Summary
dismissing restricted appeal for want of jurisdiction after appellant timely filed motion for new trial
Summary of this case from Barton v. Office of Attorney Gen.Opinion
No. 01-03-00286-CV.
Opinion issued June 5, 2003.
Appeal from the 312th District Court, Harris County, Texas, Trial Court Cause No. 95-62085A.
Panel consists of Justices HEDGES, JENNINGS, and NUCHIA.
MEMORANDUM OPINION
This is an appeal from a judgment in garnishment granted in favor of appellee, David M. Gleason, against appellant, Chartway Federal Credit Union (Chartway), signed on October 14, 2002. Chartway timely filed a motion for new trial on November 11, 2002, which was later overruled by operation of law. Chartway filed its notice of restricted appeal on March 25, 2003.
Appellee has filed a motion to dismiss the restricted appeal for want of jurisdiction, contending that restricted appeal is not available to parties who have timely filed a motion for new trial. See, Wright Brothers Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex.App.-Houston [1st Dist.] 2001, no pet.). We agree.
Appellant cites Osteen v. Osteen, 38 S.W.3d 809, 811-12 (Tex.App.-Houston [14th Dist.] 2001, no pet.) and Lawyer Lloyds of Texas v. Webb, 152 S.W.2d 1096, 1098 (Tex. 1941), for the proposition that the fact that it filed a motion for new trial does not defeat this Court's jurisdiction to consider its restricted appeal. In Webb, the supreme court's holding was based on the court's interpretation of a 1939 writ of error statute which provided "[n]o party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review of by the Court of Civil Appeals through means of writ of error." 152 S.W.2d at 1097. However, in 1997, the Supreme Court promulgated Texas Rule of Appellate Procedure 30, which 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). Restricted appeals replace writ of error appeals to the court of appeals. . . .
Tex.R.App.P. 30 (emphasis added). In light of the Rule 30, which specifically replaced the former writ of error, we hold that Webb is inapplicable to this case. Moreover, Osteen is inapplicable because there, the court noted that "[n]o post-judgment motion was filed by either party." Osteen, 38 S.W.3d at 811. The motion for new trial in issue was "unrelated to the Final Decree of Divorce . . . on appeal." Id. At 813. Here, appellant timely filed a postjudgment motion. See Krough, 67 S.W.3d at 273 (listing no timely filing of a post-judgment motion or request for findings of fact and conclusions of law as one of the five elements an appellant must establish to prevail on restricted appeal). The requirements of a restricted appeal, including the lack of filing of any postjudgment motions, are jurisdictional, and failure to meet the requirements deprives a party of a restricted appeal. See Clopton v. Pak, 66 S.W.3d 513, 515 (Tex.App.-Fort Worth 2001, pet. denied). Accordingly, we dismiss the appeal for want of jurisdiction.