Restricted Appeal Cases from the Houston Courts of Appeals
Houston-Opinions
Texas Supreme Court
Cases

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

A restricted appeal is available when (1) it is filed within six months after the trial court signed the judgment; (2) by a party to
the suit; (3) who, either in person or through counsel, did not participate at trial and did not timely file any post-judgment
motions or requests for findings of fact and conclusions of law; and (4) error is apparent from the face of the record.  Tex. R.
App. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).  The face of the record consists of all
papers on file in the appeal.  Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

To attack a judgment by a restricted appeal, the appeal must be filed (1) within six months after the trial court signs the
judgment; (2) by a party to the suit; (3) who, either in person or through counsel, did not participate at trial; and (4) the error
must be apparent from the face of the record. TEX. R. APP. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845,
848 (Tex. 2004); Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Barry v. Barry, 193
S.W.3d 72, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The face of the record consists of all the papers on file in the
appeal, including any reporter’s record. Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no
pet.).  A review of a restricted appeal includes review of the legal and factual sufficiency of the evidence, including the
evidence of damages.  Norman Commc’ns, 955 S.W.2d at 270; Regions Bank v. Centerpoint Apartments, 290 S.W.3d 510,
512 (Tex. App.—Amarillo 2009, no pet.).

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.
RESTRICTED APPEAL DEFINED: 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).  
REQUISITES OF RESTRICTED APPEAL. 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.).

LINKS TO OPINIONS IN RESTRICTED APPEALS FROM HOUSTON COURSE OF
APPEALS

Tx DPS v. Dahlquist (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Keyes)
(
expunction reversed in restricted appeal)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Evelyn Keyes     
Before Justices Keyes, Sharp and Massengale
01-08-00559-CV  Texas Department of Public Safety v. Sharon R. Dahlquist    
Appeal from 1st District Court of Jasper County
Trial Court Judge:  Judge Joe Bob Golden

Parr v. Parr (Tex.App,- Houston [1st Dist.] May 21, 2009)(Hanks)
(
attorneys fees award vacated in family law case, no evidence presented on fees)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Hanks Before Chief Justice Radack,
Justices Alcala and Hanks
01-07-00750-CV D'Juana Parr v. Brian Parr
Appeal from 247th District Court of Harris County
Trial Court
Judge: Hon. Bonnie Hellums  

World Environmental,LLC v. Wolfpack Environmental, LLC (Tex.App.- Houston [1st Dist.] Mar. 12, 2009)
(Jennings)(
default judgment, restricted appeal, suit on account, quantum meruit)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Jennings  
Before Justices Jennings, Keyes and Higley
01-08-00561-CV World Environmental, LLC v. Wolfpack Environmental, LLC  
Appeal from County Court at Law No 2 of Montgomery County
Trial Court Judge: Judge Jerry Winfree  

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  

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 (
Judge Elizabeth Ray)

Whitaker v. Rose (Tex.App.- Houston [14th Dist.] Feb. 6, 2007)(Anderson)
(
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 Ltd. (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   
Houston Opinions
Caselaw Web Pages by
Topic and Practice Area

FEEDBACK
Email Webmaster
Comment on this Site

AVAILABLE SERVICES
(FOR ATTORNEYS)
(click links for email)
SEO AND SEARCH ENGINE MARKETING FOR
LAWYERS
LAW LINK LEVERAGE
CIVIL LITIGATION SUPPORT
RESEARCH AND PARALEGAL E-SERVICES

PRACTICE AREA AND
LEGAL TOPICS PAGES
ADR in Family Courts
Amicus Attorney & Ad Litem
Attorney's Fees Awards
Animal Law Cases
Arbitration Case Law
Arbitration Confirmation Suits
Attorney Fee Litigation
Attorney Malpractice
Auto & Truck Accident Cases
Bill of Review Cases
Car Wreck Litigation
Child Support Cases
City of Houston Lawsuits
Commercial Lease Disputes
Commercial Real Estate Litigation
Consumer Law DTPA Litigation
Condemnation Suits
Constitutional Challenges
Construction Law Disputes
Contractors & Subcontractors
Contempt of Court
Contempt of Court (family law)
CPS DFPS Termination Suits
Credit Card Debt Suits
Default Judgments
Default Judgment in Family Court
Discovery Disputes
Divorce & Child Custody Suits
Division of Marital Property
Election Law Litigation
Eminent Domain Cases
Employment Litigation
Ethics and Recusal
Expunction Cases
Family Law Cases
Family Mediation ADR
Firefighter Litigation
Foreclosure
Foreign Judgments
Forum and Venue
Fraudulent Transfers (UFTA)
Government Entities
Grandparent Rights
Harris County Litigation
HCAD Appraisal Appeals
Health Care Coverage
Healthcare Liability Lawsuits
Homeowners in Court
Insurance Litigation
International Family Law
Juvenile Court Cases
Labor and Employment
Legal Malpractice
Breach of Lease Cases
Landlord-Tenant Disputes
Medical Coverage Lit
Medical Malpractice Suits
Modification SAPCR Suits
Official Immunity Cases
Paternity Parentage Actions
Post-Divorce Actions
Premises Liability Suits
Premises Liability-Crimes
Probate Court Cases
Product Liability Lawsuits
Property Tax Appraisal Appeals
and Tax Suits
Public Employment
Real Estate Litigation
Restaurant Litigation
Restricted Appeals
Sanctions Caselaw
SAPCR Modification
School Law Cases
School Districts in Court
Slip and Fall PI Lawsuits
Sovereign Immunity
Temporary Injunctions
Texas Tort Claims Act
Worker's Comp Appeals
Workplace Safety Injury
Venue Challenges
TEXAS CAUSES OF ACTION BLOG
HOUSTON CASE LAW BLOG
AUSTIN CASE LAW BLOG
1/18/10