                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-16-00764-CV

                              Miguel GUERRA and Ana Anita Guerra,
                                         Appellants

                                                  v.

                    Copernicus GUERRA, Eric Stubbs, and Monica Trish Guerra,
                                         Appellees

                     From the 285th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2015-CI-10888
                               Honorable Larry Noll, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 4, 2018

MOTION TO DISMISS GRANTED; APPEAL DISMISSED FOR WANT OF JURISDICTION

           This is an attempted restricted appeal from a default judgment against appellants, Miguel

Guerra and Ana Anita Guerra, and in favor of appellees, Copernicus Guerra, Eric Stubbs, and

Monica Trish Guerra. On appeal, appellants contend there is error apparent on the face of the

record because the record does not establish they were properly served with notice of the trial

setting. While the appeal was pending, appellees filed a motion to dismiss, arguing this appeal

should be dismissed for want of jurisdiction because appellants timely filed a post judgment

motion, precluding them from seeking a restrictive appeal. Appellees also filed a motion to award
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damages, requesting that we award them damages as a sanction against appellants’ counsel

because the appeal is frivolous. Because appellants timely filed a motion for new trial and such a

motion precludes them from seeking a restricted appeal, we grant appellees’ motion to dismiss and

dismiss this appeal for want of jurisdiction. We further deny appellees’ request for damages as a

sanction against appellants’ counsel for pursing a frivolous appeal.

                                            BACKGROUND

        The underlying dispute concerns the ownership of real property and partnership interests.

On July 2, 2015, appellees filed suit seeking declaratory relief, requesting the trial court to declare

the parties’ rights and liabilities with respect to the disputed real property and partnership interests.

In their petition, appellees also sought a temporary injunction and restraining order to prevent

appellants from using any funds related to the partnership, accessing the business, communicating

with the business’s employees, and destroying any business property in their possession.

Appellants filed an answer and counterclaim alleging conversion, breach of fiduciary duty, and

quantum meruit. On July 10, 2015, the trial court signed an order granting both a restraining order

and temporary injunction in favor of appellees. The record reflects the restraining order and

temporary injunction were extended to September 10, 2015.

        Thereafter, the case proceeded to a bench trial at which appellants failed to appear. The

trial court subsequently rendered a default judgment in favor of appellees on May 24, 2016. The

record reflects that on June 21, 2016, appellants timely filed a motion for new trial, seeking to

vacate the default judgment. In their motion, appellants argued they did not receive notice of the

trial setting. A hearing on the motion for new trial was held on July 22, 2016, and all parties

appeared in person represented by counsel.              During the hearing, appellants requested a

continuance, and the hearing was reset for September 1, 2016. After the September hearing, the



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trial court denied appellants’ motion for new trial. Six months later — after the signing of the trial

court’s default judgment — appellants filed a notice of restricted appeal.

                                             ANALYSIS

       On appeal, appellants contend there is error apparent on the face of the record because the

record does not establish they were properly served with notice of the trial setting. Specifically,

appellants assert the record does not demonstrate they were served with actual or constructive

notice of the trial setting. For support, appellants point to an affidavit by Ana Anita Guerra, who

states she was out of the country when appellees’ counsel left notice of the trial setting at her

doorstep.

                               Applicable Law — Restricted Appeal

       A restricted appeal is a direct attack on a default judgment. Paez v. Trent Smith Custom

Homes, No. 04–13–00394-CV, 2014 WL 1089751, at *2 (Tex. App.—San Antonio March 19,

2014, no pet.) (mem. op.) (citing Eguia v. Eguia, 367 S.W.3d 455, 458 (Tex. App.—Corpus Christi

2012, no pet.); Whitaker v. Rose, 218 S.W.3d 216, 219 (Tex. App.—Houston [14th Dist.] 2007,

no pet.)). To prevail on a restricted appeal, an appealing party must show that: (1) he brought the

appeal within six months after the trial court signed the judgment; (2) he was a party to the suit;

(3) he did not “participate” in the hearing that resulted in the complained-of judgment, nor did he

timely file any post judgment motions or requests for findings of fact and conclusions of law; and

(4) error is “apparent from the face of the record.” See TEX. R. APP. P. 30; Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Paez, 2014 WL 1089751, at *2. “These requirements

are jurisdictional and will preclude a party’s right to seek relief by way of a restricted appeal if

they are not met.” Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 317 (Tex. App.—Fort Worth

2015, no pet.); see Paez, 2014 WL 1089751, at *2.



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                                         Motion to Dismiss

       Before addressing appellants’ contention regarding improper service, we must first address

appellees’ motion to dismiss because it raises jurisdiction concerns. See Minton v. Gunn, 355

S.W.3d 634, 639 (Tex. 2011), rev’d on other grounds, 568 U.S. 251 (2013) (holding appellate

court must determine its jurisdiction to consider appeal before reaching merits). In their motion,

appellees assert this court lacks jurisdiction over this restricted appeal because appellants timely

filed a post judgment motion when they filed their motion for new trial on June 21, 2016. In their

brief, appellants acknowledge a motion for new trial was timely filed on June 21, 2016.

