Opinion issued=20
February 2, 2006
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01=E2=80=9304=E2=80=9301097=E2=80=93CV
CHRISTOPHER HAMLETT,=20
Appellant
V.
JANICE HAMLETT AND ATTORNEY GENERAL OF =
TEXAS,=20
Appellees
On Appeal from the 245th District Court=20
Harris County, =
Texas
Trial Court Cause No.=20
2004-011856
MEMORANDUM OPINION
<=
/SPAN>Appellant,=20
Christopher Hamlett, through attempted conventional or restricted =
appeal,=20
seeks to reverse a trial court order denying his petition for bill =
of=20
review. In the alternative, Christopher requests that we consider =
his=20
brief a petition for writ of mandamus. Christopher asserts the =
following=20
issues: (1) whether our court has jurisdiction to consider the =
appeal, (2)=20
whether the trial court erred in denying the bill of review on the =
ground=20
of lack of diligence, and (3) whether the trial court erred in not =
entering findings of fact and conclusions of law.
<=
/SPAN>We=20
dismiss the matter because Christopher has not established that we =
have=20
jurisdiction to consider the matter as a conventional appeal, =
restricted=20
appeal, or as a petition for writ of mandamus.
Factual=20
Background
<=
/SPAN>On=20
April 3, 1990, Janice Hamlett gave birth to a son, D.H. Janice =
sought and=20
received financial support for her son from the State of Texas. =
The State,=20
through the Attorney General of Texas, brought a suit affecting =
the=20
parent-child relationship, cause number 91-28323, in the 245th =
District=20
Court of Harris County, against Christopher. Christopher approved =
an order=20
entered by the district court, adjudicating him the father of =
D.H.,=20
appointing Christopher as D.H.=E2=80=99s possessory conservator =
with visitation=20
rights, and ordering Christopher to pay Janice $110 per month =
child=20
support for D.H. The trial court did not dissolve Janice=E2=80=99s =
and=20
Christopher=E2=80=99s marital relationship. The district court =
signed the order on=20
November 11, 1991.
<=
/SPAN>More=20
than 12 years later, when Christopher decided to divorce Janice, =
upon=20
advice of counsel, Christopher procured a DNA test. The DNA report =
excluded Christopher as D.H.=E2=80=99s biological =
father.
<=
/SPAN>In=20
March 2004, Christopher filed his original petition for bill of =
review,=20
cause number 2004-11856, in the 245th District Court, seeking to =
have the=20
1991 order set aside. The Attorney General of Texas answered =
asserting,=20
among other things, the statute of limitations.
<=
/SPAN>On=20
June 2, 2004, the Associate Judge of the 245th District Court =
heard=20
Christopher=E2=80=99s original petition for bill of review, and =
denied it based on=20
the four-year statute of limitations. On June 4, 2004, Christopher =
filed=20
his notice of appeal of the Associate Judge=E2=80=99s report. =
Inexplicably, on=20
June 22, 2004, before the appeal was heard, the Honorable Lisa =
Millard,=20
Judge of the 310th District Court, signed an order denying the =
petition=20
for bill of review. The order bore the correct style, including =
references=20
to the court as the 245th and the cause number as 2004-11856. The =
order=20
also referenced the June 2, 2004 hearing, including the =
parties=E2=80=99=20
appearances.
<=
/SPAN>According=20
to Christopher=E2=80=99s brief, on July 16, 2004, the Honorable =
Annette Galik,=20
Presiding Judge of the 245th District Court, heard =
Christopher=E2=80=99s appeal,=20
affirmed the Associate Judge=E2=80=99s ruling, and dismissed =
Christopher=E2=80=99s bill of=20
review. The clerk=E2=80=99s record contains no order documenting =
Judge Galik=E2=80=99s=20
ruling. Christopher has not sought to supplement the record to =
include=20
such an order, and, in his brief, Christopher concedes that the =
June 22,=20
2004 order is the final order dismissing his bill of =
review.
<=
/SPAN>On=20
August 5, 2004, Christopher filed a request for findings of fact =
and=20
conclusions of law, followed on August 16, 2004 by a notice of =
past due=20
findings of fact and conclusions of law. On September 16, 2004,=20
Christopher filed a notice of appeal, stating his desire to appeal =
=E2=80=9Cthe=20
final judgment in this cause rendered on the 16th day of July,=20
2004.=E2=80=9D
Jurisdiction
<=
/SPAN>In=20
issue one, Christopher asserts that this court has jurisdiction to =
consider this appeal.
