COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00330-CV
AERO AT SP. Z.O.O. APPELLANT
V.
DENNIS GARTMAN AND JERRY K. APPELLEES
BAKER
----------
FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CV13-01-081
----------
OPINION
----------
I. INTRODUCTION
This is an attempted restricted appeal. The sole issue we address is
whether the special appearance filed by Appellant Aero at Sp. z.o.o. within thirty
days after the trial court signed a default judgment against Appellant and in favor
of Appellees Dennis Gartman and Jerry K. Baker constitutes a timely-filed
postjudgment motion that precludes Appellant’s pursuit of a restricted appeal
under Texas Rule of Appellate Procedure 30. See Tex. R. App. P. 30. Because
we hold that the special appearance filed here is such a postjudgment motion,
we will dismiss this restricted appeal for want of jurisdiction.
II. THE LAW
A. Concerning Restricted Appeals
A restricted appeal is a direct attack on the trial court’s judgment. See,
e.g., Gen. Elec. Co. v. Falcon Ridge Apts., J.V., 811 S.W.2d 942, 943 (Tex.
1991); Rone Eng’g Serv., Ltd. v. Culberson, 317 S.W.3d 506, 508 (Tex. App.––
Dallas 2010, no pet.). Rule 30 of the Texas Rules of Appellate Procedure
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. Thus, to directly attack a judgment by restricted appeal, (1)
the appeal must be brought within six months after the trial court signed the
judgment; (2) by a party to the suit; (3) who did not participate in the hearing that
resulted in the judgment complained of; (4) who did not timely file a postjudgment
motion, a request for findings of fact and conclusions of law, or a notice of
appeal; and (5) the complained-of error that shows the invalidity of the judgment
is apparent on the face of the record. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.013 (West 2015); Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s
2
Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Norman Commc’s v. Tex. Eastman
Co., 955 S.W.2d 269, 270 (Tex. 1997). These requirements are jurisdictional
and will preclude a party’s right to seek relief by way of a restricted appeal if they
are not met. Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001,
pet. denied). Because the requirements are jurisdictional, if a party timely files a
postjudgment motion, a restricted appeal is not available. See Tex. R. App. P.
30; Wolf v. Andreas, 276 S.W.3d 23, 25 (Tex. App.––El Paso 2008, pet.
withdrawn); see also In re Estate of Head, 165 S.W.3d 897, 902–03 (Tex. App.––
Texarkana 2005, no pet.) (timely filing postjudgment motion to reconsider
summary judgment precluded restricted appeal); S.P. Dorman Exploration Co. v.
Mitchell Energy Co., 71 S.W.3d 469, 470 (Tex. App.—Waco 2002, no pet.)
(timely filing motion for new trial precluded restricted appeal); Lab. Corp. of Am.
v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.––Dallas 2000, no
pet.) (timely filing motion to set aside default judgment precluded restricted
appeal); Thomas v. Tex. Dep’t of Criminal Justice, 3 S.W.3d 665, 666–67 (Tex.
App.––Fort Worth 1999, no pet.) (timely filing motion to reinstate precluded
restricted appeal); Moncrief v. Harvey, 805 S.W.2d 20, 23–24 (Tex. App.––Dallas
1991, no writ) (timely filing motion to contest recognition of foreign judgment
under Uniform Enforcement of Foreign Judgments Act precluded restricted
appeal).
3
B. Concerning Postjudgment Motions
A trial court retains jurisdiction over a case for a minimum of thirty days
after signing a final judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v.
