Anthony Ray McGill v. AP McGill Enterprises, LLC and Pandora Lee

• Court: Court of Appeals of Texas
• Decided: February 27, 2025
• Docket: 01-23-00944-CV
• Status: Published

Opinion

Opinion issued February 27, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00944-CV ——————————— ANTHONY RAY MCGILL, Appellant V. AP MCGILL ENTERPRISES, LLC AND PANDORA LEE, Appellees

On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2021-22668

MEMORANDUM OPINION

On December 15, 2023, appellant Anthony Ray McGill filed a notice of

restricted appeal attempting to appeal from a final judgment signed on July 18, 2023

and a subsequent judgment nunc pro tunc signed on August 7, 2023. Appellees have

filed a motion to dismiss the appeal because appellant timely filed a motion for new trial and thus fails to satisfy a jurisdictional requirement for a restricted appeal.

Appellees also request sanctions against appellant for filing a frivolous appeal.

Appellant did not respond to the motion to dismiss. We grant the motion to dismiss

the appeal and deny the request for sanctions.

A notice of appeal is generally due to be filed within thirty days after the

judgment is signed. See TEX. R. APP. P. 26.1. A timely filed post-judgment motion

will extend the deadline to file the notice of appeal to ninety days after the judgment

is signed. See TEX. R. APP. P. 26.1(a). But a party may file a notice of restricted

appeal within six months after the judgment or order is signed. See TEX. R. APP.

P. 26.1(c).

Rule 30 of the Texas Rules of Appellate Procedure, dealing with restrictive

appeals, provides:

A party who did not participate—either in person or through counsel— in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).

TEX. R. APP. P. 30. A restricted appeal provides a party who did not participate at

trial the opportunity to correct an erroneous judgment.

In a restricted appeal, the filing party must show that: (1) he filed notice of the

restricted appeal within six months after the judgment was signed; (2) he was a party

to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the

2 judgment complained of, and did not timely file any post-judgment motions or

requests for findings of fact and conclusions of law; and (4) error is apparent on the

face of the record. Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020). The first three

requirements are jurisdictional, but the fourth one is not. See id. at 497 (holding that

fourth requirement is not jurisdictional as it requires analysis of merits of appellant’s

grounds for appeal).

Appellant’s notice of restricted appeal avers that “Defendant did not timely

file either a post-judgment motion, request for findings of fact and conclusions of

law, or notice of appeal.” But, as appellees correctly note in their motion to dismiss,

the clerk’s record demonstrates that appellant filed a timely motion for new trial on

September 6, 2023. Appellees filed a response to the motion for new trial on

September 21, 2023. The motion for new trial was denied by operation of law on

October 1, 2023. See TEX. R. CIV. P. 329b(c).

Appellate courts lack jurisdiction over a restricted appeal when the appellant

filed a timely post-judgment motion. See P & A Real Estate, Inc. v. Am. Bank of

Tex., 323 S.W.3d 618, 619 (Tex. App.—Dallas 2010, no pet.); Ameriquest Mortg.

Co. v. Marron, No. 14-13-00340-CV, 2013 WL 2444602, at *4 (Tex. App.—

Houston [14th Dist.] June 4, 2013, pet. denied) (mem. op.). Here, because appellant

filed a timely post-judgment motion, we lack jurisdiction and must dismiss the

appeal. See Ameriquest, 2013 WL 2444602, at *4.

3 Accordingly, we dismiss this appeal for lack of jurisdiction. Appellees’

request for sanctions under Texas Rule of Appellate Procedure 45 is denied. Any

other pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Guerra, Caughey, and Morgan.