Opinion
No. 14-08-00980-CV
Opinion filed January 8, 2009.
On Appeal from the Probate Court No. 1, Harris County, Texas, Trial Court Cause No. 379, 193.
Panel consists of Justices YATES, GUZMAN, and SULLIVAN.
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed April 18, 2008, and a July 10, 2008, order striking appellant's intervention. Appellant was not a party to the underlying case, but filed a post-judgment plea in intervention as well as a motion for new trial on May 19, 2008. On July 10, 2008, the trial court issued an order, granting appellee's motion to strike the intervention. Appellant's notice of restricted appeal was filed on October 17, 2008.
Appellees have filed a motion to dismiss, claiming that appellant is not entitled to a restricted appeal because appellant filed a timely motion for new trial. Appellant has responded to this motion. We agree with appellees that we have no jurisdiction in this appeal.
Appellant responds to this argument by pointing to statements appellees made to the trial judge that appellant's motion for new trial was untimely. Whether appellees incorrectly advised the trial judge that appellant's motion for new trial was untimely is irrelevant if the clerk's record shows the motion was timely. Indeed, appellees have filed a reply to appellant's response and contend that when they advised the trial judge the motion was untimely, they were referring to the amended motion, not the original motion for new trial. In any event, it does not matter whether one party made an argument about untimeliness in the trial court. We determine jurisdiction based on the record, not on what a party stated to the trial judge. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (holding that subject-matter jurisdiction cannot be waived by parties).
A restricted appeal is available to a party who did not participate, either in person or through counsel, in the hearing that resulted in the judgment being appealed, and who did not timely file a post-judgment motion or a request for findings and conclusions or a timely notice of appeal under Rule 26.1. See TEX. R. APP. P. 30. If an appellant meets the criteria in Rule 30, that party may file a notice of restricted appeal within six months after the judgment is signed. See id.; TEX. R. APP. P. 26.1(c). In this case, the clerk's record shows that appellant filed a timely, but unverified motion for new trial on May 19, 2008.
Appellant claims the motion for new trial was unverified and, because it was required to be verified, it is a nullity that does not prevent her from filing a restricted appeal. We need not determine whether verification of the motion for new trial was required because there is another basis for concluding that appellant is not entitled to bring a restricted appeal. A restricted appeal is available to "a party who did not participate — either in person or through counsel — in the hearing that resulted in the judgment. . . ." TEX. R. APP. P. 30. Because Rule 30 only applies to parties who did not participate in the hearing that resulted in the judgment and appellant was not a party to the underlying case or judgment, she is not entitled to bring a restricted appeal from the April 18th judgment.
Appellant's notice of appeal also states that appellant desires to challenge the July 18th order striking appellant's intervention. This post-judgment order is appealable; however, the notice of appeal was not timely filed. Appellant filed no motion for new trial after this order was July 18th order signed and thus, the deadline for perfecting appeal from this order was not extended. See TEX. R. APP. P. 26.1(a). The notice of appeal should have been filed within thirty days of the signing of the July 18th order. Appellant did not file her notice of appeal until October 17th, ninety-one days after the appealable order was signed.
Rather than filing a regular appeal, appellant filed a notice of restricted appeal. As previously discussed, a restricted appeal is available to a party who did not participate, either in person or through counsel, in the hearing that resulted in the judgment being appealed, and who did not timely file a post-judgment motion or a request for findings and conclusions or a timely notice of appeal under Rule 26.1. See TEX. R. APP. P. 30. If an appellant meets the criteria in Rule 30, that party may file a notice of restricted appeal within six months after the judgment is signed. See id.; TEX. R. APP. P. 26.1(c).
Appellant was a party to the intervention and she participated in the hearing that resulted in the order striking the intervention. The order signed July 18, 2008, states that all parties appeared through counsel at the hearing on the motion to strike the intervention. Because appellant participated in the hearing that resulted in the appealable order of July 18, 2008, appellant is not entitled to file a notice of restricted appeal from the order signed July 18th.
Accordingly, the appeal is ordered dismissed for lack of jurisdiction.