COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00330-CV 

AERO AT SP. Z.O.O. APPELLANT

V.

DENNIS GARTMAN AND JERRY K. 

BAKER

APPELLEES 

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FROM THE 271ST DISTRICT COURT OF WISE COUNTY

TRIAL COURT NO. CV13-01-081

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OPINION

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I. INTRODUCTION

This is an attempted restricted appeal. The sole issue we address is 

whether the special appearance filed by Appellant Aero at Sp. z.o.o. within thirty 

days after the trial court signed a default judgment against Appellant and in favor 

of Appellees Dennis Gartman and Jerry K. Baker constitutes a timely-filed 

postjudgment motion that precludes Appellant’s pursuit of a restricted appeal 
2

under Texas Rule of Appellate Procedure 30. See Tex. R. App. P. 30. Because 

we hold that the special appearance filed here is such a postjudgment motion, 

we will dismiss this restricted appeal for want of jurisdiction.

II. THE LAW 

A. Concerning Restricted Appeals

A restricted appeal is a direct attack on the trial court’s judgment. See, 

e.g., Gen. Elec. Co. v. Falcon Ridge Apts., J.V., 811 S.W.2d 942, 943 (Tex.

1991); Rone Eng’g Serv., Ltd. v. Culberson, 317 S.W.3d 506, 508 (Tex. App.––

Dallas 2010, no pet.). Rule 30 of the Texas Rules of Appellate Procedure 

provides:

A party who did not participate—either in person or through 

counsel—in the hearing that resulted in the judgment complained of 

and who did not timely file a postjudgment motion or request for 

findings of fact and conclusions of law, or a notice of appeal within 

the time permitted by Rule 26.1(a), may file a notice of appeal within 

the time permitted by Rule 26.1(c).

Tex. R. App. P. 30. Thus, to directly attack a judgment by restricted appeal, (1) 

the appeal must be brought within six months after the trial court signed the 

judgment; (2) by a party to the suit; (3) who did not participate in the hearing that 

resulted in the judgment complained of; (4) who did not timely file a postjudgment 

motion, a request for findings of fact and conclusions of law, or a notice of 

appeal; and (5) the complained-of error that shows the invalidity of the judgment 

is apparent on the face of the record. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 51.013 (West 2015); Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s 
3

Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Norman Commc’s v. Tex. Eastman 

Co., 955 S.W.2d 269, 270 (Tex. 1997). These requirements are jurisdictional 

and will preclude a party’s right to seek relief by way of a restricted appeal if they 

are not met. Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001, 

pet. denied). Because the requirements are jurisdictional, if a party timely files a 

postjudgment motion, a restricted appeal is not available. See Tex. R. App. P. 

30; Wolf v. Andreas, 276 S.W.3d 23, 25 (Tex. App.––El Paso 2008, pet. 

withdrawn); see also In re Estate of Head, 165 S.W.3d 897, 902–03 (Tex. App.––

Texarkana 2005, no pet.) (timely filing postjudgment motion to reconsider 

summary judgment precluded restricted appeal); S.P. Dorman Exploration Co. v. 

Mitchell Energy Co., 71 S.W.3d 469, 470 (Tex. App.—Waco 2002, no pet.) 

(timely filing motion for new trial precluded restricted appeal); Lab. Corp. of Am.

v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex. App.––Dallas 2000, no 

pet.) (timely filing motion to set aside default judgment precluded restricted 

appeal); Thomas v. Tex. Dep’t of Criminal Justice, 3 S.W.3d 665, 666–67 (Tex. 

App.––Fort Worth 1999, no pet.) (timely filing motion to reinstate precluded 

restricted appeal); Moncrief v. Harvey, 805 S.W.2d 20, 23–24 (Tex. App.––Dallas 

1991, no writ) (timely filing motion to contest recognition of foreign judgment 

under Uniform Enforcement of Foreign Judgments Act precluded restricted 

appeal).
4

B. Concerning Postjudgment Motions

A trial court retains jurisdiction over a case for a minimum of thirty days 

after signing a final judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. 

