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.").