Elizabeth Marie Chakey v. Zachary R. Chakey, Jr. and Dawn A. Chakey

• Court: Court of Appeals of Texas
• Decided: May 17, 2007
• Docket: 01-06-00848-CV
• Status: Published

Opinion

Opinion issued May 17, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00848-CV

ELIZABETH MARIE CHAKEY, Appellant

V.

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

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 2006-10791

MEMORANDUM OPINION

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

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

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

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Hanks, and Bland.