                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00786-CV

                      IN THE ESTATE OF LUELLA C. HARDIE, Deceased

                         From the Probate Court No. 2, Bexar County, Texas
                                   Trial Court No. 2008-PC-2790
                             Honorable Tom Rickhoff, Judge Presiding

PER CURIAM

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: March 25, 2015

DISMISSED FOR LACK OF JURISDICTION

           Appellant Don C. Reser attempts to appeal from a final judgment signed on April 14, 2014.

The notice of appeal, however, was not filed until October 28, 2014, well after the prescribed time

limit for perfecting appeal. See TEX. R. APP. P. 26.1. “[O]nce the period for granting a motion for

extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court’s

jurisdiction.”     See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the

predecessor to Rule 26); In re Estate of Padilla, 103 S.W.3d 563, 567 (Tex. App.—San Antonio

2003, no pet.). Appellant claims, however, that the notice of appeal is timely because he did not

receive notice of the final judgment until July 20, 2014.

           On December 3, 2014, appellee filed a Motion to Dismiss Appeal arguing that appellant

cannot rely on Rule 306a(4) because he received notice of the judgment 97 days after it was signed,
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and the rule expressly provides that the time period for discovery of a final judgment cannot extend

beyond 90 days. TEX. R. CIV. P. 306a(4); Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993). After

considering the motion to dismiss, as well as appellant’s response and appellee’s reply, we issued

an order in which we agreed that appellant received notice of the signing of the final judgment

outside of the 90-day time period prescribed by Rule 306a(4), and that therefore appellant cannot

rely on Rule 306a(4) to extend the time period for filing the notice of appeal. See TEX. R. CIV. P.

306a(4); Levit, 850 S.W.2d at 470. We then directed appellant to show cause in writing why this

appeal should not be dismissed for lack of jurisdiction; specifically, we ordered appellant to

address whether this court has jurisdiction to retain this appeal on our docket as a restricted appeal

under Rule 30. See TEX. R. APP. P. 30.

       To be successful in a restricted appeal, a notice of restricted appeal must be filed 1) 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; 4) who did not file a timely post-judgment

motion or request for findings of fact and conclusions of law; and 5) error must be apparent on the

face of the record. See id.; Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.

1997) (per curiam).

       Appellant filed a response in which he “stipulates that he was present and represented by

counsel” at the July 12, 2013 hearing which preceded the April 14, 2014 final judgment at issue.

Not only was counsel present, but during the hearing he “attempted to raise the issues outlined in

his Response to Appellee’s Motion to Enter Judgment” [on Appellee’s Motion for Traditional and

No Evidence Summary Judgment]. Thus, appellant must concede that he participated in the

hearing that resulted in the judgment complained of. Given his participation, we cannot conclude

that he has met the requirements for a restricted appeal. See TEX. R. APP. P. 30. Accordingly,

appellant’s notice of appeal is untimely, and we must dismiss this appeal for want of jurisdiction.
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See TEX. R. APP. P. 42.3(a); see also Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth

2001, pet. denied) (stating requirements for restricted appeal “are jurisdictional”). Appellee’s

motion to dismiss appeal is hereby granted.


                                                PER CURIAM




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