Christopher Hamlett v. Janice Hamlett and Office of the Attorney General ( 2006 )

Opinion issued February 2, 2006

  In The  

Court of Appeals

For The  

First District of Texas

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NO. 01–04–01097–CV  

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  CHRISTOPHER HAMLETT, Appellant

V.

JANICE HAMLETT AND ATTORNEY GENERAL OF TEXAS, Appellees

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On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 2004-011856

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MEMORANDUM OPINION

          Appellant, Christopher Hamlett, through attempted conventional or restricted appeal, seeks to reverse a trial court order denying his petition for bill of review. In the alternative, Christopher requests that we consider his brief a petition for writ of mandamus. Christopher asserts the following issues: (1) whether our court has jurisdiction to consider the appeal, (2) whether the trial court erred in denying the bill of review on the ground of lack of diligence, and (3) whether the trial court erred in not entering findings of fact and conclusions of law.

          We dismiss the matter because Christopher has not established that we have jurisdiction to consider the matter as a conventional appeal, restricted appeal, or as a petition for writ of mandamus.

Factual Background

          On April 3, 1990, Janice Hamlett gave birth to a son, D.H. Janice sought and received financial support for her son from the State of Texas. The State, through the Attorney General of Texas, brought a suit affecting the parent-child relationship, cause number 91-28323, in the 245th District Court of Harris County, against Christopher. Christopher approved an order entered by the district court, adjudicating him the father of D.H., appointing Christopher as D.H.’s possessory conservator with visitation rights, and ordering Christopher to pay Janice $110 per month child support for D.H. The trial court did not dissolve Janice’s and Christopher’s marital relationship. The district court signed the order on November 11, 1991.

          More than 12 years later, when Christopher decided to divorce Janice, upon advice of counsel, Christopher procured a DNA test. The DNA report excluded Christopher as D.H.’s biological father.

          In March 2004, Christopher filed his original petition for bill of review, cause number 2004-11856, in the 245th District Court, seeking to have the 1991 order set aside. The Attorney General of Texas answered asserting, among other things, the statute of limitations.

          On June 2, 2004, the Associate Judge of the 245th District Court heard Christopher’s original petition for bill of review, and denied it based on the four-year statute of limitations. On June 4, 2004, Christopher filed his notice of appeal of the Associate Judge’s report. Inexplicably, on June 22, 2004, before the appeal was heard, the Honorable Lisa Millard, Judge of the 310th District Court, signed an order denying the petition for bill of review. The order bore the correct style, including references to the court as the 245th and the cause number as 2004-11856. The order also referenced the June 2, 2004 hearing, including the parties’ appearances.

          According to Christopher’s brief, on July 16, 2004, the Honorable Annette Galik, Presiding Judge of the 245th District Court, heard Christopher’s appeal, affirmed the Associate Judge’s ruling, and dismissed Christopher’s bill of review. The clerk’s record contains no order documenting Judge Galik’s ruling. Christopher has not sought to supplement the record to include such an order, and, in his brief, Christopher concedes that the June 22, 2004 order is the final order dismissing his bill of review.

          On August 5, 2004, Christopher filed a request for findings of fact and conclusions of law, followed on August 16, 2004 by a notice of past due findings of fact and conclusions of law. On September 16, 2004, Christopher filed a notice of appeal, stating his desire to appeal “the final judgment in this cause rendered on the 16th day of July, 2004.”

Jurisdiction

          In issue one, Christopher asserts that this court has jurisdiction to consider this appeal.

Conventional Appeal Jurisdiction  

          Christopher contends that the timetable for filing his notice of appeal runs from July 16, 2004, the date Judge Galik heard Christopher’s appeal of the Associate Judge’s June 2, 2004 ruling denying Christopher’s bill of review. Christopher cites Texas Rule of Appellate Procedure 33.1(a)(2)(A) as authority. This rule provides: “(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: . . . (2) the trial court: (A) ruled on the request, objection, or motion, and the complaining party objected to the refusal.” This rule relates to preservation of error and not to jurisdiction. Therefore, it does not constitute authority that confers jurisdiction on this Court to consider Judge Galik’s July 16th, non-memorialized ruling instead of the only memorialized ruling in the record, Judge Millard’s June 22nd order.

          Christopher maintains that Texas Family Code, section 201.015 mandates a de novo hearing on an appeal from a decision of an associate judge, and that Judge Millard’s June 22, 2004 signature of the order denying the bill of review cut off his right to a de novo hearing before Judge Galik. Thus, Christopher contends that the appellate timetables should begin to run from July 16, 2004, the date Judge Galik apparently heard the appeal, denied Christopher’s bill of review, but did not memorialize her ruling in writing. Judge Millard’s June 22, 2004 order did not cut off Christopher’s right to a de novo hearing of his appeal of the associate judge’s report, which hearing he admittedly received on July 16th. The absence of an order documenting Judge Galik’s July 16th ruling denying Christopher’s bill of review, however, deprived Christopher of the ability to use July 16 as the date from which the appellate timetables run for notice of appeal purposes. See Tex. R. App. P. 26.1 (“The notice of appeal must be filed within 30 days after the judgment is signed . . . ”) (emphasis added).

          Thus, the appellate timetable started from Judge Millard’s signing of the order denying Christopher’s bill of review on June 22, 2004. Christopher filed no postjudment motions relative to this order. Therefore, his notice of appeal was due to be filed within 30 days (by July 22, 2004). Tex. R. App. P. 26.1. Christopher did not file his notice of appeal until September 16, 2004, outside the rule 26.1 deadline and outside the 15-day grace period. See Tex. R. App. P. 26.3. Accordingly, we are without jurisdiction to consider this matter by way of conventional appeal.

Restricted Appeal or Mandamus

          In the alternative, Christopher contends that using the June 22, 2004 date as the starting point for the appellate timetable, we should consider this appeal as a restricted appeal or a petition for writ of mandamus.

          A party pursuing a restricted appeal must satisfy four elements: (1) notice of the restricted appeal must be filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment complained of and did not file a timely postjudgment motion or request for findings of fact and conclusions of law; and (4) error must be apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Christopher conclusorily cites the rules of appellate procedure pertaining to restricted appeals, Texas Rules of Appellate Procedure 26.1(c) and 30, but makes no showing in his brief that he meets the four restricted appeal elements to qualify for restricted appeal jurisdiction. Neither does Christopher develop an argument for considering the June 22nd order by petition for writ of mandamus. Christopher has waived these contentions. See Tex. R. App. P. 38.1(h); Bradt v. West, 892 S.W.2d 56, 69 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“authorities alone are not sufficient to comprise an ‘argument’ that suffices . . .” under the rules of appellate procedure).

Conclusion  

          We dismiss the appeal for want of jurisdiction.

                                                             Laura Carter Higley

                                                             Justice

Panel consists of Justices Taft, Higley, and Bland.