The court withdrew its previous opinion in this case, which dismissed the appeal for want of jurisdiction, and entered a new opinion affirming the trial court’s judgment denying Whitehead’s motion to vacate entry of a foreign judgment against him. The previous opinion held that Whitehead could not maintain a restricted appeal because he had participated in the hearing on the motion to vacate, despite not participating in the proceedings in Indiana that resulted in the underlying judgment. The new opinion holds that Whitehead’s lack of participation in the Indiana proceedings meets the relevant requirement to maintain a restricted appeal. The court affirmed the entry of the Indiana judgment, however, because there was no error by the Texas trial court. The certification of the Indiana judgment was accomplished by the stamped “certified copy” on the final page, meeting the authentication requirements of Texas Rule of Evidence 902.
Whitehead v. Bulldog Battery Corporation, No. 05-12-00449-CV (Memorandum Opinion on Rehearing)
The court dismissed for lack of jurisdiction a restricted appeal from the entry of a foreign judgment. Bulldog received a judgment against Whitehead in Indiana after failing to answer a request for admissions or to appear at trial. Bulldog filed the Indiana judgment in a Texas district court pursuant to the Uniform Enforcement of Foreign Judgments Act and Whitehead moved to vacate. The court held a hearing at which both parties were represented by counsel and denied Whitehead’s motion on February 7, 2012. Whitehead filed a notice of restricted Appeal on April 4, 2012. The court of appeals dismissed the appeal for lack of jurisdiction because Whitehead fully participated in the hearing on his motion to vacate in the Texas court and because he failed to file his notice of appeal within 30 days after the judgment was signed.
Whitehead v. Bulldog Battery Corporation, No. 05-12-00449-CV
UPDATE: The court has withdrawn this opinion on rehearing.
The court issued a memorandum opinion clarifying the appellate timetable after the filing of a foreign judgment in a Texas court. Appellee received a judgment in a New York court and filed it in the Texas trial court on September 29, 2011. Appellant filed a notice of appeal on June 20, 2012. The court questioned whether the notice of appeal was untimely. In her jurisdictional brief, appellant argued that the deadlines for post-judgment motions set forth in Tex. R. Civ. P. 329b run from the date the judgment was signed in the New York court, and thus contended that she never had an opportunity to contest the foreign judgment because the deadlines to do so had expired before appellee filed the foreign judgment in the Texas court.
The court held that Rule 329b applies only to Texas judgments. Under Tex. R. App. P. 26.1(a)(1), the ninety day deadline for the appellant to filed her notice of appeal ran from the date that the appellee filed the foreign judgment in the Texas court. Thus, she had filed her notice of appeal more than five months past the deadline, and the court dismissed the appeal for want of jurisdiction.
Watel v. Dunmann Realty, LLC, No. 05-12-00938-CV