Summary
declining to address argument on appeal that plaintiff lacked standing to bring suit for partition of property because appeal was untimely
Summary of this case from Fry Sons Ranch, Inc. v. FryOpinion
No. 14-08-00800-CV
Memorandum Opinion filed June 25, 2009.
On Appeal from the 164th District Court Harris County, Texas, Trial Court Cause No. 2007-24506.
Panel consists of Justices ANDERSON, BOYCE, and GUZMAN.
MEMORANDUM OPINION
This appeal arises from a suit for partition of real property jointly owned by John Freeman and Patrick Freeman. Patrick sought partition of the property so that he could have it sold and the proceeds divided. A final default judgment was signed in Patrick's favor on October 29, 2007. On May 8, 2008, the trial court signed an order appointing a receiver to sell the property at issue. On June 3, 2008, John attempted to file a notice of appeal by handwriting "I will appeal" on a copy of a form entitled "State Commission on Judicial Conduct," which he apparently filed regarding complaints about the trial judge in this case. He attached a copy of the May 8th order appointing a receiver, with several handwritten notes mentioning an "appeal," to this form.
The basis of John's appeal is unclear from the documents he filed regarding his desire to appeal. An appeal from the final default judgment was untimely at the time John filed this notice. See TEX. R. APP. P. 26.1. An appeal from the order appointing a receiver, however, was timely. TEX. R. APP. P. 26.1 see Moyer v. Moyer, 183 S.W.3d 48, 51 (Tex.App. 2005, no pet.) (considering appeal of post-judgment order appointing a receiver). Under these circumstances, we conclude that John has invoked this court's appellate jurisdiction with respect to the May 8th order appointing a receiver. See TEX. R. APP. P. 25.1(b).
This notice of appeal is also untimely under the rules governing restricted appeals. See TEX. R. APP. P. 26.1(c) (notice of restricted appeal must be filed within six months after judgment or order is signed); TEX. R. APP. P. 30 (party may file restricted appeal if he did not participate in hearing resulting in judgment or timely file post-judgment motion).
On appeal, however, John presents the following issues:
(1) The trial court should not have rendered a default judgment against defendant.
(2) The [p]laintiff lacked standing and capacity to bring suit for partition of the property.
(3) The [d]efendant's Answer was sufficient to give notice of his defenses.
These issues all squarely relate to the default judgment; as such, they represent an improper collateral attack on a final judgment. See Browning v. Prostok, 165 S.W.3d 336, 345-46 (Tex. 2005) ("Collateral attacks on final judgments are generally disallowed because it is the policy of the law to give finality to the judgments of the courts."); see also Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 764-66 (Tex.App. 2008, no pet.). John has not alleged any error concerning the appointment of the receiver. We therefore overrule his three issues and affirm the trial court's judgment.