Restricted Appeals Cases from Houston Courts of Appeal (Tex.App.- Houston 2008)

Default Judgment reversed in
restricted appeal. Defendant was
not properly named and served
with citation

Koa Holdings, LP v. Young, No.
07-0197 (Tex. 2008) (Hecht) (restricted
appeal, default judgment)
(partnership law, defendant not sued
and not properly served in individual
capacity, default judgment not proper)

Supreme Court Grants Mandamus
Relief to Stop Execution of
Judgment Voided for Defect of
Service

In Re Discount Rental, Inc., No.
05-0249 (Tex. Mar. 2, 2007)(per
curiam)(mandamus proceeding)
(default judgments, remedies, restricted
appeal)

While pursuing a restricted appeal from
a default judgment entered against it,
Discount Rental, Inc. did not supersede
the judgment. Plaintiffs obtained a writ
of execution. The court of appeals
reversed the default judgment before
the constable sale was to take place,
and Discount Rental moved for return
of its property. The Supreme Court
grants mandamus relief to set aside the
post-judgment orders and to direct the
trial court to return the seized property.
The Court holds that the trial court did
not have the power to order the sale of
the property because the underlying
default judgment was void for lack of
proper service of citation, and the
debtor did not waive its rights under
that statute that allows a judgment
debtor to recover property seized, but
not yet sold, when the judgment is set
aside. The Court rejects that argument
that the parties' agreement on the
terms of the sale is binding because
the agreement was based on the
incorrect premise that the trial court
had the authority to order the sale.

Opinion below: Discount Rental, Inc. v. Carter,
No. 10-03-00276-CV (Tex.App.- Waco May 5,
2004, pet. denied)(mem. op.)(judgment void,
defect of service)

Key case: Smith v. Commercial Equip.
Leasing Co., 678 S.W.2d 917 (Tex.
1984)(default judgment void for want of proper
service)

Terms: Restricted appeal, default judgment,
insufficient defective service of process,
execution of judgment, waiver of statutory
rights, contractual waiver

Also see ---> Houston Texas Bill of Review cases

What is the difference between a restricted appeal and a Bill of Review in Texas? A bill-of-review
proceedings is a law suit filed to challenge a final judgment in a prior suit that can no longer be appealed
directly.

A restricted appeal is a procedural device available to a party who did not participate, either in person
or through counsel, in a proceeding that resulted in a judgment against the party. Tex. R. App. P. 30. It
constitutes a direct attack on a default judgment. Id.; Gen. Elec. Co. v. Falcon Ridge Apartments Joint
Venture, 811 S.W.2d 942, 943 (Tex. 1991). A party filing a restricted appeal must demonstrate that (1) he
appealed within six months after the judgment was rendered, (2) he was a party to the suit, (3) he did not
participate in the actual trial of the case, and (4) error appears on the face of the record. See Tex. R.
App. P. 30; Quaestor Inv., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999). The face of the record
includes all papers on file in the appeal, including the clerk’s record and any reporter’s record. DSC Fin.
Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991); Davenport v. Scheble, 201 S.W.3d 188, 193 (Tex. App.
—Dallas 2006, pet. filed). Because a restricted appeal affords an appellant the same scope of review as
an ordinary appeal, he may challenge the legal and factual sufficiency of the evidence. See Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Whitaker v. Rose, No. 14-04-01178-
CV, 2007 WL 324595, at *1 (Tex. App.—Houston [14th Dist.] Feb. 6, 2007, no pet.).

Lushann International Energy Corp. v. Harris County (Tex.App.- Houston [1st Dist.] Sep. 11, 2008)(per
curiam) (no jurisdiction over restricted appeal; motion for new trial in court below precludes restricted
appeal)
DISMISS APPEAL: Per Curiam
Before Justices Nuchia, Alcala and Hanks
01-07-00119-CV        Lushann International Energy Corp. v. Harris County
Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan

Mbonu v. Office of the Attorney General (Tex.App.- Houston [1st Dist.] May 22, 2008)(Radack)
(family law, paternity, retroactive child and medical support, restricted appeal of UIFSA default judgment
fails)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00659-CV Chike Rapulueke Mbonu v. Office of the Attorney General
Appeal from 328th District Court of Fort Bend County
Trial Court Judge: Hon. Ronald R. Pope
Attorneys: John Oghenewoke Mukoro | AAGs: Martin J. Grimm   Rande K. Herrell, John B. Worley,
Michael D. Becker

Forrester v. Ginn (Tex.App.- Houston [14th Dist.] Jan. 10, 2008)(majority op. on rehearing by Hedges)
(DWOP dismissal reversed in restricted appeal)
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00549-CV Jeff Forrester and Kim Forrester v. Emmanuel Ginn, A&R Transport, Inc., Keith Jackson,
and Steve Brantley
Appeal from 333rd District Court of Harris County (Hon. Joseph J. Halbach)
Justice Guzman issued a dissenting opinion on rehearing in Forrester v. Ginn