Smith S. Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000). The period of plenary
power may be extended, however, by timely filing an appropriate postjudgment
motion. Lane Bank, 10 S.W.3d at 310. Thus, the filing of a motion for new trial;
a motion to modify, correct, or reform the judgment; or a request for findings of
fact and conclusions of law within the initial thirty-day period extends the trial
court’s jurisdiction over its judgment up to an additional seventy-five days and
extends the time period for filing a notice of appeal of a regular, i.e.,
nonaccelerated, appeal until ninety days after the judgment was signed. Id.; see
also Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1(a). Any motion filed within
thirty days of the trial court’s judgment that assails the judgment extends the
appellate timetable for a regular appeal. See, e.g., Gomez v. Tex. Dep’t of
Criminal Justice, Institutional Div., 896 S.W.2d 176, 176–77 (Tex. 1995). Thus,
any timely-filed motion seeking to vacate the trial court’s judgment, even a
motion asserting meritless grounds for vacating the judgment, constitutes a
motion for new trial that will extend the appellate timetable. See, e.g., PopCap
Games, Inc. v. MumboJumbo, 350 S.W.3d 699, 717 (Tex. App.––Dallas 2011,
pet. denied); see also Taylor v. Trans-Cont’l Props., Ltd., 739 S.W.2d 873, 876
(Tex. App.—Tyler 1987, no writ) (construing “Demand for Removal” as
postjudgment motion that extended the appellate timetable). And any timely-filed
4
postjudgment motion that seeks a substantive change in an existing judgment
qualifies as a motion to modify under rule 329b(g) and will also extend the
appellate timetable. Lane Bank, 10 S.W.3d at 313.
III. PROCEDURAL FACTS
Appellant, a company located in Poland, was served pursuant to the
Hague Convention; there are no allegations of improper service. A final default
judgment was signed against Appellant and in favor of Appellees on July 1, 2014.
On July 30, 2014 Appellant, represented by counsel, filed a special appearance
in the trial court. The special appearance prayed that “this Court sustain its
special appearance, that this entire proceeding be dismissed for want of
jurisdiction over [Appellant,] and that [Appellant] recovers its costs.” No hearing
was set on Appellant’s special appearance.
Appellant mailed its notice of appeal to the Wise County district clerk on
October 13, 2014, and mailed a motion to extend the time to file its notice of
appeal to this court on October 13, 2014. Thus, Appellant did not file its notice of
appeal by July 31, 2014 (which would be thirty days from July 1, 2014) or by
September 29, 2014 (which would be ninety days from July 1, 2014). Although
Appellant filed its notice of appeal via the mailbox rule within fifteen days of the
ninety-day deadline (which would be October 14, 2014), and mailed a motion to
5
extend the time to file the notice of appeal to this court,1 the motion for extension
of time did not state reasonable grounds supporting the need for an extension of
time so—prior to the assignment of this case to the undersigned panel—it was
denied, and the appeal was ordered to proceed as a restricted appeal.2
1
We note that the motion was not e-filed as required by rule 9.2(c)(1) of the
rules of appellate procedure. See Tex. R. App. P. 9.2(c)(1) (providing that
“[a]ttorneys in civil cases must electronically file documents”).
2
Appellant’s motion to extend the time to file its notice of appeal alleged
only that Appellant’s U.S. representative, Wladyslaw Jankowski, was busy
traveling worldwide to perform the duties of his job; that Appellant’s principal to
whom Jankowski reported, Steven Zhang, was also busy traveling worldwide
doing his job so that the two had difficulty communicating; and that this travel, as
well as the sale of Appellant in May 2013––over one year prior to entry of the
default judgment––prevented Jankowski from impressing on Appellant’s new
owners the need to appeal and from “obtaining timely authorization” to file the
appeal. The law is well-settled that the explanations provided in this case—the
need for additional time to communicate about the appeal, to assess the need for
an appeal, and to decide whether to appeal—do not constitute a reasonable
explanation that will support the granting of an extension of time to file a notice of
appeal. See, e.g., Amegy Bank of Tex., N.A. v. Titan Servs., LLC, No. 02-09-
00420-CV, 2010 WL 87095, at *1–2 (Tex. App.––Fort Worth 2010, no pet.)
(mem. op.) (holding an appellant’s assertion that he needed additional time to
evaluate the merits of the appeal and the likelihood of success did not constitute
a reasonable explanation); Zhao v. Lone Star Engine Installation Ctr., Inc., No.
05-09-01055-CV, 2009 WL 3177578, at *1–2 (Tex. App.––Dallas 2009, pet.
denied) (mem. op.) (holding that postponing decision on whether to appeal until
after motion for new trial hearing did not constitute reasonable explanation), cert.
denied, 562 U.S. 1004 (2010); Treimee Corp. v. Jimenez, No. 01-99-00814-CV,
2002 WL 123579, at *2 (Tex. App.––Houston [1st Dist.] 2002, pet. denied) (not
designated for publication) (holding that busyness and travel schedule of sole
shareholder of appellant did not provide reasonable explanation for untimely
notice of appeal).
6
IV. ANALYSIS
The fourth restricted-appeal element is at issue here.3 Appellees assert
that we lack jurisdiction over this restricted appeal because Appellant timely filed
a postjudgment motion––its special appearance.
Appellant’s special appearance is, literally, a postjudgment motion in that it
was filed after the default judgment. Appellant’s special appearance asserts that
the trial court lacks personal jurisdiction over Appellant and requests the trial
court to enter an order dismissing Appellees’ lawsuit and awarding costs to
Appellant. Thus, Appellant’s special appearance implicitly requests that the trial
court vacate the default judgment. Compare In re Brookshire Groc. Co., 250
S.W.3d 66, 73 (Tex. 2008) (orig. proceeding) (recognizing “fundamental nature of
a new trial motion” is to seek “not to reform, but to vacate the court’s judgment”),
and Gomez, 896 S.W.2d at 176–77 (holding that document filed by pro se litigant
titled “bill of review” assailed the trial court’s judgment and extended the
appellate timetable), with Aviation Composite Techs., Inc. v. CLB Corp., 131
S.W.3d 181, 185–86 (Tex. App.––Fort Worth 2004, no pet.) (holding that rule
306a motion did not seek to vacate trial court judgment, was not a postjudgment
3
The fifth element––error on the face of the record––is addressed by
Appellant in its brief, but because we hold that Appellant’s timely filing of a
postjudgment special appearance precludes its restricted appeal and that we
lack jurisdiction over this appeal, we need not address whether error is apparent
on the face of the record. See Tex. R. App. P. 47.1 (requiring appellate court to
address only issues necessary to disposition of an appeal).
7
motion that would extend the appellate timetable, and did not preclude restricted
appeal).
Under rule of civil procedure 329(e), as well as established case law,
Appellant’s special appearance, which was filed within thirty days of the default
judgment, constituted a postjudgment motion that extended the appellate
timetable.4 See Tex. R. Civ. P. 329b(e); Lane Bank, 10 S.W.3d at 310; Gomez,
896 S.W.2d at 176–77. Because Appellant timely filed a postjudgment motion
that extended the appellate timetable, it is not entitled to pursue a restricted
appeal. See, e.g., Wolf, 276 S.W.3d at 25; Estate of Head, 165 S.W.3d at 902–
03; S.P. Dorman Exploration Co., 71 S.W.3d at 470; Lab. Corp. of Am., 16
S.W.3d at 528; Thomas, 3 S.W.3d at 666–67; Moncrief, 805 S.W.2d at 23–24.
Accordingly, we lack jurisdiction over this attempted restricted appeal. See Tex.
R. App. P. 30; Clopton, 66 S.W.3d at 517; Franklin v. Wilcox, 53 S.W.3d 739,
741 (Tex. App.––Fort Worth 2001, no pet.).
4
Appellant’s motion to extend the time to file its notice of appeal likewise
treats the special appearance as a postjudgment motion extending the appellate
timetable.
8
V. CONCLUSION
Having determined that we lack jurisdiction over this appeal, we dismiss it.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DELIVERED: July 9, 2015
9