Court of Appeals of Texas, Fourth District, San Antonio
the 285th Judicial District Court, Bexar County, Texas Trial
Court No. 2015-CI-10888 Honorable Larry Noll, Judge Presiding
Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard,
Justice Luz Elena D. Chapa, Justice
Marialyn Barnard, Justice
an attempted restricted appeal from a default judgment
against appellants, Miguel Guerra and Ana Anita Guerra, and
in favor of appellees, Copernicus Guerra, Eric Stubbs, and
Monica Trish Guerra. On appeal, appellants contend there is
error apparent on the face of the record because the record
does not establish they were properly served with notice of
the trial setting. While the appeal was pending, appellees
filed a motion to dismiss, arguing this appeal should be
dismissed for want of jurisdiction because appellants timely
filed a post judgment motion, precluding them from seeking a
restrictive appeal. Appellees also filed a motion to award
damages, requesting that we award them damages as a sanction
against appellants' counsel because the appeal is
frivolous. Because appellants timely filed a motion for new
trial and such a motion precludes them from seeking a
restricted appeal, we grant appellees' motion to dismiss
and dismiss this appeal for want of jurisdiction. We further
deny appellees' request for damages as a sanction against
appellants' counsel for pursing a frivolous appeal.
underlying dispute concerns the ownership of real property
and partnership interests. On July 2, 2015, appellees filed
suit seeking declaratory relief, requesting the trial court
to declare the parties' rights and liabilities with
respect to the disputed real property and partnership
interests. In their petition, appellees also sought a
temporary injunction and restraining order to prevent
appellants from using any funds related to the partnership,
accessing the business, communicating with the business's
employees, and destroying any business property in their
possession. Appellants filed an answer and counterclaim
alleging conversion, breach of fiduciary duty, and quantum
meruit. On July 10, 2015, the trial court signed an order
granting both a restraining order and temporary injunction in
favor of appellees. The record reflects the restraining order
and temporary injunction were extended to September 10, 2015.
the case proceeded to a bench trial at which appellants
failed to appear. The trial court subsequently rendered a
default judgment in favor of appellees on May 24, 2016. The
record reflects that on June 21, 2016, appellants timely
filed a motion for new trial, seeking to vacate the default
judgment. In their motion, appellants argued they did not
receive notice of the trial setting. A hearing on the motion
for new trial was held on July 22, 2016, and all parties
appeared in person represented by counsel. During the
hearing, appellants requested a continuance, and the hearing
was reset for September 1, 2016. After the September hearing,
the trial court denied appellants' motion for new trial.
Six months later - after the signing of the trial court's
default judgment - appellants filed a notice of restricted
appeal, appellants contend there is error apparent on the
face of the record because the record does not establish they
were properly served with notice of the trial setting.
Specifically, appellants assert the record does not
demonstrate they were served with actual or constructive
notice of the trial setting. For support, appellants point to
an affidavit by Ana Anita Guerra, who states she was out of
the country when appellees' counsel left notice of the
trial setting at her doorstep.
Law - Restricted Appeal
restricted appeal is a direct attack on a default judgment.
Paez v. Trent Smith Custom Homes, No.
04-13-00394-CV, 2014 WL 1089751, at *2 (Tex. App.-San Antonio
March 19, 2014, no pet.) (mem. op.) (citing Eguia v.
Eguia, 367 S.W.3d 455, 458 (Tex. App.-Corpus Christi
2012, no pet.); Whitaker v. Rose, 218 S.W.3d 216,
219 (Tex. App.-Houston [14th Dist.] 2007, no pet.)). To
prevail on a restricted appeal, an appealing party must show
that: (1) he brought the appeal within six months after the
trial court signed the judgment; (2) he was a party to the
suit; (3)he did not "participate" in the hearing
that resulted in the complained-of judgment, nor did he
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."
See Tex. R. App. P. 30; Alexander v. Lynda's
Boutique, 134 S.W.3d 845, 848 (Tex. 2004);
Paez, 2014 WL 1089751, at *2. "These
requirements are jurisdictional and will preclude a
party's right to seek relief by way of a restricted
appeal if they are not met." Aero at Sp. Z.O.O. v.
Gartman, 469 S.W.3d 314, 317 (Tex. App.-Fort Worth 2015,
no pet.); see Paez, 2014 WL 1089751, at *2.
Motion to Dismiss
addressing appellants' contention regarding improper
service, we must first address appellees' motion to
dismiss because it raises jurisdiction concerns. See
Minton v. Gunn, 355 S.W.3d 634, 639 (Tex. 2011),
rev'd on other grounds, 568 U.S. 251 (2013)
(holding appellate court must determine its jurisdiction to
consider appeal before reaching merits). In their motion,
appellees assert this court lacks jurisdiction over this
restricted appeal because appellants timely filed a post
judgment motion when they filed their motion for new trial on
June 21, 2016. In their brief, appellants acknowledge a
motion for new trial was timely filed on June 21, 2016.
Appellants, however, contend the motion was "conclusory
and had a number of failings[, ]" and therefore did not
constitute a proper motion for new trial for purposes of
pursing a restricted appeal. We disagree.
indicated above, the requirements of a restricted appeal are
jurisdictional. Gartman, 469 S.W.3d at 317;
Paez, 2014 WL 1089751; Rodarte v. Bexar
County, No. 04-12-00211-CV, 2013 WL 1908381, at *3 (Tex.
App.-San Antonio May 8, 2013, pet. denied) (mem. op.).
"Because the requirements are jurisdictional, if a party
timely files a post judgment motion, a restricted appeal is
not available." Gartman, 469 S.W.3d at 317;
see Rodarte, 2013 WL 1908381, at *3 ("When a
party files a timely post-judgment motion, we lack
jurisdiction over a restricted appeal."). A motion for
new trial is a type of post judgment motion that extends the
appellate deadlines. See Gartman, 469 S.W.3d at 316.
Contrary to appellants' assertion that their
"conclusory" motion did not constitute a proper
motion for new trial, "any timely-filed motion seeking
to vacate the trial court's judgment, even a motion
asserting meritless grounds for vacating the judgment,
constitutes a motion for new trial that will extend the
appellate timetable." Id. (emphasis added);
see, e.g., PopCap Games, Inc. v. MumboJumbo, 350
S.W.3d 699, 717 (Tex. App.-Dallas 2011, pet. denied) (holding
motion for new trial on damages, which did not request trial
court to vacate judgment but ...