Opinion
NO. 09-11-00363-CV
05-10-2012
IN THE INTEREST OF A.E.G.
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. F-209,606
MEMORANDUM OPINION
J.R.G. filed a suit affecting the parent-child relationship, in which he sought (1) the appointment of himself and K.N., A.E.G.'s mother, as joint managing conservators, (2) the right to designate A.E.G.'s primary residence, and (3) child support from K.N. The trial court entered a default judgment against J.R.G. for failure to appear for a hearing, appointed J.R.G. and K.N. as joint managing conservators, gave K.N. the right to designate A.E.G.'s primary residence, and ordered J.R.G. to pay child support, among other orders. In two issues, J.R.G. contends that he has satisfied the requirements for pursuing a restricted appeal from the default judgment and that error is apparent on the face of the record. We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
In a restricted appeal, an appellant must show that: (1) he timely filed a notice of restricted appeal; (2) he was a party to the underlying lawsuit; (3) he neither participated, either in person or through counsel, in a hearing that resulted in the judgment complained of, nor timely filed a postjudgment motion or request for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Elements one, three, and four are at issue in this case.
Regarding the first element, a restricted appeal must be filed within six months after the trial court signs its judgment. Tex. R. App. P. 26.1(c). An appellate court may extend the time to file a notice of appeal if, within fifteen days after the deadline for filing the notice, the appealing party files a notice of appeal with the trial court and a motion for extension of time. Tex. R. App. P. 26.3. A motion for extension of time is implied when an appellant acting in good faith files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
On December 1, 2010, the trial court held a hearing on J.R.G.'s petition and rendered a default judgment against J.R.G. On December 21, the trial court signed its judgment. Citing section 51.013 of the Civil Practice and Remedies Code, K.N. argues that the date judgment was rendered controls whether J.R.G.'s notice of appeal was timely filed. Section 51.013 requires an appeal within six months after a final judgment is rendered, while Rule 26.1 provides that a notice of restricted appeal must be filed within six months after a judgment is signed. Tex. R. App. P. 26.1(c); Tex. Civ. Prac. & Rem. Code Ann. § 51.013 (West 2008). The Texas Supreme Court has applied Rule 26.1 when setting forth the elements for a restricted appeal. Alexander, 134 S.W.3d at 848. We, therefore, conclude that the December 21 date, on which the trial court signed its judgment, controls. See Tex. R. App. P. 26.1(c); see also Alexander, 134 S.W.3d at 848. J.R.G. filed his notice of appeal on July 1, 2011, outside the six-month deadline, but within the fifteen-day grace period provided by Rule 26.3. See Tex. R. App. P. 26.1(c), 26.3. A motion for extension of time was implied. See Verburgt, 959 S.W.2d at 617. Accordingly, J.R.G.'s notice of appeal was timely filed.
The third element, the nature and extent of participation, is a matter of degree because trial courts decide cases in a wide variety of procedural settings. Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The question is whether the appellant participated in "the decision-making event" that resulted in a judgment adjudicating the appellant's rights. Id.
K.N. contends that J.R.G. participated in the case by agreeing to temporary orders and by filing post-judgment motions to modify. However, the December 2010 hearing, not the temporary orders, constitutes the relevant decision-making event because the hearing resulted in the adjudication of the parties' rights and led to the complained-of judgment.See Tex. R. App. P. 30; see also Alexander, 134 S.W.3d at 848; Texaco, 925 S.W.2d at 589. Additionally, J.R.G.'s motions to modify were not timely filed, and the record does not reflect that J.R.G. sought findings of fact and conclusions of law. See Tex. R. Civ. P. 329b(a), (g); see also Tex. R. App. P. 30; Alexander, 134 S.W.3d at 848; Vaughan v. Medina, No. 01-09-00885-CV, 2011 Tex. App. LEXIS 2431, at *6 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.). We cannot say that J.R.G. participated in the decision-making event that resulted in the default judgment against him.
We also note that the temporary orders are not contained in the appellate record.
Regarding the fourth element, our review is limited to errors apparent on the face of the record. Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009). Error that is merely inferred will not suffice. Id. J.R.G. argues that error is apparent because the trial court granted relief to K.N. when K.N. had not sought affirmative relief other than attorney's fees. K.N. responds that her original answer, which included a general denial and a prayer for general relief, was sufficient to raise issues affecting parentage.
Assuming, without deciding, that K.N.'s original answer was sufficient to entitle her to affirmative relief, the trial court could not properly grant K.N. relief under the circumstances of this case. Under Texas law, a defendant cannot take a default judgment that adjudicates the merits of the plaintiff's lawsuit. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 431 (1959), overruled on other grounds by Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990); Slaughter v. Clement, 64 S.W.3d 448, 450 (Tex. App.—El Paso 2001, no pet.); State v. Herrera, 25 S.W.3d 326, 328 (Tex. App.—Austin 2000, no pet.). Regardless of the sufficiency of K.N.'s original answer, the trial court's entry of a default judgment against J.R.G. for his failure to appear and which adjudicated the merits of J.R.G.'s lawsuit constitutes error apparent on the face of the record. See Slaughter, 64 S.W.3d at 450.
In summary, we conclude that J.R.G. has satisfied the elements for a restricted appeal. See Tex. R. App. P. 30; see also Alexander, 134 S.W.3d at 848. We sustain issues one and two, reverse the trial court's judgment, and remand the cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
________________________
STEVE McKEITHEN
Chief Justice
Before McKeithen, C.J., Kreger and Horton, JJ.