Seymore v. Seymore, No. 14-07-00280-CV (Tex.App.- Houston [14th Dist.] Feb. 24,
2009)(Guzman)(restricted appeal requisites, divorce decree, non-participation, appearance,
waiver of citation)
Bedrije has not met the jurisdictional requirements for a restricted appeal
because she participated in the hearing that resulted in the judgment.
Because we lack jurisdiction over this restricted appeal, we must dismiss it.
We therefore do not reach Bedrijes other issues or her motion for sanctions.
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BEDRIJE HAJDARI SEYMOUR, Appellant
V.
FLOYD DAVID SEYMOUR, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2005-73510
M E M O R A N D U M O P I N I O N
In this restricted appeal, appellant Bedrije Hajdari Seymour challenges a final decree of
divorce on the grounds that she did not sign the decree, the waiver of citation is
defective, the motion to reinstate the case was unverified, and appellee Floyd David
Seymour was granted relief for which he did not plead. Because we conclude that
Bedrije participated in the hearing resulting in the judgment, we lack jurisdiction over
this restricted appeal and therefore dismiss her appeal.
I. Background
Bedrije Hajdari Seymour (“Bedrije") and Floyd David Seymour (“Floyd") were married
in December 2001. After separating in 2003, Floyd filed an original petition for divorce
in November 2005. In his petition, Floyd alleged that their marriage had become
insupportable, no children had been born to or adopted by them during their marriage,
and that no community property (other than personal effects) had been accumulated
during the course of the marriage. In April 2006, Bedrije filed a waiver of citation, in
which she (a) stated she had received a copy of Floyds petition for divorce, read it, and
understood it; (b) entered her appearance in the case for all purposes and waived
the issuance and service of citation; (c) agreed the case could be taken up and
considered without further notice; and (d) waived the making of a record of testimony.
On August 28, 2006, the case was dismissed for want of prosecution by the trial
court. Notwithstanding the dismissal order, the trial court heard this case on September
1, 2006. On September 5, the parties filed an unverified agreed motion to reinstate the
case on the trial courts docket, which was granted by the trial court on September 18.
Also on that day, the trial court signed the final decree of divorce. The decree, which
indicates that the trial court heard the case on September 1, 2006, provides that Floyd
appeared in person and Bedrije waived her appearance and “agreed to the terms of
this judgment to the extent permitted by law." In the decree, the trial court found, among
other things, that:
* Floyd and Bedrije had entered into a written agreement “as contained in
this decree by virtue of having approved this decree as to both form and substance;"
* there were no children born or adopted during the marriage; and
* “significant community property" had been accumulated by Floyd and
Bedrije.
The trial court awarded Floyd a truck; a residence located in Houston; foreign real
property titled to Bedrije located in Pristina, Kosovo;[1] and reimbursement of $20,000
to be paid by Bedrije for Floyds contributions to her separate property. Bedrije was
awarded a car, a motorcycle, and an apartment home, also located in Pristina, Kosovo.
Floyd signed the divorce decree; Bedrije did not. On March 19, 2007, Bedrije filed a
notice of restricted appeal.
II. Issues Presented
In four issues, Bedrije contends she is entitled to a new trial because her notice of
restricted appeal was timely filed, she was a party to the lawsuit, she did not
participate in the hearing resulting in the judgment, and error is apparent on the face of
the record. In a separate motion included with her appellate brief, Bedrije also seeks
sanctions for Floyds failure to comply with this courts mediation order.
III. Analysis
A. Standard of Review
To prevail on a restricted appeal, an appellant must demonstrate the following: (1) the
notice of restricted appeal was filed within six months of the date of the judgment or
order; (2) she was a party to the suit; (3) she did not participate in the hearing that
resulted in the judgment complained of and did not file a timely post‑judgment motion or
request for findings of facts and conclusions of law; and (4) error is apparent from the
face of the record. See Tex. R. App. P. 30; Alexander v. Lyndas Boutique, 134 S.W.3d
845, 848 (Tex. 2004). These requirements are jurisdictional and cut off a partys right to
seek relief by way of a restricted appeal if not met. See Clopton v. Pak, 66 S.W.3d
513, 515 (Tex. App.- Fort Worth 2001, pet. denied). The parties concede Bedrije
meets the first two elements; thus we focus our analysis on whether Bedrije has
established that (a) she did not participate in the hearing resulting in the judgment and
(b) error is apparent on the face of the record.
B. Bedrijes Participation
“The nature and extent of participation precluding a restricted appeal in any particular
case is a matter of degree because trial courts decide cases in a myriad of procedural
settings." McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 129 (Tex. App.- Houston
[14th Dist.] 2004, no pet.) (citing Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d
586, 589 (Tex. 1996)). For example, a partys statement in a waiver of service that she
entered her appearance for all purposes does not rise to the level of participation at
trial. Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.- Fort Worth 2003, no
pet.) (citing Texaco, Inc., 925 S.W.2d at 590). Further, a party who waives citation and
the making of a statement of facts and signed the judgment prior to entry has
participated sufficiently to preclude her right to a restricted appeal, although a party who
has signed a waiver of citation and a preliminary divorce agreement has not. Compare
Blakinship v. Blakinship, 572 S.W.2d 807, 808- 09 (Tex. Civ. App.- Houston [14th Dist.]