Conventional=20
Appeal Jurisdiction
=
Christopher=20
contends that the timetable for filing his notice of appeal runs =
from July=20
16, 2004, the date Judge Galik heard Christopher=E2=80=99s appeal =
of the Associate=20
Judge=E2=80=99s June 2, 2004 ruling denying Christopher=E2=80=99s =
bill of review.=20
Christopher cites Texas Rule of Appellate Procedure 33.1(a)(2)(A) =
as=20
authority. This rule provides: =E2=80=9C(a) In General. As a =
prerequisite to=20
presenting a complaint for appellate review, the record must show =
that: .=20
. . (2) the trial court: (A) ruled on the request, objection, or =
motion,=20
and the complaining party objected to the refusal.=E2=80=9D This =
rule relates to=20
preservation of error and not to jurisdiction. Therefore, it does =
not=20
constitute authority that confers jurisdiction on this Court to =
consider=20
Judge Galik=E2=80=99s July 16th, non-memorialized ruling instead =
of the only=20
memorialized ruling in the record, Judge Millard=E2=80=99s June =
22nd=20
order.
=
Christopher=20
maintains that Texas Family Code, section 201.015 ![3DFootnote](3D"")
mandates a de =
novo=20
hearing on an appeal from a decision of an associate judge, and =
that Judge=20
Millard=E2=80=99s June 22, 2004 signature of the order denying the =
bill of review=20
cut off his right to a de novo hearing before Judge Galik. =
Thus,=20
Christopher contends that the appellate timetables should begin to =
run=20
from July 16, 2004, the date Judge Galik apparently heard the =
appeal,=20
denied Christopher=E2=80=99s bill of review, but did not =
memorialize her ruling in=20
writing. Judge Millard=E2=80=99s June 22, 2004 order did not cut =
off Christopher=E2=80=99s=20
right to a de novo hearing of his appeal of the associate =
judge=E2=80=99s=20
report, which hearing he admittedly received on July 16th. The =
absence of=20
an order documenting Judge Galik=E2=80=99s July 16th ruling =
denying Christopher=E2=80=99s=20
bill of review, however, deprived Christopher of the ability to =
use July=20
16 as the date from which the appellate timetables run for notice =
of=20
appeal purposes. See Tex. R.=20
App. P. 26.1 (=E2=80=9CThe notice of appeal must be filed =
within 30 days=20
after the judgment is signed . . . =E2=80=9D) (emphasis=20
added).
=
Thus,=20
the appellate timetable started from Judge Millard=E2=80=99s =
signing of the order=20
denying Christopher=E2=80=99s bill of review on June 22, 2004. =
Christopher filed=20
no postjudment motions relative to this order. Therefore, his =
notice of=20
appeal was due to be filed within 30 days (by July 22, 2004). =
Tex. R. App. P. 26.1. =
Christopher=20
did not file his notice of appeal until September 16, 2004, =
outside the=20
rule 26.1 deadline and outside the 15-day grace period. See =
Tex. R. App. P. 26.3. =
Accordingly,=20
we are without jurisdiction to consider this matter by way of =
conventional=20
appeal.
Restricted Appeal or=20
Mandamus
=
In=20
the alternative, Christopher contends that using the June 22, 2004 =
date as=20
the starting point for the appellate timetable, we should consider =
this=20
appeal as a restricted appeal or a petition for writ of=20
mandamus.
=
A=20
party pursuing a restricted appeal must satisfy four elements: (1) =
notice=20
of the restricted appeal must be filed within six months after the =
judgment is signed; (2) by a party to the lawsuit; (3) who did not =
participate in the hearing that resulted in the judgment =
complained of and=20
did not file a timely postjudgment motion or request for findings =
of fact=20
and conclusions of law; and (4) error must be apparent on the face =
of the=20
record. Alexander v. Lynda=E2=80=99s Boutique, 134 S.W.3d =
845, 848 (Tex.=20
2004). Christopher conclusorily cites the rules of appellate =
procedure=20
pertaining to restricted appeals, Texas Rules of Appellate =
Procedure=20
26.1(c) and 30, but makes no showing in his brief that he meets =
the four=20
restricted appeal elements to qualify for restricted appeal =
jurisdiction.=20
Neither does Christopher develop an argument for considering the =
June 22nd=20
order by petition for writ of mandamus. Christopher has waived =
these=20
contentions. See =
Tex. R.=20
App. P. 38.1(h); Bradt v. West, 892 S.W.2d 56, 69 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1994, writ denied) =
(=E2=80=9Cauthorities alone are not=20
sufficient to comprise an =E2=80=98argument=E2=80=99 that suffices =
. . .=E2=80=9D under the rules=20
of appellate procedure).
Conclusion
=
We=20
dismiss the appeal for want of jurisdiction.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Laura=20
Carter Higley
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel=20
consists of Justices Taft, Higley, and=20
Bland. |