Steven J. Steele v. Raquel J. Steele ( 2009 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-07-00011-CV

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Steven J. Steele, Appellant

v.

Raquel J. Steele, Appellee

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FROM THE DISTRICT COURT OF CALDWELL COUNTY, 207TH JUDICIAL DISTRICT

NO. 06-D-070, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING

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O R D E R  

On May 21, 2007, this Court received appellant Steven J. Steele's motion for rehearing in the above cause, which was dismissed for want of jurisdiction based on his failure to file a notice of appeal within thirty days after the judgment was signed. See Tex. R. App. P. 26.1. Along with his motion for rehearing, appellant seeks leave to amend his notice of appeal, which was initially filed January 9, 2007, in order to allow him to proceed with a restricted appeal from the trial court's judgment of October 12, 2006. See Tex. R. App. P. 30.

A restricted appeal is available for the limited purpose of providing a non-participating party an opportunity to correct an erroneous judgment. Clopton v. Pak, 66 S.W.3d 513, 516 (Tex. App.--Fort Worth 2001, pet. denied). A restricted appeal is available if the appellant: (1) filed his notice of appeal within six months of the district court's order; (2) was a party to the underlying suit; and (3) did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law. See Tex. R. App. P. 26.1(c), 30; see also Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

Because appellant has met the requirements for filing a restricted appeal, we grant his motion to amend his notice of appeal and his motion for rehearing asking that this be treated as a restricted appeal. We withdraw our opinion and judgment dated May 4, 2007, and reinstate this proceeding on the docket of this Court.

It is so ordered February 25, 2009.

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson