NO. 12-17-00225-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 369TH
IN THE INTEREST OF J.D.L.,
§ JUDICIAL DISTRICT COURT
A CHILD
§ ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Jeremy Dean Laymance, pro se, appeals the trial court’s order in a suit affecting the
parent-child relationship. On appeal, he presents seven issues. We affirm.
BACKGROUND
Jeremy Laymance and Morgan Mosley are the parents of J.D.L. On February 14, 2017,
John Van Compernolle and Sharon Van Compernolle, maternal great-grandparents of J.D.L.,
filed a first amended original petition in suit affecting the parent-child relationship, alleging that
the parents have engaged in a history or pattern of child neglect and drug abuse. John and
Sharon requested that they be appointed sole managing conservators of the child and requested
that the trial court issue a temporary restraining order against the parents. On February 15, 2017,
the trial court issued a temporary restraining order, and an order setting a hearing on the
temporary orders. Twelve days later, the trial court ordered that the temporary restraining order
be extended, and extended the date of the hearing on the temporary orders. On March 3, 2017,
the trial court held a hearing on John and Sharon’s application for temporary orders. The trial
court found that Jeremy “although duly and properly notified, did not appear and wholly made
default.” The trial court ordered that John and Sharon be appointed temporary sole managing
conservators, and that Jeremy be appointed temporary possessory conservator of the child.
However, the trial court found that credible evidence was presented that Jeremy and Morgan had
a history or pattern of family violence, abuse, and/or neglect. The trial court ordered that Jeremy
and Morgan have no possession of, or contact with, the child until further order of the court. The
trial court also issued a temporary injunction against Jeremy and Morgan.
According to Jeremy’s brief, he and Morgan were served a copy of John and Sharon’s
petition on March 15, 2017 while in the White County Detention Center in the State of Arkansas.
The record shows that Jeremy and Morgan were arrested and charged with interference with
child custody on March 3, 2017. Jeremy and Morgan filed an answer to John and Sharon’s
petition on March 21, 2017, requesting that they be appointed sole managing conservators of the
child.
Jeremy filed several pleadings in June 2017, including a motion to set the petition for
hearing, a motion to amend pleadings, interrogatories, a request for production, and a motion for
joinder of parties. On June 29, 2017, the trial court entered the final order in suit affecting the
parent-child relationship. The trial court found that Jeremy and Morgan made a general
appearance and were duly notified of trial, but failed to appear and defaulted. The trial court
appointed John and Sharon as sole managing conservators, and Jeremy and Morgan as
possessory conservators of the child. The trial court also granted Jeremy and Morgan visitation
under John and Sharon’s supervision on the days and times prescribed by them, and ordered
Jeremy and Morgan to pay child support.
After the final order was signed, Jeremy filed several motions including two motions to
compel discovery and a motion for summary judgment. Jeremy filed a timely notice of appeal.
TEMPORARY ORDERS
In his third and fourth issues, Jeremy argues the trial court erred by issuing a temporary
restraining order without notice, extending the temporary restraining order without notice, and
issuing temporary orders, including a temporary injunction, without notice or personal service. It
is well-settled that a temporary order is superseded by entry of a final order, rendering moot any
complaint about the temporary order. See In re A.K., 487 S.W.3d 679, 683 (Tex. App.–San
Antonio 2016, no pet.); Erlewine v. Erlewine, No. 03-06-00308-CV, 2007 WL 2462042, at *2
(Tex. App.–Austin Aug. 29, 2007, no pet.) (mem. op.) (concluding temporary order modifying
child support was no longer in effect when superseded by final judgment and complaint about
modification was moot); see also Wright v. Wentzel, 749 S.W.2d 228, 234 (Tex. App.–Houston
[1st Dist.] 1988, no writ). In other words, after the trial court enters its final order, any
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complaints about temporary orders become moot. Mauldin v. Clements, 428 S.W.3d 247, 262
(Tex. App.–Houston [1st Dist.] 2014, no pet.).
Here, the record shows that the trial court issued a temporary restraining order on
February 15, 2017, extended the temporary restraining order, and issued temporary orders,
including a temporary injunction, on March 3, 2017. However, the trial court entered the final
order in suit affecting the parent-child relationship on June 29, 2017. That order appointed John
and Sharon as sole managing conservators, and Jeremy and Morgan as possessory conservators
of the child. Because the trial court rendered a final order in the suit affecting the parent-child
relationship, Jeremy’s complaints about the temporary orders are moot and not subject to review
on appeal. See In re A.K., 487 S.W.3d at 683; see also Wright, 749 S.W.2d at 234; L.F. v. Dep’t
of Family & Protective Servs., Nos. 01-10-01148-CV, 01-10-01149-CV, 2012 WL 1564547, at
*14 (Tex. App.—Houston [1st Dist.] May 3, 2012, pet. denied) (mem. op.) (declining to consider
temporary orders authorizing emergency removal after final order of termination entered). We
overrule Jeremy’s third and fourth issues.
