                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00330-CV


AERO AT SP. Z.O.O.                                                   APPELLANT

                                        V.

DENNIS GARTMAN AND JERRY K.                                          APPELLEES
BAKER


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           FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                    TRIAL COURT NO. CV13-01-081

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                                   OPINION

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                                 I. INTRODUCTION

      This is an attempted restricted appeal.      The sole issue we address is

whether the special appearance filed by Appellant Aero at Sp. z.o.o. within thirty

days after the trial court signed a default judgment against Appellant and in favor

of Appellees Dennis Gartman and Jerry K. Baker constitutes a timely-filed

postjudgment motion that precludes Appellant’s pursuit of a restricted appeal
under Texas Rule of Appellate Procedure 30. See Tex. R. App. P. 30. Because

we hold that the special appearance filed here is such a postjudgment motion,

we will dismiss this restricted appeal for want of jurisdiction.

                                     II. THE LAW

                       A. Concerning Restricted Appeals

      A restricted appeal is a direct attack on the trial court’s judgment. See,

e.g., Gen. Elec. Co. v. Falcon Ridge Apts., J.V., 811 S.W.2d 942, 943 (Tex.

1991); Rone Eng’g Serv., Ltd. v. Culberson, 317 S.W.3d 506, 508 (Tex. App.––

Dallas 2010, no pet.).     Rule 30 of the Texas Rules of Appellate Procedure

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. Thus, to directly attack a judgment by restricted appeal, (1)

the appeal must be brought within six months after the trial court signed the

judgment; (2) by a party to the suit; (3) who did not participate in the hearing that

resulted in the judgment complained of; (4) who did not timely file a postjudgment

motion, a request for findings of fact and conclusions of law, or a notice of

appeal; and (5) the complained-of error that shows the invalidity of the judgment

is apparent on the face of the record. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.013 (West 2015); Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s


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Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Norman Commc’s v. Tex. Eastman

Co., 955 S.W.2d 269, 270 (Tex. 1997). 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. Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001,

pet. denied). Because the requirements are jurisdictional, if a party timely files a

postjudgment motion, a restricted appeal is not available. See Tex. R. App. P.

30; Wolf v. Andreas, 276 S.W.3d 23, 25 (Tex. App.––El Paso 2008, pet.

withdrawn); see also In re Estate of Head, 165 S.W.3d 897, 902–03 (Tex. App.––

Texarkana 2005, no pet.) (timely filing postjudgment motion to reconsider

summary judgment precluded restricted appeal); S.P. Dorman Exploration Co. v.

Mitchell Energy Co., 71 S.W.3d 469, 470 (Tex. App.—Waco 2002, no pet.)

(timely filing motion for new trial precluded restricted appeal); Lab. Corp. of Am.

v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.––Dallas 2000, no

pet.) (timely filing motion to set aside default judgment precluded restricted

appeal); Thomas v. Tex. Dep’t of Criminal Justice, 3 S.W.3d 665, 666–67 (Tex.

App.––Fort Worth 1999, no pet.) (timely filing motion to reinstate precluded

restricted appeal); Moncrief v. Harvey, 805 S.W.2d 20, 23–24 (Tex. App.––Dallas

1991, no writ) (timely filing motion to contest recognition of foreign judgment

under Uniform Enforcement of Foreign Judgments Act precluded restricted

appeal).




                                          3
                    B. Concerning Postjudgment Motions

      A trial court retains jurisdiction over a case for a minimum of thirty days

after signing a final judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v.

Smith S. Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000). The period of plenary

power may be extended, however, by timely filing an appropriate postjudgment

motion. Lane Bank, 10 S.W.3d at 310. Thus, the filing of a motion for new trial;

a motion to modify, correct, or reform the judgment; or a request for findings of

fact and conclusions of law within the initial thirty-day period extends the trial

court’s jurisdiction over its judgment up to an additional seventy-five days and

extends the time period for filing a notice of appeal of a regular, i.e.,

nonaccelerated, appeal until ninety days after the judgment was signed. Id.; see

also Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1(a). Any motion filed within

thirty days of the trial court’s judgment that assails the judgment extends the

appellate timetable for a regular appeal.    See, e.g., Gomez v. Tex. Dep’t of

Criminal Justice, Institutional Div., 896 S.W.2d 176, 176–77 (Tex. 1995). Thus,

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. See, e.g., PopCap

Games, Inc. v. MumboJumbo, 350 S.W.3d 699, 717 (Tex. App.––Dallas 2011,

pet. denied); 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

postjudgment motion that extended the appellate timetable). And any timely-filed

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postjudgment motion that seeks a substantive change in an existing judgment

qualifies as a motion to modify under rule 329b(g) and will also extend the

appellate timetable. Lane Bank, 10 S.W.3d at 313.

                             III. PROCEDURAL FACTS

      Appellant, a company located in Poland, was served pursuant to the

Hague Convention; there are no allegations of improper service. A final default

judgment was signed against Appellant and in favor of Appellees on July 1, 2014.

On July 30, 2014 Appellant, represented by counsel, filed a special appearance

in the trial court. The special appearance prayed that “this Court sustain its

special appearance, that this entire proceeding be dismissed for want of

jurisdiction over [Appellant,] and that [Appellant] recovers its costs.” No hearing

was set on Appellant’s special appearance.

