Texas Judiciary Online - HTML Opinion

From: Subject: Texas Judiciary Online - HTML Opinion Date: Sun, 3 Jun 2007 18:24:21 -0500 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0003_01C7A60C.67A4F230" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3028 This is a multi-part message in MIME format. ------=_NextPart_000_0003_01C7A60C.67A4F230 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=84275 Texas Judiciary Online - HTML Opinion

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Opinion issued May 17, 2007

In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO.=20 01-06-00848-CV

ELIZABETH=20 MARIE CHAKEY, Appellant

ZACHARY R.=20 CHAKEY, JR. AND DAWN A. CHAKEY, Appellees

On = Appeal=20 from the 312th District Court

Harris=20 County, Texas

Trial Court=20 Cause No. 2006-10791

MEMORANDUM=20 OPINION

Appellant,=20 Elizabeth Marie Chakey, brings this restricted appeal from a final = order=20 in a suit affecting the parent-child relationship. The district = court=20 appointed appellees, Zachary R. Chakey, Jr. and Dawn A. Chakey, = the=20 paternal grandfather and paternal step-grandmother of the minor = child, as=20 joint managing conservators. Appellant and Sean Robinson, the = child's=20 biological mother and father, were also appointed joint managing=20 conservators. Appellant signed a waiver of service in which she = requested=20 the district court "not to enter any orders or judgment not signed = by me=20 or without my receiving prior written notice of the date, time, = and place=20 of the proceedings." Although appellant approved the final order = as to=20 both form and substance, she claims she did not receive notice of = the=20 final hearing. The appellate record does not reflect that = appellant ever=20 sought to withdraw her approval of the final order.

Appellant=20 neither filed a motion for new trial, a regular appeal, or a = motion=20 claiming that she did not receive notice of the district court's = final=20 order pursuant to Texas Rule of Civil Procedure 306a. Instead, = appellant=20 timely filed a restricted appeal pursuant to Texas Rule of = Appellate=20 Procedure 30. See Tex. Civ. Prac. & Rem. Code Ann. = =A7 51.013=20 (Vernon 1997). Only a party who did not participate at trial can = bring a=20 restricted appeal. Tex. R. App. P. 30. Although appellant was not = present=20 at the actual hearing, she approved the final order as to both = form and=20 substance. We hold that this constitutes participation on = appellant's=20 part. See Texaco, Inc. v. Cent. Power & Light = Co.,=20 925 S.W.2d 586, 589 (Tex. 1996) (party who has taken part in all = steps of=20 summary judgment except hearing has participated); Stubbs v.=20 Stubbs, 685 S.W.2d 643, 645 (Tex. 1985) (approving holding in = Blankinship v. Blankinship, 572 S.W.2d 807, 808 (Tex. = Civ.=20 App.--Houston [14th Dist.] 1978, no writ)) (party who waived = citation in=20 divorce proceeding, but signed decree before trial court signed = it,=20 participated). Appellant therefore cannot bring a restricted=20 appeal.

We dismiss=20 the appeal for want of jurisdiction. The Clerk of this Court is = directed=20 to issue the mandate immediately. See Tex. R. App. P. = 18.6.=20

Sam Nuchia=20

Justice

Panel=20 consists of Justices Nuchia, Hanks, and=20 Bland.

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