Appellants, however, contend the motion was “conclusory and had a number of failings[,]” and

therefore did not constitute a proper motion for new trial for purposes of pursing a restricted appeal.

We disagree.

       As indicated above, the requirements of a restricted appeal are jurisdictional. Gartman,

469 S.W.3d at 317; Paez, 2014 WL 1089751; Rodarte v. Bexar County, No. 04-12-00211-CV,

2013 WL 1908381, at *3 (Tex. App.—San Antonio May 8, 2013, pet. denied) (mem. op.).

“Because the requirements are jurisdictional, if a party timely files a post judgment motion, a

restricted appeal is not available.” Gartman, 469 S.W.3d at 317; see Rodarte, 2013 WL 1908381,

at *3 (“When a party files a timely post-judgment motion, we lack jurisdiction over a restricted

appeal.”). A motion for new trial is a type of post judgment motion that extends the appellate

deadlines.   See Gartman, 469 S.W.3d at 316.           Contrary to appellants’ assertion that their

“conclusory” motion did not constitute a proper motion for new trial, “any timely-filed motion

seeking to vacate the trial court’s judgment, even a motion asserting meritless grounds for vacating

the judgment, constitutes a motion for new trial that will extend the appellate timetable.” Id.

(emphasis added); see, e.g., PopCap Games, Inc. v. MumboJumbo, 350 S.W.3d 699, 717 (Tex.

App.—Dallas 2011, pet. denied) (holding motion for new trial on damages, which did not request
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trial court to vacate judgment but only sought new trial exclusively on damages, sufficed as motion

for new trial); see also Taylor v. Trans–Cont’l Props., Ltd., 739 S.W.2d 873, 876 (Tex. App.—

Tyler 1987, no writ) (construing “Demand for Removal” as post judgment motion that extended

the appellate timetable).

       In this case, the trial court rendered a default judgment against appellants on May 24, 2016,

and the appellants timely filed a motion for new trial on June 21, 2016 — within thirty days of the

final judgment. See TEX. R. CIV. P. 329b(a) (“A motion for new trial, if filed, shall be filed prior

to or within thirty days after the judgment or other order complained of is signed.”). In their motion

for new trial, appellants sought to vacate the judgment and to extend the appellate deadlines.

Accordingly, the motion constituted a proper motion for new trial, the timely filing of which

precluded appellants from pursuing a restricted appeal. See Gartman, 469 S.W.3d at 317; Rodarte,

2013 WL 1908381, at *3. We therefore grant appellees’ motion to dismiss and dismiss the appeal

for want of jurisdiction. See TEX. R. APP. P. 30; Gartman, 469 S.W.3d at 317; Rodarte, 2013 WL

1908381, at *3.

                                       Motion for Sanctions

       As indicated in the introduction, while the appeal was pending in this court, appellees filed,

in addition to their motion to dismiss, a motion asking this court to award them damages under

Texas Rule of Appellate Procedure 45. Appellees argue they are entitled to such damages because

appellants’ appeal is frivolous because counsel for appellants filed the notice of restricted appeal

fully aware that a post judgment motion was timely filed in this case, precluding a restricted appeal.

       Rule 45 of the Texas Rules of Appellate Procedure provides that an appellate court may

award damages to a prevailing party if it objectively determines an appeal is frivolous. TEX. R.

APP. P. 45.2. “To determine whether an appeal is objectively frivolous, we review the record from

the standpoint of the advocate and decide whether the advocate had reasonable grounds to believe
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the case could be reversed.” In re Willa Peters Hubberd Testamentary Trust, 432 S.W.3d 358,

369 (Tex. App.—San Antonio 2014, no pet.). “Whether to grant sanctions for a frivolous appeal

is a matter of discretion that this court exercises with prudence and caution and only after careful

deliberation in truly egregious circumstances.” Id.

       In this case, we hold appellants’ appeal is not frivolous. Although appellate counsel for

appellants acknowledged in the notice of appeal, as well as in the appellate brief, that a motion for

new trial was timely filed, counsel argued that the merits of the motion for new trial were

insufficient to constitute a proper motion for new trial. Accordingly, counsel attempted to argue

for an extension of the law, which we conclude is not so egregious as to warrant an award of just

damages to appellees. See id. Accordingly, we deny appellees’ request for damages.

                                           CONCLUSION

       Having determined that we lack jurisdiction over this appeal, we grant appellees’ motion

to dismiss and dismiss this appeal. We further deny appellees’ motion to award damages.

                                                  Marialyn Barnard, Justice




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