# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

- 14

- 00786

- CV IN THE ESTATE OF LUELLA C. HARDIE , Deceased From the Probate Court No

. 2 , Bexar County, Texas Trial Court No. 2008

- PC

- 2790 Honorable Tom Rickhoff , Judge Presiding
PER CURIAM Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: March 25, 2015
DIS MISSED FOR LACK OF JURISDICTION Appellant Don C. Reser attempts to appeal from a final j udgment signed on April 14, 2014. The notice of appeal , however, was not filed until October 28, 2014 , well after the prescribed time limit for perfecting appeal. See T EX
. R. A PP
. P . 26.1. “[O] nce the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” See Verburgt v. Dorner , 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26); In re Estate of P adilla , 103 S.W.3d 563, 567 (Tex. App.

— San Antonio 2003, no pet.). Appellant claims, however, that the notice of appeal is timely because he did not receive notice of the final judgment until July 20, 2014. On December 3, 2014, appellee filed a Motion to Dismiss Appeal arguing that appellant cannot rely on Rule 306a(4) because he received notice of the judgment 97 days after it was signed,04

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- CV and the rule expressly provides that the time period for discovery of a final judgment cannot extend beyond 90 days. T EX
. R. C IV
. P . 306a(4); Levit v. Adams , 850 S.W.2d 469, 470 (Tex. 1993). After considering the motion to dismiss, as well as appellant’s response and appellee’s reply , we issued an order in which we agreed that appellant received notice of the signing of the final judgment outside of the 90

- day time period prescribed by Rule 306a(4), and that therefore appellant cannot rely on Rule 306a(4) to extend the time period for filing the notice of appeal. See T EX
. R. C IV
. P. 306a(4); Levit , 850 S.W.2d at 470. We then directed appellant to show cause in writing why t his appeal should not be dismissed for lack of jurisdiction; specifically , we ordered appellant to address whether this court has jurisdict ion to retain this appeal on our docket as a restricted appe al under Rule 30. See T EX
. R. A PP
. P . 30. To be successful in a restricted appeal, a notice of restricted appeal must be filed 1) within six months after the judgment is signed; 2) by a party to the lawsuit; 3) who did not participate in the hearing tha t resulted in the judgment complained of; 4) who did not file a timely post

- judgment motion or request for findings of fact and conclusions of law; and 5) error must be apparent on the face of the record. See id

. ; Norman Commc’ ns v. Tex. Eastman Co. , 955 S.W.2d 2 69, 270 (Tex. 1997) (per curiam)

. Appellant filed a response in which he “stipulates that he was present and represented by counsel” at the July 12, 2013 hearing which preceded the April 14, 2014 final judgment at issue. Not only was counsel prese nt, but during the hearing he “attempted to raise the issues outlined in his Response to Appellee’s Motion to Enter Judgment ” [on Appellee’s Motion for Traditional and No Evidence Summary Judgment]. Thus, appellant must c oncede that he participated in the hearing that resulted in the judgment complained of. Given his participation, we cannot conclude that he has met the requirements for a restricted appeal. See T EX
. R. A PP
. P . 30. Accordingly, appellant’s notice of appeal is untimely, and we must dismiss this appeal for want of jurisdiction.

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- CV

See T EX
. R. A PP
. P . 42.3(a) ; see also Clopton v. Pak , 66 S.W.3d 513, 515 (Tex. App.

— F ort Worth 2001, pet. denied) (stating requirements for restricted appeal “are jurisdictional”). Appellee’s moti on to dismiss appeal is hereby granted.

PER CURIAM

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