SERVICE
In his sixth issue, Jeremy contends that the final order affecting the parent-child
relationship was null and void because he did not receive proper service of citation and the
officer’s return was not filed with the clerk. However, Jeremy admitted in his brief that he was
served with citation on March 15, 2017 while in the White County Detention Center in the State
of Arkansas. He also stated that he received a copy of John and Sharon’s petition. Moreover, he
filed an answer to John and Sharon’s petition on March 21, 2017. Jeremy’s answer constituted a
general appearance in the underlying suit which renders his argument of defective service of
process moot. See TEX. R. CIV. P. 121 (“[a]n answer shall constitute an appearance of the
defendant so as to dispense with the necessity for the issuance or service of citation upon him”);
Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 589 (Tex. App.—Corpus Christi
1994, no pet.). We overrule Jeremy’s sixth issue.
INADEQUATELY BRIEFED ISSUES
In his first and second issues, Jeremy questions the “legality” of removing and retaining
J.D.L. from his parents without a court order or warrant, and releasing J.D.L. to a non-parent
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without a court order granting or terminating conservatorship from parent to non-parent. In his
fifth issue, Jeremy questions issuing a criminal warrant for interference with child custody for
violating the terms of a court order because he was not given actual notice or personal service of
those orders.
Applicable Law
Rule 38.1 of the Texas Rules of Appellate Procedure sets forth what must be included in
an appellant’s brief. See TEX. R. APP. P. 38.1. Rule 38.1(i) requires that an appellant’s brief
“contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” TEX. R. APP. P. 38.1(i). The appellate court has no duty to brief
issues for an appellant. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.–Dallas 2006, no pet.).
The failure to provide appropriate record citations or a substantive analysis waives an appellate
issue. WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.–Houston
[14th Dist.] 2005, pet. denied) (holding that failure to offer argument, citations to record, or
citations to authority waives issue on appeal); Med. Specialist Grp., P.A. v. Radiology Assocs.,
L.L.P., 171 S.W.3d 727, 732 (Tex. App.–Corpus Christi 2005, pet. denied) (same); see also
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (holding
appellate court has discretion to deem issues waived due to inadequate briefing). References to
sweeping statements of general law are rarely appropriate. Bolling v. Farmers Branch Ind. Sch.
Dist., 315 S.W.3d 893, 896 (Tex. App.–Dallas 2010, no pet.). Appellate courts must construe
briefing requirements reasonably and liberally, but a party asserting error on appeal still must put
forth some specific argument and analysis showing that the record and the law support its
contentions. San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.–Houston
[14th Dist.] 2005, no pet.).
An appellate court has no duty—or even right—to perform an independent review of the
record and applicable law to determine whether there was error. Valadez v. Avitia, 238 S.W.3d
843, 845 (Tex. App.–El Paso 2007, no pet.). Were we to do so, we would be abandoning our
role as neutral adjudicators and become an advocate for that party. Id.
Analysis
Here, Jeremy presents a brief conclusory argument for his first, second, and fifth issues in
his brief. His entire argument for all of his issues consists of one paragraph and does not
specifically allude to, or mention, these three issues. He does not provide any citations to the
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record, any substantive legal analysis, or any citations to authority in support of these
complaints. Jeremy does not refer to, or provide any, legal authority or analysis to support these
claims, specifically regarding the legality of the removal or retention of J.D.L., releasing J.D.L.
to a non-parent, or issuing a criminal warrant without notice of court orders. See Sweed v. City
of El Paso, 195 S.W.3d 784, 786 (Tex. App.–El Paso 2006, no pet.) (stating that “merely
uttering brief conclusory statements” is not a discussion of the facts and authorities relied upon
contemplated by Rule 38). In the absence of any legal analysis, citations to the record, and
citations to appropriate authorities, Jeremy presents nothing for our review regarding his first,
second, and fifth issues. See WorldPeace, 183 S.W.3d at 460; Med. Specialist Grp., 171 S.W.3d
at 732.
Moreover, documents attached to a brief as an exhibit or appendix, but not appearing in
the record, cannot be considered by the appellate court for any purpose other than determining its
own jurisdiction. Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.
1979) (orig. proceeding) (per curiam); Warriner v. Warriner, 394 S.W.3d 240, 254 (Tex. App.–
El Paso 2012, no pet.). Therefore, we cannot consider the exhibits attached to Jeremy’s brief that
do not appear in the record and which he refers to regarding these issues. Accordingly, we
overrule Jeremy’s first, second, and fifth issues.
RESTRICTED APPEAL
In his seventh issue, Jeremy appears to contend that he is entitled to a restricted appeal
regarding the order in suit affecting the parent-child relationship because it was a default order
and he was not properly served. We must determine if Jeremy is entitled to a restricted appeal.
