Pike-Grant v. Grant

Citation447 S.W.3d 884
Decision Date03 October 2014
Docket NumberNo. 13–0277.,13–0277.
PartiesDakota PIKE–GRANT, Petitioner, v. Jeffrey Alan GRANT, Respondent.
CourtSupreme Court of Texas

David B. Black, Attorney at Law, Vanderpool, Julie Michele Balovich, Texas RioGrande Legal Aid, Inc., Alpine, Robert W. Doggett, Texas RioGrande Legal Aid, Inc., Austin, TX, for Petitioner Dakota Pike–Grant.

Jacques Lawrence De La Mota, De La Mota & Company, Del Rio, TX, Jeffrey Alan Grant, for Respondent.

Jeffrey Alan Grant, pro se.

Opinion

PER CURIAM.

This is a restricted appeal from a trial court's divorce decree that contains two conflicting recitals. The Texas Rules of Appellate Procedure allow a party who did not participate in the hearing that resulted in the judgment to file a restricted appeal, which has a more lenient filing deadline than a traditional appeal. Tex.R.App. P. 30. Here, the first recital in the divorce decree indicates the hearing occurred in November 2011 and that the petitioner attended the hearing, which—if correct—would foreclose her restricted appeal. But another recital indicates the hearing occurred in September 2011, which would not foreclose her restricted appeal. Importantly, nothing in the record indicates the hearing took place in November 2011. And at least eight references in the record, including portions of the trial court's docket sheet and the reporter's record, conclusively confirm the hearing occurred in September 2011 and the petitioner did not participate. Accordingly, we reverse the court of appeals' judgment dismissing the restricted appeal for want of jurisdiction and remand the case to that court for further proceedings consistent with this opinion.

This case arises out of divorce proceedings between Dakota Snow Pike–Grant and Jeffrey Alan Grant. The couple had one child, born in December 2008. Grant filed for divorce in 2009, and the trial court issued temporary orders at a hearing in June of that year naming Pike–Grant and Grant temporary joint managing conservators. The matter lay dormant until February 2011, when Grant successfully moved to modify the June 2009 temporary orders to appoint him sole conservator of the child. Pike–Grant did not attend the hearing.

On August 29, 2011, the court coordinator mailed letters to the attorneys of record to notify the parties of a September 27 trial date. That same day, Pike–Grant's attorney moved to withdraw from the case, indicating he was no longer able to effectively communicate with Pike–Grant. The attorney informed the court coordinator that he had not had contact with Pike–Grant in over a year, but would forward a copy of the September 27 trial setting to her by regular and certified mail. Pike–Grant's attorney also indicated he would not be able to attend the trial due to another court setting. Thereafter, Grant filed a motion to participate in the September 27 hearing by telephone, which the trial court granted.

The reporter's record indicates that only Grant's attorney attended the September 27 trial in person. Grant appeared telephonically, but neither Pike–Grant nor her attorney appeared in any form. The court called Pike–Grant's attorney during the proceeding to ascertain whether Pike–Grant had notice of the hearing, but the attorney did not answer. Grant requested appointment as sole managing conservator of the child. After he proved up his request, the court advised: “I'm going to wait to hear from her lawyer's office to see if they can get in touch with her and determine if she's just not going to show up here. We don't have anything in the Court's file.... I need something official in my file before I can sign the divorce decree. It may happen today. It may take a couple of weeks to do.” The court's docket sheet indicates the telephonic conference occurred on September 27, 2011 and that Respondent's lawyer filed motion to w/draw—she is not present, but in NY. Her lawyer ... contacted & will attempt to reach & notify her re hearing & w/drawl ‘Prove Up’ done w/ husband.”

The court's docket sheet recorded no further activity until November 29, 2011, when the trial court signed a final divorce decree dated November 29, 2011. The first page of the divorce decree includes a handwritten notation that the court heard the case on November 29, the day it signed the decree. The typewritten text that follows indicates Petitioner, Jeffrey Alan Grant, appeared in person and through attorney of record ... and announced ready for trial. Respondent, Dakota Snow Pike Grant, appeared in person and through attorney of record ... and announced ready for trial.” The decree further recites that the court reporter recorded the testimony. However, the decree also recites that “the Final Hearing for Divorce” in the matter occurred on September 27, 2011. There was no reporter's record for any matter on November 29 and the docket sheet confirms that the only activity in the case that day was the trial court's signing of the divorce decree.

Pike–Grant filed for a restricted appeal, claiming she did not appear at the hearing that resulted in the divorce decree, and obtained temporary orders from the trial court pending the appeal. Those temporary orders confirmed that the hearing occurred “on September 27, 2011.” The court of appeals dismissed the restricted appeal, relying on the first page of the decree to establish that Pike–Grant and her attorney appeared at a hearing on November 29, 2011. 448 S.W.3d 63, 65.

When a party does not participate in person or through counsel in a hearing that results in a judgment, she may be eligible for a restricted appeal. TEX. R. APP. P. 30. To sustain a proper restricted appeal, the filing party must prove: (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she 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; and (4) error is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004). For over half a century, we have required courts to liberally construe the non-participation...

To continue reading

Request your trial
111 cases
  • Ex parte E.H.
    • United States
    • Texas Supreme Court
    • 15 Mayo 2020
    ...or requests for findings of fact and conclusions of law; and(4) error is apparent on the face of the record. Pike-Grant v. Grant , 447 S.W.3d 884, 886 (Tex. 2014) (per curiam).The fourth requirement derives from case law and is not included within the rule's requirements. See Gen. Elec. Co.......
  • Texpro Constr. Grp., LLC v. Davis
    • United States
    • Texas Court of Appeals
    • 19 Agosto 2015
    ...person or through counsel in a hearing that results in a judgment, it may be eligible for a restricted appeal. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). To sustain a proper restricted appeal, the appellant must prove: (1) it filed notice of the restricted appeal wit......
  • Ex parte J.E.
    • United States
    • Texas Court of Appeals
    • 9 Abril 2020
    ...or requests for findings of fact and conclusions of law; and (4) error is apparent from the fact of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam); Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see also Tex. Dep't of Pub. Safety v. Gamboa, No......
  • Ex parte E.C.
    • United States
    • Texas Court of Appeals
    • 24 Junio 2021
    ...and conclusions of law; and (4) error is apparent from the face of the record. TEX. R. APP. P. 26.1(c), 30; Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam); Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).B. Discussion DPS filed a notice of restricted appeal......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT