law-restricted-appeal | default judgment | motion for new trial | sufficiency of service of citation in
civil suit |
bill of review cases |
A restricted appeal is a direct attack on the trial court's judgment. Gen. Elec. Co. v. Falcon Ridge
Apts., J.V., 811 S.W.2d 942, 943 (Tex. 1991). A restricted appeal must (1) be brought within six
months after the trial court signs the judgment, (2) by a party to the suit, (3) who did not
participate in the actual trial, and (4) the error complained of must be apparent on the face of the
record. Tex.R.App. P. 26.1(c), 30; Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex.1997).
RESTRICTED APPEAL
A party can prevail in a restricted appeal only if:
(1) it filed notice of the restricted appeal within six months after the judgment was signed;
(2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that
resulted in the judgment complained of and did not timely file any postjudgment 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)
(citing Tex. R. App. P. 26.1(c), 30, and Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.
2d 226, 227 (Tex. 1999)).
A restricted appeal (1) must be brought within six months of the date of judgment; (2) by a
party to the suit who did not participate in the trial; and (3) the error complained of must
be apparent from the face of the record. Tex. Rs. App. P. 26.1(c), 30; Norman Commc'ns
v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997); Westcliffe, Inc. v. Bear Creek
Const., Ltd., 105 S.W.3d 286, 289 (Tex. App.-Dallas 2003, no pet.).
Generally, a restricted appeal is available only to parties of record, so that non-parties who have
not properly intervened in the trial court lack standing to pursue an appeal of the trial court's
judgment. Naylor, 330 S.W.3d at 438; Johnson v. Johnson, 841 S.W.2d 114, 115 (Tex. App.-
Houston [14th Dist.] 1992, no writ); Mobil Exploration & Producing U.S., Inc. v. McDonald, 810 S.
W.2d 887, 889 (Tex. App.-Beaumont 1991, writ denied). However, an unnamed party may have
standing to pursue a restricted appeal if the party was "virtually represented" by a named party.
Naylor, 330 S.W.3d at 439; Johnson, 841 S.W.2d at 115; Mobil Exploration & Producing U.S.,
Inc., 810 S.W.2d at 889. In order to claim virtual representation, an appellant must show: (1) it is
bound by the judgment; (2) its privity of estate, title, or interest appears from the record; and (3)
there is an identity of interest between the appellant and a named party to the judgment. In re
Lumbermens Mut. Cas. Inc. Co., 184 S.W.3d at 722; Naylor, 330 S.W.3d at 439.
RESTRICTED APPEAL CASES FROM THE TEXAS SUPREME COURT
Insurance Company of the State of Pennsylvania v. Lejeune, No. 08-0829 (Tex. Oct. 30, 2009)
(per curiam) (restricted appeal of default judgment, error on the face of the record, time of
service not noted on return of citation)("Here, although Lejeune served Insurance Co. by certified
mail, the record shows that the return of citation lacks the required notation showing the hour of
receipt of citation. Lejeune’s default judgment, therefore, cannot stand.")
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. EDWARD LEJEUNE; from Red
River County; 6th district (06-07-00142-CV, 261 SW3d 852, 08-20-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court reverses the court of appeals' judgment and remands
the case to the trial court.
Per Curiam Opinion
Ginn v. Forrester, No. 08-0163 (Tex. Mar. 27, 2009)(per curiam)(absence of evidence of notice
insufficient to satisfy requirement of error on face of the record for purpose of restricted appeal)
EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, STEVE BRANTLEY v. JEFF
FORRESTER AND KIM FORRESTER; from Harris County; 14th district (14-06-00549-CV, ___
SW3d ___,
01-10-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without
hearing oral argument, the Court reverses the court of appeals’ judgment and renders judgment.
Per Curiam Opinion
Koa Holdings, LP v. Young, No. 07-0197 (Tex. June 13, 2008) (Hecht) (restricted appeal, default
judgment) (partnership law, defendant not sued and not properly served in individual capacity,
default judgment not proper) KAO HOLDINGS, L.P., D/B/A SEBRING APARTMENTS AND
WILLIAM KAO v. ANNIE LEE YOUNG; from Harris County; 14th district (14-05-00398-CV, 214
SW3d 504, 11-21-06)
motion to take judicial notice denied
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court modifies the court of appeals' judgment and affirms that
judgment as modified.
Justice Nathan Hecht delivered the opinion of the Court.
COURTS OF APPEALS DECISIONS IN RESTRICTED APPEALS
09-0498
BEDRIJE HAJDARI SEYMOUR v. FLOYD DAVID SEYMOUR; from Harris County; 14th district (14-
07-00280-CV, ___ SW3d ___, 02-24-09, pet. denied Sep. 2009) (restricted appeal requisites,
non-participation at trial, waiver of citation, appearance)