      Appellant mailed its notice of appeal to the Wise County district clerk on

October 13, 2014, and mailed a motion to extend the time to file its notice of

appeal to this court on October 13, 2014. Thus, Appellant did not file its notice of

appeal by July 31, 2014 (which would be thirty days from July 1, 2014) or by

September 29, 2014 (which would be ninety days from July 1, 2014). Although

Appellant filed its notice of appeal via the mailbox rule within fifteen days of the

ninety-day deadline (which would be October 14, 2014), and mailed a motion to




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extend the time to file the notice of appeal to this court,1 the motion for extension

of time did not state reasonable grounds supporting the need for an extension of

time so—prior to the assignment of this case to the undersigned panel—it was

denied, and the appeal was ordered to proceed as a restricted appeal.2




      1
        We note that the motion was not e-filed as required by rule 9.2(c)(1) of the
rules of appellate procedure. See Tex. R. App. P. 9.2(c)(1) (providing that
“[a]ttorneys in civil cases must electronically file documents”).
      2
        Appellant’s motion to extend the time to file its notice of appeal alleged
only that Appellant’s U.S. representative, Wladyslaw Jankowski, was busy
traveling worldwide to perform the duties of his job; that Appellant’s principal to
whom Jankowski reported, Steven Zhang, was also busy traveling worldwide
doing his job so that the two had difficulty communicating; and that this travel, as
well as the sale of Appellant in May 2013––over one year prior to entry of the
default judgment––prevented Jankowski from impressing on Appellant’s new
owners the need to appeal and from “obtaining timely authorization” to file the
appeal. The law is well-settled that the explanations provided in this case—the
need for additional time to communicate about the appeal, to assess the need for
an appeal, and to decide whether to appeal—do not constitute a reasonable
explanation that will support the granting of an extension of time to file a notice of
appeal. See, e.g., Amegy Bank of Tex., N.A. v. Titan Servs., LLC, No. 02-09-
00420-CV, 2010 WL 87095, at *1–2 (Tex. App.––Fort Worth 2010, no pet.)
(mem. op.) (holding an appellant’s assertion that he needed additional time to
evaluate the merits of the appeal and the likelihood of success did not constitute
a reasonable explanation); Zhao v. Lone Star Engine Installation Ctr., Inc., No.
05-09-01055-CV, 2009 WL 3177578, at *1–2 (Tex. App.––Dallas 2009, pet.
denied) (mem. op.) (holding that postponing decision on whether to appeal until
after motion for new trial hearing did not constitute reasonable explanation), cert.
denied, 562 U.S. 1004 (2010); Treimee Corp. v. Jimenez, No. 01-99-00814-CV,
2002 WL 123579, at *2 (Tex. App.––Houston [1st Dist.] 2002, pet. denied) (not
designated for publication) (holding that busyness and travel schedule of sole
shareholder of appellant did not provide reasonable explanation for untimely
notice of appeal).

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                                   IV. ANALYSIS

      The fourth restricted-appeal element is at issue here.3 Appellees assert

that we lack jurisdiction over this restricted appeal because Appellant timely filed

a postjudgment motion––its special appearance.

      Appellant’s special appearance is, literally, a postjudgment motion in that it

was filed after the default judgment. Appellant’s special appearance asserts that

the trial court lacks personal jurisdiction over Appellant and requests the trial

court to enter an order dismissing Appellees’ lawsuit and awarding costs to

Appellant. Thus, Appellant’s special appearance implicitly requests that the trial

court vacate the default judgment. Compare In re Brookshire Groc. Co., 250

S.W.3d 66, 73 (Tex. 2008) (orig. proceeding) (recognizing “fundamental nature of

a new trial motion” is to seek “not to reform, but to vacate the court’s judgment”),

and Gomez, 896 S.W.2d at 176–77 (holding that document filed by pro se litigant

titled “bill of review” assailed the trial court’s judgment and extended the

appellate timetable), with Aviation Composite Techs., Inc. v. CLB Corp., 131

S.W.3d 181, 185–86 (Tex. App.––Fort Worth 2004, no pet.) (holding that rule

306a motion did not seek to vacate trial court judgment, was not a postjudgment



      3
        The fifth element––error on the face of the record––is addressed by
Appellant in its brief, but because we hold that Appellant’s timely filing of a
postjudgment special appearance precludes its restricted appeal and that we
lack jurisdiction over this appeal, we need not address whether error is apparent
on the face of the record. See Tex. R. App. P. 47.1 (requiring appellate court to
address only issues necessary to disposition of an appeal).

                                         7
motion that would extend the appellate timetable, and did not preclude restricted

appeal).

      Under rule of civil procedure 329(e), as well as established case law,

Appellant’s special appearance, which was filed within thirty days of the default

judgment, constituted a postjudgment motion that extended the appellate

timetable.4 See Tex. R. Civ. P. 329b(e); Lane Bank, 10 S.W.3d at 310; Gomez,

896 S.W.2d at 176–77. Because Appellant timely filed a postjudgment motion

that extended the appellate timetable, it is not entitled to pursue a restricted

appeal. See, e.g., Wolf, 276 S.W.3d at 25; Estate of Head, 165 S.W.3d at 902–

03; S.P. Dorman Exploration Co., 71 S.W.3d at 470; Lab. Corp. of Am., 16

S.W.3d at 528; Thomas, 3 S.W.3d at 666–67; Moncrief, 805 S.W.2d at 23–24.

Accordingly, we lack jurisdiction over this attempted restricted appeal. See Tex.

R. App. P. 30; Clopton, 66 S.W.3d at 517; Franklin v. Wilcox, 53 S.W.3d 739,

741 (Tex. App.––Fort Worth 2001, no pet.).




      4
        Appellant’s motion to extend the time to file its notice of appeal likewise
treats the special appearance as a postjudgment motion extending the appellate
timetable.

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                                V. CONCLUSION

     Having determined that we lack jurisdiction over this appeal, we dismiss it.



                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: July 9, 2015




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