Opinion
01-21-00485-CV
07-28-2022
KETZERY MILITZY RUIZ, Appellant v. JOSEPH MICHAEL CISNEROS, Appellee
On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2016-27608
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
MEMORANDUM OPINION
PER CURIAM
Appellant Ketzery Militzy Ruiz ("Appellant") filed a Notice of Appeal seeking to appeal a judgment rendered on May 25, 2021 by the 309th Judicial District Court. Because Appellant's Notice of Appeal was not filed timely and we lack jurisdiction over a restricted appeal, we dismiss the appeal for lack of jurisdiction.
Discussion
Texas Rule of Appellate Procedure 26.1 states that a "notice of appeal must be filed within 30 days after the judgment is signed" or "within 90 days after the judgment is signed if any party timely files: (1) a motion for new trial; (2) a motion to modify the judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court." Tex.R.App.P. 26.1. Absent any timely filed notice of appeal, this Court lacks jurisdiction over the appeal and, "[i]n such a circumstance, we must dismiss the appeal for want of jurisdiction." In the Matter of J.J.R., 599 S.W.3d 605, 610 (Tex. App.-El Paso 2020, no pet.) (citing Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003)); see also Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005) ("Because [appellant's] notice of appeal was untimely, the court of appeals lacked jurisdiction over the appeal[.]"); Milewski v. Singing Props., No. 10-20-00151-CV, 2020 WL 4047977, at *1 (Tex. App.-Waco July 10, 2020, no pet.) (mem. op.) (noting that appellate court's jurisdiction "depends on a timely notice of appeal").
Appellant filed a Notice of Appeal on September 3, 2021, stating she "desires to appeal and seeks to alter the judgment or other appealable order rendered on June 25, 2021 by the 309th Judicial District Court in the suit between Joseph Michael Cisneros, Petitioner, and Ketzery Militzy Ruiz, Respondent." The style in the Notice of Appeal bears Cause No. 2016-27608, In the Interest of A.L.C., a Child, in the 309th District Court of Harris County, Texas-a Suit to Modify the Parent Child Relationship ("SAPCR Case"). There is no June 25, 2021 order in the clerk's record. Instead, a May 25, 2021 order in the SAPCR Case is attached to Appellant's brief and identified as the "final order in this matter."Appellant did not file her Notice of Appeal until 101 days after entry of the May 25, 2021 judgment in the SAPCR Case.
On June 23, 2021, Appellant filed a motion for new trial in Cause No. 2016-27608 (the SAPCR Case). In her motion, she states that judgment was entered against Appellant on May 25, 2021. In addition, Appellant's amended request for findings of fact and conclusions of law, also filed in Cause No. 2016-27608, states the judgment was signed on May 25, 2021.
Appellant states in her Notice of Appeal that the case is a "parental termination" case, that the appeal is accelerated, and that the appeal is a restricted appeal. But Cause No. 2016-27608, the SAPCR Case, is a modification case. The parental termination case is a separate matter filed under Cause No. 2020-58320, In the Interest of A.L.C, a Child, also in the 309th District Court of Harris County, Texas ("Termination Case"). The 309th Judicial District Court heard the SAPCR and Termination Cases together on May 6, 2021. The trial court denied the request for termination on the record during the May 6, 2021 hearing.
An August 31, 2021 order denying Appellant's motion for new trial in the SAPCR Case is attached to the Notice of Appeal. The order is not referenced in Appellant's appellate brief.
To the extent Appellant contends she filed a restricted appeal, this Court lacks jurisdiction. Rule 30 of the Texas Rules of Appellate Procedure, dealing with restrictive appeals, provides:
A party who did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).Tex. R. App. P. 30. A restricted appeal is available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.-Fort Worth 2000, no pet.) (citing Tex.R.App.P. 30). To prevail on a restricted appeal, an appellant must demonstrate that (1) she filed the notice of restricted appeal within six months of the date of the judgment or order; (2) she was a party to the suit; (3) she did not participate in the hearing that resulted in the judgment complained of and did not timely file (i) a post-judgment motion, (ii) a request for findings of facts and conclusions of law, or (iii) a notice of appeal; and (4) error is apparent on the face of the record. See Tex. R App. P. 30; Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020); Vazquez v. Vazquez, 292 S.W.3d 80, 83 (Tex. App.-Houston [14th Dist.] 2007, no pet.). The first three requirements for a restricted appeal are jurisdictional in nature. Ex parte E.H., 602 S.W.3d at 497.
Appellant participated in the SAPCR and Termination hearing on May 6, 2021 that resulted in the challenged May 25, 2021 judgment. And she filed a timely motion for new trial and a timely request for findings of fact and conclusions of law in the SAPCR Case. Consequently, she does not satisfy the jurisdictional requirements for a restricted appeal. See Tex. R. App. P. 30; In re B.H.B., 336 S.W.3d 303, 306 (Tex. App.-San Antonio 2010, pet. denied) (holding court lacked jurisdiction over restricted appeal because mother participated in "decision-making event" that resulted in termination decree); In re E.U.S., No. 05-02-01691-CV, 2003 WL 1251488, at *1 (Tex. App.-Dallas Mar. 19, 2003, no pet.) (mem. op.) (holding court lacked jurisdiction over restricted appeal because appellant filed timely motion for new trial).
A motion for new trial must be filed within thirty days after the judgment complained of is signed. Tex.R.Civ.P. 329b(a). Appellant filed her motion for new trial twenty-nine days after the May 25, 2021 judgment was signed. Requests for Findings of Facts and Conclusions of Law must be filed within twenty days after judgment is signed. Tex.R.Civ.P. 296. The clerk's record indicates Appellant filed an amended request for findings of fact and conclusions of law on June 14, 2021, twenty days after the May 25, 2021 judgment was signed.
To the extent Appellant seeks to appeal the May 25, 2021 final judgment in the Termination Case, her Notice of Appeal was untimely. Appeals from parental termination cases are accelerated and must be filed within 20 days after the challenged judgment is signed. See Tex. R. App. P. 28.4 (noting that appeals in parental termination cases are accelerated appeals); Tex.R.App.P. 26.1(b) (requiring notice of accelerated appeal to be filed within twenty days after judgment is signed); In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (holding deadline for filing notice of accelerated appeal is twenty days after judgment or order is signed and post-judgment motions do not extend deadline). The trial court signed the final judgment in the Termination Case on May 25, 2021. Appellant's Notice of Appeal was thus due by May 26, 2021. Appellant did not file her Notice of Appeal until September 3, 2021.
The same is true with respect to any appeal from the SAPCR Case. Although appeals from SAPCR matters are not accelerated, Appellant did not file her Notice of Appeal on time. See Tex. R. App. P. 26.1(a) (requiring notice of appeal generally to be filed within thirty days after judgment is signed or within ninety days after judgment is signed if certain post-judgment motions are filed). Because Appellant filed a timely motion for new trial in the SAPCR Case, her Notice of Appeal was due 90 days from the date of judgment, or on August 23, 2021. Appellant filed her Notice of Appeal eleven days later, on September 3, 2021.
On June 23, 2022, the Court issued a Notice of Intent to Dismiss for Lack of Jurisdiction, indicating the appeal would be dismissed for lack of jurisdiction unless Appellant filed a written response "demonstrating, with citation to the record, statutes, rules, and case law, why this Court has jurisdiction over her appeal." Appellant did not respond to the notice.
Because Appellant did not file a timely notice of appeal and this Court lacks jurisdiction over a restricted appeal, we dismiss the appeal for lack of jurisdiction.