Bedrije Hajdari Seymour v. Floyd David Seymour

Dismissed and Memorandum Opinion filed February 10, 2009

Dismissed and Memorandum Opinion filed February 24, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00280-CV

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BEDRIJE HAJDARI SEYMOUR, Appellant

V.

FLOYD DAVID SEYMOUR, Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2005-73510

M E M O R A N D U M   O P I N I O N

In this restricted appeal, appellant Bedrije Hajdari Seymour challenges a final decree of divorce on the grounds that she did not sign the decree, the waiver of citation is defective, the motion to reinstate the case was unverified, and appellee Floyd David Seymour was granted relief for which he did not plead.  Because we conclude that Bedrije participated in the hearing resulting in the judgment, we lack jurisdiction over this restricted appeal and therefore dismiss her appeal.

I.  Background

Bedrije Hajdari Seymour (ABedrije@) and Floyd David Seymour (AFloyd@) were married in December 2001. After separating in 2003, Floyd filed an original petition for divorce in November 2005.  In his petition, Floyd alleged that their marriage had become insupportable, no children had been born to or adopted by them during their marriage, and that no community property (other than personal effects) had been accumulated during the course of the marriage.  In April 2006, Bedrije filed a waiver of citation, in which she (a) stated she had received a copy of Floyd=s petition for divorce, read it, and understood it; (b) entered her appearance in the case for all purposes and waived the issuance and service of citation; (c) agreed the case could be taken up and considered without further notice; and (d) waived the making of a record of testimony. 

On August 28, 2006, the case was dismissed for want of prosecution by the trial court.  Notwithstanding the dismissal order, the trial court heard this case on September 1, 2006.  On September 5, the parties filed an unverified agreed motion to reinstate the case on the trial court=s docket, which was granted by the trial court on September 18.  Also on that day, the trial court signed the final decree of divorce.  The decree, which indicates that the trial court heard the case on September 1, 2006, provides that Floyd appeared in person and Bedrije waived her appearance and Aagreed to the terms of this judgment to the extent permitted by law.@  In the decree, the trial court found, among other things, that:

$ Floyd and Bedrije had entered into a written agreement Aas contained in this decree by virtue of having approved this decree as to both form and substance;@

$ there were no children born or adopted during the marriage; and

$ Asignificant community property@ had been accumulated by Floyd and Bedrije.

The trial court awarded Floyd a truck; a residence located in Houston; foreign real property titled to Bedrije located in Pristina, Kosovo;^[1]     and reimbursement of $20,000 to be paid by Bedrije for Floyd=s contributions to her separate property.  Bedrije was awarded a car, a motorcycle, and an apartment home, also located in Pristina, Kosovo.  Floyd signed the divorce decree; Bedrije did not.  On March 19, 2007, Bedrije filed a notice of restricted appeal.

II.  Issues Presented

In four issues, Bedrije contends she is entitled to a new trial because her notice of restricted appeal was timely filed, she was a party to the lawsuit, she did not participate in the hearing resulting in the judgment, and error is apparent on the face of the record.  In a separate motion included with her appellate brief, Bedrije also seeks sanctions for Floyd=s failure to comply with this court=s mediation order.

III.  Analysis

A. Standard of Review

To prevail on a restricted appeal, an appellant must demonstrate the following: (1) the notice of restricted appeal was filed within six months of the date of the judgment or order; (2) she was a party to the suit; (3) she did not participate in the hearing that resulted in the judgment complained of and did not file a timely post‑judgment motion or request for findings of facts 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).  These requirements are jurisdictional and cut off a party=s right to seek relief by way of a restricted appeal if not met.  See Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.CFort Worth 2001, pet. denied).  The parties concede Bedrije meets the first two elements; thus we focus our analysis on whether Bedrije has established that (a) she did not participate in the hearing resulting in the judgment and (b) error is apparent on the face of the record.

B. Bedrije=s Participation

AThe nature and extent of participation precluding a restricted appeal in any particular case is a matter of degree because trial courts decide cases in a myriad of procedural settings.@  McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 129 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (citing Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996)).  For example, a party=s statement in a waiver of service that she entered her appearance for all purposes does not rise to the level of participation at trial.  Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.CFort Worth 2003, no pet.) (citing Texaco, Inc., 925 S.W.2d at 590).  Further, a party who waives citation and the making of a statement of facts and signed the judgment prior to entry has participated sufficiently to preclude her right to a restricted appeal, although a party who has signed a waiver of citation and a preliminary divorce agreement has not.  Compare Blakinship v. Blakinship, 572 S.W.2d 807, 808B09 (Tex. Civ. App.CHouston [14th Dist.] 1978, no writ) (waiver of citation and making of record and signing judgment precludes review by writ of error) with Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985) (signing waiver of citation and agreement incident to divorce not sufficient participation to preclude review via writ of error).  The facts of this case fall on the spectrum between those present in Blankinship, in which this court concluded that the appellant had participated in the proceedings below and was thus precluded from seeking relief through a restricted appeal, and the facts present in Stubbs, in which the Texas Supreme Court concluded that the appellant had not participated sufficiently to preclude review by restricted appeal.