Applicable Law
To prevail on his restricted appeal, Jeremy must establish that (1) he filed notice of the
restricted appeal within six months after the judgment was signed, (2) he was a party to the
underlying lawsuit, (3) he did not participate either in person or through counsel 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. See TEX. R. APP. P. 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.
2004); In re Baby Girl S., 353 S.W.3d 589, 591 (Tex. App.—Dallas 2011, no pet.). Each
element of a restricted appeal is mandatory and jurisdictional. Ibarra v. City of Laredo, Nos. 04-
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11-00035-CV, 04-11-00037-CV, 2012 WL 3025709, *4 (Tex. App.—San Antonio July 25,
2012, pet. denied) (mem. op.) (citing Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.—San
Antonio 1995, no writ)).
The face of the record for purposes of a restricted appeal consists of all the papers on file
before the judgment as well as the reporter’s record. Conseco Fin. Servicing Corp. v. Klein
Indep. Sch. Dist., 78 S.W.3d 666, 670 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Lewis v.
Ramirez, 49 S.W.3d 561, 564 (Tex. App.—Corpus Christi 2001, no pet.). Further, evidence not
before the trial court prior to final judgment is beyond the scope of review in a restricted appeal
and may not be considered. Diaz v. Multi Serv. Tech. Sols. Corp., No. 05-14-00032-CV, 2014
WL 5768714, at *2 (Tex. App.—Dallas Nov. 6, 2014, no pet.) (mem. op.) (citing Alexander,
134 S.W.3d at 848–49).
Analysis
To be entitled to pursue a restricted appeal, Jeremy must first establish that he filed a
notice of the restricted appeal within six months after the judgment was signed. See TEX. R. APP.
P. 26.1(c). The judgment at issue is the order in suit affecting the parent-child relationship
signed on June 29, 2017. Jeremy filed his notice of appeal on July 18, 2016, within the six
month time limit. See id. Next, Jeremy must show that he was a party to the underlying lawsuit.
The record shows that he was named as the father and respondent in the suit affecting the parent-
child relationship. Thus, he has also established the second prong of a restricted appeal. See
Alexander, 134 S.W.3d at 848.
In the third prong of a restricted appeal, Jeremy must establish that he did not participate
either in person or through counsel 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. See id. In the final order, the trial court found that Jeremy “made a general appearance
and was duly notified of trial but failed to appear and defaulted.” Thus, it appears from the face
of the record that Jeremy did not participate in person or through counsel in the hearing that
resulted in the final order.
Jeremy did not address in his brief whether he timely filed any postjudgment motions or
requests for findings of fact and conclusions of law. The record shows that he filed several
motions after the final hearing, including two motions to compel discovery and a motion for
summary judgment. His motion for summary judgment alleges that (1) another “petition” was
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filed before the petition in this suit, (2) Sharon claimed in the affidavit to the petition that a
district court ordered the legal guardian of J.D.L. to remove him from his parents, (3) the March
3, 2017 temporary order contradicted Sharon’s affidavit, (4) the petition was served on Jeremy
after he had been arrested and detained, (5) John and Sharon failed to answer or object to
discovery and produce evidence supporting their claims, (6) he and Morgan were entitled to
judgment because John and Sharon did not have sufficient standing to bring the petition, and (7)
there was no genuine dispute to support the petition. Jeremy also requested the trial court to
dismiss the petition for failing to state a claim. Because we construe this filing as a motion for
new trial, we conclude that Jeremy timely filed a postjudgment motion. See In re Piatt Servs.
Int’l, Inc., 493 S.W.3d 276, 282 (Tex. App.—Austin 2016, orig. proceeding) (stating that motion
for new trial seeks relief from judgment already formed). Thus, we find that Jeremy did not
establish the third prong of a restricted appeal. See Alexander, 134 S.W.3d at 848.
In the final prong of a restricted appeal, Jeremy must establish that error is apparent on
the face of the record. See id. The issues presented in his brief concern temporary orders,
ordering the removal and retention of a minor child, releasing a minor child to a non-parent
without a court order granting conservatorship to the non-parent, issuance of a criminal warrant
for violating court orders without notice or service of those orders, and entering a judgment
without proper service. None of these arguments establish error on the face of the record. See
id.; see also Diaz, 2014 WL 5768714, at *2. Because Jeremy did not satisfy all four of the
requirements necessary to obtain relief through a restricted appeal of the final order, we overrule
Jeremy’s seventh issue.
DISPOSITION
Having overruled all of Jeremy’s issues, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered December 21, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 21, 2017
NO. 12-17-00225-CV
IN THE INTEREST OF J. D. L., A CHILD
Appeal from the 369th District Court
of Anderson County, Texas (Tr.Ct.No. DCCV17-070-369)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, JEREMY DEAN LAYMANCE, for which execution may issue, and that
this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.