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Rainey v. Rainey

Court of Appeals of Texas, Fifth District, Dallas
Jan 6, 2006
No. 05-05-01384-CV (Tex. App. Jan. 6, 2006)

Summary

dismissing restricted appeal of final order on suit to modify parent-child relationship for want of jurisdiction because appellant's motion to set aside default judgment/motion for new trial was timely post-judgment motion

Summary of this case from Muirhead v. Muirhead

Opinion

No. 05-05-01384-CV

Opinion Filed January 6, 2006.

On Appeal from the 303rd Judicial District, Dallas County, Texas, Trial Court Cause No. 91-14238-V.

Dismiss.

Before Chief Justice THOMAS and Justices LANG-MIERS and MAZZANT.


MEMORANDUM OPINION


In this restricted appeal, appellant challenges the trial court's final order on a suit to modify parent-child relationship. Appellee filed a motion to dismiss asserting this is not an appropriate case for a restricted appeal because appellant filed a timely postjudgment motion. Because we agree with appellee, we dismiss this appeal.

A restricted appeal is allowed only if (1) the notice of appeal is filed within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Here, the trial court signed an order in a suit to modify parent-child relationship in favor of appellee on April 12, 2005. Twenty-nine days later, appellant timely filed a motion to set aside default judgment/motion for new trial which the trial court overruled. See Tex. R. Civ. P. 329b(a). Three months after appellant's deadline to file a notice of appeal expired, appellant filed a notice of restricted appeal.

Because appellant timely filed a post-judgment motion, we lack jurisdiction over this appeal. Lab. Corp. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528-29 (Tex.App.-Dallas 2000, no pet.) (holding that court lacked jurisdiction over restricted appeal when appellant was precluded from perfecting restricted appeal because it had filed a timely motion to set aside default judgment). Accordingly, we dismiss this appeal for want of jurisdiction.


Summaries of

Rainey v. Rainey

Court of Appeals of Texas, Fifth District, Dallas
Jan 6, 2006
No. 05-05-01384-CV (Tex. App. Jan. 6, 2006)

dismissing restricted appeal of final order on suit to modify parent-child relationship for want of jurisdiction because appellant's motion to set aside default judgment/motion for new trial was timely post-judgment motion

Summary of this case from Muirhead v. Muirhead
Case details for

Rainey v. Rainey

Case Details

Full title:JEFFERY MARIO RAINEY, Appellant, v. TINA SHERRA RAINEY, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 6, 2006

Citations

No. 05-05-01384-CV (Tex. App. Jan. 6, 2006)

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Muirhead v. Muirhead

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