Here, Bedrije signed a waiver of citation, in which she explicitly waived the making of a record and entered her appearance for all purposes.  This waiver alone, however, is not sufficient participation to preclude her from entitlement to a restricted appeal.  See Campsey, 111 S.W.3d at 771; see also Stubbs, 685 S.W.2d at 645.  As noted above, after this case was dismissed for want of prosecution, Bedrije and Floyd signed an agreed motion to reinstate.  Although this motion was unverified, it was signed by both parties, which is tantamount to a verified motion.  See Tex. R. Civ. P. 154(a); Fed. Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex. App.CHouston [14th Dist.] 1995, writ denied).  This motion provides that

[t]he parties have substantially agreed to the terms to be included in the Final Decree of Divorce. . . . [Floyd] appeared in court and a Final Decree of Divorce was proven up on September 1, 2006. . . .  BOTH [Floyd] and [Bedrije] request that the [trial court] enter [the order] reinstating the divorce action, reissue its findings previously issued at [the] hearing on September 1, 2006, and [] finalize the Decree of Divorce as proven up on September 1, 2006.

This motion was filed on September 5, 2006, after the hearing on this case was held.^[2]    

We conclude that the Anature and extent@ of Bedrije=s participation in the divorce proceedings are more similar to those present in Blankinship than those in Stubbs.  Although Bedrije did not sign the divorce decree, she signed an agreed motion to reinstate in which she requested that the trial court finalize the Adivorce decree@ proven up at the September 1, 2006 hearing.  The divorce decree indicates that the trial court heard the case on September 1, 2006.  By signing the motion to reinstate, Bedrije indicated her approval of the terms of the divorce decree, similar to the appellant in Blankinship, who signed the trial court=s judgment prior to its entry by the trial court.  Blankinship, 572 S.W.2d at 808.

Moreover, this case is distinguishable from Stubbs in several respects. First, unlike the appellant in Stubbs, Bedrije waived the making of a record.^[3]     Cf. Stubbs, 685 S.W.2d at 644 (noting that Ruth Stubbs Adid not waive the making of a statement of facts@). Further, the appellant in Stubbs signed an agreement incident to the divorce;^[4]     here, Bedrije filed a motion in which she requested that the trial court finalize the entire divorce decree proven up at the hearing.  We conclude that, based on the facts of this case, by signing the motion to reinstate and requesting that the trial court enter the decree, Bedrije signaled her acquiescence to the divorce decree itself.  Finally, because Bedrije filed the motion to reinstate after the hearing resulting in the judgment was held, she has essentially filed a postjudgment motion.  Filing a postjudgment motion vitiates a party=s right to a restricted appeal. See Tex. R. Civ. P. 30 (AA party who did not participate . . . in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion . . . may file a notice of appeal within the time permitted by Rule 26.1(c).@ (emphasis added)); see also Reyna v. Elizondo, No. 14-05-00622-CV, 2006 WL 1675380 (Tex. App.CHouston [14th Dist.] June 20, 2006, no pet.) (mem. op.).

In sum, Bedrije signed a waiver of citation, entering her appearance for all purposes.  She also waived the making of a reporter=s record.  Although she was not present at the hearing in which the divorce decree was proven up, she indicated her approval of it by signing an agreed motion to reinstate after the hearing was held and requesting entry of the very judgment of which she now complains.  Under these circumstances, we conclude that Bedrije participated in the hearing resulting in the divorce decree.  See Blakinship, 572 S.W.2d at 808.

IV.  Conclusion

Bedrije has not met the jurisdictional requirements for a restricted appeal because she participated in the hearing that resulted in the judgment.  Because we lack jurisdiction over this restricted appeal, we must dismiss it.  We therefore do not reach Bedrije=s other issues or her motion for sanctions.

/s/        Eva M. Guzman

Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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^[1]      A citizen of Kosovo was named to hold this property in trust for the benefit of Floyd.

^[2]      The divorce decree indicates that the trial court heard the case on September 1, 2006.

^[3]      Bedrije asserts that, because her mailing address is not included in the waiver of citation, error is apparent on the face of the record. Although we agree that this waiver does not comport with Texas Rule of Civil Procedure 119, we do not reach the issue of whether error is apparent on the face of the record because we conclude that Bedrije participated in the hearing resulting in the judgment.

^[4]      Id. (ABernald and Ruth Stubbs signed an agreement incident to divorce prepared by Bernald=s attorney.@).