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Botello v. Davila

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 13, 2017

LUIS ANGEL BOTELLO, Appellant
v.
MARIA DAVILA, INDIVIDUALLY AND FOR XIMENA DAVILA, Appellees.

         On appeal from the County Court at Law No. 1 of Hidalgo County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice

         Appellant Luis Angel Botello attempted to perfect an appeal from a judgment entered by the County Court at Law No. One of Hidalgo County, Texas, in cause number CI-14-2101-A. We dismiss the appeal for want of jurisdiction.

         Appellant filed a notice of restricted appeal on June 1, 2017, seeking to appeal a final default judgment rendered on January 11, 2017. The notice of appeal stated that appellant "is a party affected by the judgment, but did not participate, either in person or by counsel, in the hearing that resulted in the judgment complained of." The notice further stated that appellant "timely filed [a] Motion for New Trial, which was overruled by operation of law on May 4, 2017."

         On June 5, 2017, the Clerk of this Court notified appellant that it appeared that the restricted notice of appeal was defective because it did not comply with Texas Rule of Appellate Procedure 25.1(d)(7), which requires a notice of restricted appeal to "state that the appellant did not timely file either a postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal." See Tex. R. App. P. 25.1(d)(7)(B). The Clerk requested correction of this defect, and notified appellant that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court's directive. In response, appellant filed an amended notice of appeal which states: appellant "is a party affected by the judgment, but did not participate, either in person or by counsel, in the hearing that resulted in the judgment complained of"; on February 16, 2017, the appellant "timely filed [a] Motion for New Trial, which was overruled by operation of law on May 4, 2017"; the appellant "did not file any other post judgment motions other than his Notice of Appeal"; and on June 1, 2017, appellant "filed his Notice of Appeal." Our review of the clerk's record in this case shows that appellant timely filed a motion for new trial on February 10, 2017.

         Generally, a notice of appeal is due within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. The deadline to file a notice of appeal is extended to ninety days after the date the judgment is signed if, within thirty days after the judgment is signed, any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. See id. R. 26.1(a); Tex.R.Civ.P. 329b(a), (g). The time to file a notice of appeal may also be extended if, within fifteen days after the deadline to file the notice of appeal, a party properly files a motion for extension. See Tex. R. App. P. 10.5(b), 26.3.

         In order to succeed on a restricted appeal, an 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 either in person or through counsel 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 Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re R.S.T., 502 S.W.3d 880, 882 (Tex. App.-Houston [14th Dist.] 2016, no pet.); In re Baby Girl S., 353 S.W.3d 589, 591 (Tex. App.-Dallas 2011, no pet.). Each element of a restricted appeal is mandatory and jurisdictional. Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 315 (Tex. App.-Fort Worth 2015, no pet.). Therefore, if a party timely files a postjudgment motion, a restricted appeal is not available. See id.; In re Estate of Head, 165 S.W.3d 897, 902-03 (Tex. App.-Texarkana 2005, no pet.) (stating that timely filing a postjudgment motion to reconsider summary judgment precluded a restricted appeal); S.P. Dorman Exploration Co. v. Mitchell Energy Co., 71 S.W.3d 469, 470 (Tex. App.-Waco 2002, no pet.) (holding that the timely filing of a motion for new trial precluded a restricted appeal); Lab. Corp. of Am. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.-Dallas 2000, no pet.) (concluding that a timely filed motion to set aside a default judgment precluded a restricted appeal); Thomas v. Tex. Dep't of Crim. Justice, 3 S.W.3d 665, 666-67 (Tex. App.-Fort Worth 1999, no pet.) (stating that timely filing motion to reinstate precluded a restricted appeal); Moncrief v. Harvey, 805 S.W.2d 20, 23-24 (Tex. App.-Dallas 1991, no writ) (holding that timely filing a motion to contest the recognition of a foreign judgment under the Uniform Enforcement of Foreign Judgments Act precluded a restricted appeal).

         Because appellant timely filed a motion for new trial in this case, we lack jurisdiction to consider this as a restricted appeal. See Aero at Sp. Z.O.O., 469 S.W.3d at 315-16; In re Estate of Head, 165 S.W.3d at 902-03; S.P. Dorman Exploration Co., 71 S.W.3d at 470. Further, because appellant timely filed a motion for new trial, he was required to file his notice of appeal within ninety days after the judgment was signed. Tex.R.App.P. 26.1(a). Because Valles filed his notice of appeal long after the deadline, this Court lacks jurisdiction over the appeal.

         The Court, having examined and fully considered the documents on file and appellant's failure to timely perfect his appeal, is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the appeal is ...


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