                                 MEMORANDUM OPINION
                                        No. 04-11-00884-CV

                            ROSILLO CREEK APARTMENTS, LLC,
                                       Appellant

                                                  v.

                             Kristi Ann AUSTIN and Michael Gonzales,
                                            Appellees

                     From the 150th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-CI-07296
                           Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 18, 2012

REVERSED AND REMANDED

           This is a restricted appeal of a default judgment against Rosillo Creek Apartments, LLC.

Rosillo Creek Apartments contends the trial court erred in granting a no-answer default judgment

when an answer was on file. Rosillo Creek Apartments further contends that it did not file any

post-judgment motion that would preclude it from obtaining relief in a restricted appeal. We

reverse the trial court’s judgment and remand the cause for a new trial.
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                                  PROCEDURAL BACKGROUND

       Rosillo Creek Apartments’s original answer was mailed for filing on July 15, 2011, and

was file-stamped at 2:28 p.m. on July 18, 2011. The plaintiffs, Kristi Ann Austin and Michael

Gonzales, filed a motion for default judgment at 4:10 p.m. on July 18, 2011. The trial court

signed an order granting the motion for default judgment on July 18, 2011. The order states,

“Defendant, ROSILLO CREEK APARTMENTS, LLC, although duly cited to appear by filing

an answer herein, failed to file an answer within the time allowed by law.”

       On August 9, 2011, Rosillo Creek Apartments filed a motion to substitute counsel, which

was granted by order entered the same day.         Rosillo Creek Apartments filed its notice of

restricted appeal on December 8, 2011.

                                           DISCUSSION

       To prevail on a restricted appeal, Rosillo Creek Apartments must establish four elements:

       (1) it filed notice of the restricted appeal within six months after the judgment was
       signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the
       hearing that resulted in the judgment complained of and did not timely file any
       postjudgment motions or requests for findings of fact and conclusions of law; and
       (4) error is apparent on the face of the record.

Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see also TEX. R. APP. P.

26.1(c), 30. Rosillo Creek Apartments satisfied the first two requirements because its notice of

restricted appeal was timely filed and it was the defendant in the underlying lawsuit.

       The appellees contend Rosillo Creek Apartments failed to satisfy the third requirement

because it timely filed a motion to substitute counsel. We disagree. We construe the term

“postjudgment motion” as used in Texas Rule of Appellate Procedure 30 as “one that, if granted,

would result in a substantive change in the judgment as entered, or extends the time for

perfecting the appeal.” Hollis v. Hollis, No. 12-09-00402-CV, 2010 WL 3440330, at *2 (Tex.



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                                                                                  04-11-00884-CV


App.—Tyler Sept. 1, 2010, no pet.) (mem. op.); see TEX. R. APP. P. 30. In this case, the motion

to substitute counsel filed by Rosillo Creek Apartments would not result in a substantive change

in the trial court’s judgment nor extend the time for perfecting appeal; therefore, Rosillo Creek

Apartments did not timely file a postjudgment motion for purposes of Rule 30. See Hollis, 2010

WL 3440330, at *2; see also Landmark Org., L.P. v. Sunbelt Air Conditioning & Refrigeration

Serv., Inc., No. 13-08-00676-CV, 2010 WL 2784032, at *1–2 (Tex. App.—Corpus Christi July

15, 2010, no pet.) (mem. op.) (granting relief in restricted appeal despite defendant’s filing of

postjudgment motion to substitute counsel).

       With regard to error being apparent on the face of the record, a no-answer “default

judgment may not be rendered after the defendant has filed an answer.” Davis v. Jefferies, 764

S.W.2d 559, 560 (Tex. 1989) (per curiam). This holds true even if the answer was not filed on or

before the answer date as long as the answer was filed before the default judgment was signed.

See id. (noting that the default judgment was improper even though the answer was not filed on

or before answer date, but was filed two hours and twenty minutes before the default judgment

was signed, and even though the trial judge was unaware that the answer was filed); see also

Alvarez v. Kirk, No. 04-04-00031-CV, 2004 WL 2480141, at *1 (Tex. App.—San Antonio Nov.

4, 2004, no pet.) (mem. op.) (“If the defendant files an answer after the deadline to answer but

before the trial court considers a motion for default judgment, the court cannot render a default

judgment.”) In this case, the face of the record shows that Rosillo Creek Apartments’s answer

was on file before the trial court signed the order granting the appellees’ motion for default




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judgment. Therefore, the trial court’s rendering of the default judgment was erroneous, and such

error is apparent on the face of the record. 1

                                                 CONCLUSION

        The trial court’s judgment is reversed, and the cause is remanded to the trial court for a

new trial.

                                                             Rebecca Simmons, Justice




1
 We note Rosillo Creek Apartments also argues its answer was filed on or before the answer date based on its
mailing in accordance with Texas Rule of Civil Procedure 5; however, we do not address this issue because it is not
necessary to the final disposition of this appeal. See TEX. R. APP. P. 47.1.

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