIFIED IN PART AND REVERSED AND RENDERED IN PART: Opinion by Justice Anderson (Before Justices Anderson, Edelman and Frost) 14-04-01178-CV Marcus Dunte Whitaker v. Lois Rose, John Rose Jr., and John Rose III Appeal from County Civil Court at Law No 1 of Harris County (Judge R. Jack Cagle) Harveston Securities Inc. v. Narnia Investments Ltd. (Tex.App.- Houston [14th Dist.] Jan. 11, 2007)(Frost) (restricted appeal, default judgment, sufficiency of service) REVERSED AND REMANDED: Opinion by Justice Frost (Before Justices Anderson, Edelman and Frost) 14-05-00206-CV Harveston Securities Inc. v. Narnia Investments L.T.D. Appeal from 270th District Court of Harris County Dissenting Opinion by Justice Edelman In Harveston Securities Inc. v. Narnia |