1978, no writ) (waiver of citation and making of record and signing judgment precludes
review by writ of error) with Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985)
(signing waiver of citation and agreement incident to divorce not sufficient participation
to preclude review via writ of error). The facts of this case fall on the spectrum between
those present in Blankinship, in which this court concluded that the appellant had
participated in the proceedings below and was thus precluded from seeking relief
through a restricted appeal, and the facts present in Stubbs, in which the Texas
Supreme Court concluded that the appellant had not participated sufficiently to preclude
review by restricted appeal.
Here, Bedrije signed a waiver of citation, in which she explicitly waived the making of a
record and entered her appearance for all purposes. This waiver alone, however, is not
sufficient participation to preclude her from entitlement to a restricted appeal. See
Campsey, 111 S.W.3d at 771; see also Stubbs, 685 S.W.2d at 645. As noted above,
after this case was dismissed for want of prosecution, Bedrije and Floyd signed an
agreed motion to reinstate. Although this motion was unverified, it was signed by both
parties, which is tantamount to a verified motion. See Tex. R. Civ. P. 154(a); Fed.
Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex. App.- Houston [14th Dist.]
1995, writ denied). This motion provides that
[t]he parties have substantially agreed to the terms to be included in the Final Decree of
Divorce. . . . [Floyd] appeared in court and a Final Decree of Divorce was proven up on
September 1, 2006. . . . BOTH [Floyd] and [Bedrije] request that the [trial court] enter
[the order] reinstating the divorce action, reissue its findings previously issued at [the]
hearing on September 1, 2006, and [] finalize the Decree of Divorce as proven up on
September 1, 2006.
This motion was filed on September 5, 2006, after the hearing on this case was held.[2]
We conclude that the “nature and extent" of Bedrijes participation in the divorce
proceedings are more similar to those present in Blankinship than those in Stubbs.
Although Bedrije did not sign the divorce decree, she signed an agreed motion to
reinstate in which she requested that the trial court finalize the “divorce decree" proven
up at the September 1, 2006 hearing. The divorce decree indicates that the trial court
heard the case on September 1, 2006. By signing the motion to reinstate, Bedrije
indicated her approval of the terms of the divorce decree, similar to the appellant in
Blankinship, who signed the trial courts judgment prior to its entry by the trial court.
Blankinship, 572 S.W.2d at 808.
Moreover, this case is distinguishable from Stubbs in several respects. First, unlike the
appellant in Stubbs, Bedrije waived the making of a record.[3] Cf. Stubbs, 685 S.W.2d
at 644 (noting that Ruth Stubbs “did not waive the making of a statement of facts").
Further, the appellant in Stubbs signed an agreement incident to the divorce;[4] here,
Bedrije filed a motion in which she requested that the trial court finalize the entire
divorce decree proven up at the hearing.
We conclude that, based on the facts of this case, by signing the motion to reinstate and
requesting that the trial court enter the decree, Bedrije signaled her acquiescence to the
divorce decree itself. Finally, because Bedrije filed the motion to reinstate after the
hearing resulting in the judgment was held, she has essentially filed a postjudgment
motion. Filing a postjudgment motion vitiates a partys right to a restricted appeal. See
Tex. R. Civ. P. 30 (“A party who did not participate . . . in the hearing that resulted in the
judgment complained of and who did not timely file a postjudgment motion . . . may file a
notice of appeal within the time permitted by Rule 26.1(c)." (emphasis added)); see
also Reyna v. Elizondo, No. 14-05-00622-CV, 2006 WL 1675380 (Tex. App.- Houston
[14th Dist.] June 20, 2006, no pet.) (mem. op.).
In sum, Bedrije signed a waiver of citation, entering her appearance for all purposes.
She also waived the making of a reporters record. Although she was not present at the
hearing in which the divorce decree was proven up, she indicated her approval of it by
signing an agreed motion to reinstate after the hearing was held and requesting entry of
the very judgment of which she now complains. Under these circumstances, we
conclude that Bedrije participated in the hearing resulting in the divorce decree. See
Blakinship, 572 S.W.2d at 808.
IV. Conclusion
Bedrije has not met the jurisdictional requirements for a restricted appeal because she
participated in the hearing that resulted in the judgment. Because we lack jurisdiction
over this restricted appeal, we must dismiss it. We therefore do not reach Bedrijes
other issues or her motion for sanctions.
/s/ Eva M. Guzman
Justice
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
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[1] A citizen of Kosovo was named to hold this property in trust for the benefit of Floyd.
[2] The divorce decree indicates that the trial court heard the case on September 1, 2006.
[3] Bedrije asserts that, because her mailing address is not included in the waiver of citation,
error is apparent on the face of the record. Although we agree that this waiver does not
comport with Texas Rule of Civil Procedure 119, we do not reach the issue of whether error is
apparent on the face of the record because we conclude that Bedrije participated in the hearing
resulting in the judgment.
[4] Id. (“Bernald and Ruth Stubbs signed an agreement incident to divorce prepared by
Bernalds attorney.").