Smith S. Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000). The period of plenary 

power may be extended, however, by timely filing an appropriate postjudgment 

motion. Lane Bank, 10 S.W.3d at 310. Thus, the filing of a motion for new trial;

a motion to modify, correct, or reform the judgment; or a request for findings of 

fact and conclusions of law within the initial thirty-day period extends the trial 

court’s jurisdiction over its judgment up to an additional seventy-five days and 

extends the time period for filing a notice of appeal of a regular, i.e., 

nonaccelerated, appeal until ninety days after the judgment was signed. Id.; see 

also Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1(a). Any motion filed within 

thirty days of the trial court’s judgment that assails the judgment extends the 

appellate timetable for a regular appeal. See, e.g., Gomez v. Tex. Dep’t of 

Criminal Justice, Institutional Div., 896 S.W.2d 176, 176–77 (Tex. 1995). Thus, 

any timely-filed motion seeking to vacate the trial court’s judgment, even a 

motion asserting meritless grounds for vacating the judgment, constitutes a 

motion for new trial that will extend the appellate timetable. See, e.g., PopCap 

Games, Inc. v. MumboJumbo, 350 S.W.3d 699, 717 (Tex. App.––Dallas 2011, 

pet. denied); see also Taylor v. Trans-Cont’l Props., Ltd., 739 S.W.2d 873, 876 

(Tex. App.—Tyler 1987, no writ) (construing “Demand for Removal” as 

postjudgment motion that extended the appellate timetable). And any timely-filed
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postjudgment motion that seeks a substantive change in an existing judgment 

qualifies as a motion to modify under rule 329b(g) and will also extend the 

appellate timetable. Lane Bank, 10 S.W.3d at 313. 

III. PROCEDURAL FACTS

Appellant, a company located in Poland, was served pursuant to the 

Hague Convention; there are no allegations of improper service. A final default 

judgment was signed against Appellant and in favor of Appellees on July 1, 2014. 

On July 30, 2014 Appellant, represented by counsel, filed a special appearance 

in the trial court. The special appearance prayed that “this Court sustain its 

special appearance, that this entire proceeding be dismissed for want of 

jurisdiction over [Appellant,] and that [Appellant] recovers its costs.” No hearing 

was set on Appellant’s special appearance.

Appellant mailed its notice of appeal to the Wise County district clerk on 

October 13, 2014, and mailed a motion to extend the time to file its notice of 

appeal to this court on October 13, 2014. Thus, Appellant did not file its notice of 

appeal by July 31, 2014 (which would be thirty days from July 1, 2014) or by 

September 29, 2014 (which would be ninety days from July 1, 2014). Although 

Appellant filed its notice of appeal via the mailbox rule within fifteen days of the 

ninety-day deadline (which would be October 14, 2014), and mailed a motion to 
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extend the time to file the notice of appeal to this court,

1

the motion for extension 

of time did not state reasonable grounds supporting the need for an extension of 

time so—prior to the assignment of this case to the undersigned panel—it was 

denied, and the appeal was ordered to proceed as a restricted appeal.

2

 

 

1We note that the motion was not e-filed as required by rule 9.2(c)(1) of the 

rules of appellate procedure. See Tex. R. App. P. 9.2(c)(1) (providing that 

“[a]ttorneys in civil cases must electronically file documents”).

2Appellant’s motion to extend the time to file its notice of appeal alleged

only that Appellant’s U.S. representative, Wladyslaw Jankowski, was busy 

traveling worldwide to perform the duties of his job; that Appellant’s principal to 

whom Jankowski reported, Steven Zhang, was also busy traveling worldwide 

doing his job so that the two had difficulty communicating; and that this travel, as 

well as the sale of Appellant in May 2013––over one year prior to entry of the 

default judgment––prevented Jankowski from impressing on Appellant’s new 

owners the need to appeal and from “obtaining timely authorization” to file the 

appeal. The law is well-settled that the explanations provided in this case—the 

need for additional time to communicate about the appeal, to assess the need for 

an appeal, and to decide whether to appeal—do not constitute a reasonable 

explanation that will support the granting of an extension of time to file a notice of 

appeal. See, e.g., Amegy Bank of Tex., N.A. v. Titan Servs., LLC, No. 02-09-

00420-CV, 2010 WL 87095, at *1–2 (Tex. App.––Fort Worth 2010, no pet.) 