Bank Repossessed Car Co. v. Who's Calling, Inc. (Tex.App.- Houston [14th Dist.] Sep. 4, 2007)(Anderson)
(restricted appeal, default judgment, service of process on Secretary of State)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Fowler and Seymore
14-05-01251-CV Bank Repossessed Car Co. d/b/a Thirty Car Sales v. Who's Calling, Inc.
Appeal from Co Civil Ct at Law No 2 of Harris County (Judge Gary Michael Block)

Forrester v. Emmanuel Ginn, A&R Transport, Inc., (Tex.App.- Houston [14th Dist.] Jul. 26, 2007)(Hedges)
(DWOJ, restricted appeal)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00549-CV Jeff Forrester and Kim Forrester v. Emmanuel Ginn, A&R
Transport, Inc., Keith Jackson, and Steve Brantley
Appeal from 333rd District Court of Harris County (Judge Joseph J. Halbach)

Berger v. Howard R. King & Hill, Angel & King, L.L.P (Tex.App.- Houston [1st Dist.] Jun. 21, 2007)(Bland)
(restricted appeal, malpractice, sanctions)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Nuchia, Hanks and Bland
01-06-00871-CV        Larry Berger v. Howard R. King & Hill, Angel & King, L.L.P., and Sam Lee, II, et al--
Appeal from 23rd District Court of Brazoria County (Hon. Ben Hardin)

Parent's signature on final decree constituted participation. Restricted Appeal limited to those
who did not participate at trial.

Chakey v. Chakey (Tex.App.- Houston [1st Dist.] May 17, 2007)(Nuchia)(appeal dismissed)
DISMISS APPEAL: Opinion by Justice Nuchia Before Justices Nuchia, Hanks and Bland
01-06-00848-CV Elizabeth Marie Chakey v. Zachary R. Chakey, Jr. and Dawn A. Chakey
Appeal from 312th District Court of Harris County

A restricted appeal is only available to a party who did not participate at trial. Here, the Court holds the
mother's signature on the final decree in a suit affecting the parent-child relationship constituted
participation, and that the restricted appeal was barred. The mother had approved the decree both as to
form and substance, but she had not appeared at the final hearing.
Key words: family law, SAPCR, restricted appeal, final order, appellate procedure

Default Judgment in Parentage Action Reversed in Part in Restricted Appeal

Miles v. Peacock and OAG (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Bland)
[family law, restricted, paternity, limitations]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Bland
(Before Chief Justice Radack, Justices Jennings and Bland)
01-06-00313-CV In The Matter of the Marriage of Bridget Peacock and Carnell Peacock
Appeal from 247th District Court of Harris County (Judge Bonnie Hellums)

We conclude that Miles has waived any statute of limitations defense and therefore affirm that portion of
the trial court’s judgment adjudicating his paternity of N.S.P. With respect to the portions of the judgment
awarding child support and denying possession, we conclude that insufficient evidence supports the trial
court’s findings and therefore reverse and remand for further proceedings.

Approx. $13,0022.99 v. State of Texas (Tex.App.- Houston [14th Dist.] Feb. 1, 2007)(per curiam dismissal)
(restricted appeal, untimely restricted appeal, DWOJ)
DISMISSED: Per Curiam
Before Justices Frost, Seymore and Guzman
14-06-01050-CV        Approximately $13,022.99 v. The State of Texas
Appeal from 165th District Court of Harris County (Jud g e Elizabeth Ray)

Whitaker v. Rose (Tex.App.- Houston [14th Dist.] Feb. 6, 2007)(Anderson)(auto PI, default, restricted
appeal, PI-auto, restricted appeal, no answer default judgment )
AFFIRMED AS MODIFIED IN PART AND REVERSED AND RENDERED IN PART: Opinion by Justice
Anderson
(Before Justices Anderson, Edelman and Frost)
14-04-01178-CV        Marcus Dunte Whitaker v. Lois Rose, John Rose Jr., and John Rose III
Appeal from County Civil Court at Law No 1 of Harris County (Judge R. Jack Cagle)

Harveston Securities Inc. v. Narnia Investments L td. (Tex.App.- Houston [14th Dist.] Jan. 11, 2007)(Frost)
(restricted appeal, default judgment, sufficiency of service)
REVERSED AND REMANDED: Opinion by Justice Frost
(Before Justices Anderson, Edelman and Frost)
14-05-00206-CV        Harveston Securities Inc. v. Narnia Investments L.T.D.
Appeal from 270th District Court of Harris County
Dissenting Opinion by Justice Edelman In Harveston Securities Inc. v. Narnia