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. MuirheadOpinion
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.