(mem. op.) (holding an appellant’s assertion that he needed additional time to 

evaluate the merits of the appeal and the likelihood of success did not constitute 

a reasonable explanation); Zhao v. Lone Star Engine Installation Ctr., Inc., No. 

05-09-01055-CV, 2009 WL 3177578, at *1–2 (Tex. App.––Dallas 2009, pet. 

denied) (mem. op.) (holding that postponing decision on whether to appeal until 

after motion for new trial hearing did not constitute reasonable explanation), cert. 

denied, 562 U.S. 1004 (2010); Treimee Corp. v. Jimenez, No. 01-99-00814-CV,

2002 WL 123579, at *2 (Tex. App.––Houston [1st Dist.] 2002, pet. denied) (not 

designated for publication) (holding that busyness and travel schedule of sole 

shareholder of appellant did not provide reasonable explanation for untimely 

notice of appeal). 
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IV. ANALYSIS

The fourth restricted-appeal element is at issue here.3 Appellees assert 

that we lack jurisdiction over this restricted appeal because Appellant timely filed 

a postjudgment motion––its special appearance. 

Appellant’s special appearance is, literally, a postjudgment motion in that it 

was filed after the default judgment. Appellant’s special appearance asserts that 

the trial court lacks personal jurisdiction over Appellant and requests the trial 

court to enter an order dismissing Appellees’ lawsuit and awarding costs to 

Appellant. Thus, Appellant’s special appearance implicitly requests that the trial 

court vacate the default judgment. Compare In re Brookshire Groc. Co., 250 

S.W.3d 66, 73 (Tex. 2008) (orig. proceeding) (recognizing “fundamental nature of

a new trial motion” is to seek “not to reform, but to vacate the court’s judgment”),

and Gomez, 896 S.W.2d at 176–77 (holding that document filed by pro se litigant 

titled “bill of review” assailed the trial court’s judgment and extended the 

appellate timetable), with Aviation Composite Techs., Inc. v. CLB Corp., 131 

S.W.3d 181, 185–86 (Tex. App.––Fort Worth 2004, no pet.) (holding that rule 

306a motion did not seek to vacate trial court judgment, was not a postjudgment 

 

3

The fifth element––error on the face of the record––is addressed by 

Appellant in its brief, but because we hold that Appellant’s timely filing of a 

postjudgment special appearance precludes its restricted appeal and that we 

lack jurisdiction over this appeal, we need not address whether error is apparent 

on the face of the record. See Tex. R. App. P. 47.1 (requiring appellate court to 

address only issues necessary to disposition of an appeal).
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motion that would extend the appellate timetable, and did not preclude restricted 

appeal).

Under rule of civil procedure 329(e), as well as established case law, 

Appellant’s special appearance, which was filed within thirty days of the default 

judgment, constituted a postjudgment motion that extended the appellate 

timetable.4 See Tex. R. Civ. P. 329b(e); Lane Bank, 10 S.W.3d at 310; Gomez,

896 S.W.2d at 176–77. Because Appellant timely filed a postjudgment motion 

that extended the appellate timetable, it is not entitled to pursue a restricted 

appeal. See, e.g., Wolf, 276 S.W.3d at 25; Estate of Head, 165 S.W.3d at 902–

03; S.P. Dorman Exploration Co., 71 S.W.3d at 470; Lab. Corp. of Am., 16 

S.W.3d at 528; Thomas, 3 S.W.3d at 666–67; Moncrief, 805 S.W.2d at 23–24. 

Accordingly, we lack jurisdiction over this attempted restricted appeal. See Tex. 

R. App. P. 30; Clopton, 66 S.W.3d at 517; Franklin v. Wilcox, 53 S.W.3d 739, 

741 (Tex. App.––Fort Worth 2001, no pet.).

 

4Appellant’s motion to extend the time to file its notice of appeal likewise 

treats the special appearance as a postjudgment motion extending the appellate 

timetable. 
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V. CONCLUSION

Having determined that we lack jurisdiction over this appeal, we dismiss it.

/s/ Sue Walker

SUE WALKER

JUSTICE 

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: July 9, 2015