1 

No. 01-14-00870-CV

In the Court of Appeals 

For the First District of Texas 

Houston, Texas 

Elishah Sawyers; Pax Freight & Crate, Inc.; 

and Robin Sawyers, 

Appellants 

vs.

Mark Carter and Sally Carter, 

Appellees 

Appeal from the 506th Judicial District Court of 

Waller County, Texas 

Trial Court Cause No. 14-07-22604 

APPELLEES’ MOTION TO STRIKE APPELLANTS’ RESTRICTED 

NOTICE OF APPEAL 

Mr. Bruce C. Tough 

State Bar No. 20151500 

Tough Law Firm, PLLC 

819 Crossbridge Drive 

Spring, Texas 77373 

btough@toughlawfirm.net 

telephone: (281) 681-0808 

telecopier: (281) 281-0809 

Lead Counsel for Appellees Mark 

Carter and Sally Carter 

ACCEPTED

01-14-00870-cv

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/7/2015 2:09:11 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/7/2015 2:09:11 PM CHRISTOPHER A. PRINE Clerk
2

No. 01-14-00870-CV

In the Court of Appeals

For the First District of Texas 

Houston, Texas

Elishah Sawyers; Pax Freight & Crate, Inc.; 

and Robin Sawyers,

Appellants

vs.

Mark Carter and Sally Carter,

Appellees

Appeal from the 506th Judicial District Court of 

Waller County, Texas

Trial Court Cause No. 14-07-22604

APPELLEES’ MOTION TO STRIKE APPELLANTS’ RESTRICTED 

NOTICE OF APPEAL

TO THE HONORABLE FIRST COURT OF APPEALS:

NOW COME Appellees, Mark and Sally Carter, to file this motion to strike 

the restricted notice of appeal and, in support thereof, the Appellees would 

respectfully show the Court as follows:

1. Appellants filed a notice of appeal on October 27, 2014 and have now 

also filed a notice of restricted appeal on March 27, 2015. 
3

2. Texas Rules of Appellate Procedure 26.1(c) provide the requirements 

for a party to prevail in a restricted appeal: (1) it filed notice of the restricted 

appeal within six months after the final judgment was signed; (2) it was a party to 

the underlying litigation; (3) it did not participate in the underlying proceedings 

and did not timely file any post-judgment motions; and (4) error is apparent on the 

face of the record.

3. The deadline for the filing of the restricted notice of appeal was 

March 12, 2015, six months after the date on which the judgment was signed on 

September 12, 2014. Id. Appellants did not file their restricted notice of appeal 

until March 27, 2014. The six-month time limit is mandatory and jurisdictional. 

Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)1.

3. Furthermore, an ordinary appeal and restricted appeal may not be 

pursued simultaneously. Zepeda v. Giraud, 880 S.W.2d 833, 834 - 835 (Tex. App. 

San Antonio 1994) (An appeal by writ of error from a default judgment in a civil 

suit was dismissed for want of jurisdiction because appellant had previously 

perfected an ordinary appeal, which was dismissed by the court and not abandoned 

by appellant.)

 

1 This case concerned a writ of error proceeding filed in 1996 under the former Texas Rules of 

Appellate Procedure. “Writ of error” appeals have been replaced by “restricted” appeals under 

the current Texas Rules of Appellate Procedure. See Tex. R. App. P. 30.
4

3. For the foregoing reasons, appellees request that the Court strike the 

notice of restricted appeal and grant all other relief to which Appellees are entitled.

Respectfully submitted,

TOUGH LAW FIRM, PLLC

 /s/ Bruce C. Tough 

Bruce C. Tough

btough@toughlawfirm.net email

State Bar No. 20151500

819 Crossbridge Drive

Spring, Texas 77373

(281) 681-0808 telephone

(281) 681-0809 telecopy

Lead Counsel for Appellees

Mark Carter and Sally Carter

Certificate of Conference

On April 7, 2015, as required by Texas Rule of Appellate Procedure 

10.1(a)(5), I certify that I or my office conferred with Scott Rothenberg, attorney 

for Appellants, about the merits of this motion and he stated he opposes the 

motion.

/s/ Bruce C. Tough

Bruce C. Tough
5

Certificate of Service

I hereby certify that a true and correct copy of the foregoing document has 

been forwarded by e-filing and e-service to all lead counsel of record, on this 7

th

day of April, 2015, as follows:

Scott Rothenberg

LAW OFFICES OF SCOTT ROTHENBERG

2777 Allen Parkway, Suite 1000

Houston, Texas 77019-2165

(713) 667-0052 telecopier

scott@rothenberglaw.com email 

Counsel for Appellants

Elishah Sawyers; Pax Freight & 

Crate, Inc.; and Robin Sawyers

 /s/ Bruce C. Tough 

Bruce C. Tough