Watel, Gwendolyn Jeannette v. Dunmann Realty, LLC

• Court: Court of Appeals of Texas
• Decided: November 8, 2012
• Docket: 05-12-00938-CV
• Status: Published

Opinion

l)ISMISS; Opinion filed November 8, 2012

In The (tiurt uf ppra1 ift1i 1iitrirt nf Lcxa at Ja11a No. 05-12-00938-CV

GWENDOLYN WATEL, Appellant

V.

DUMANN REALTY, LLC, Appellee

On Appeal from the 192nd JLIdicial District CoLirt Dallas County, Texas Trial Court Cause No. DC-I 1-12649-K

MEMORANDUM OPINION l3efore Chief Justice Wright and Justices Francis and Lang-Miers Opinion By Chief Justice Wright

By letter dated August 2. 2012, the Court questioned its jurisdiction over the appeal.

Specifically, the notice of appeal appeared to be untimely. The Court requested that appellant file a

jurisdictional brief and gave appellee an opportunity to respond. Appellant filed ajurisdictional brief

and appellee filed a response.

The filing of a foreign judgment is in the nature of both an original petition and a final

I udgment. See Moncrief v. Harvey, 805 S. W.2d 20, 23 (Tex. App.—Dallas 1 991, no writ); Counsel

Fin. Servs., L.L.C. v. David McQuadeLeibowitz, P.C. 311 S. W.3d 45. 50 (Tex. App.—San Antonio

201 0, pet. denied). The appellate timetable starts from the date on which a foreign judgment creditor

files the foreignjudgment in a Texas court. Moncrief 805 S.W.2d at 24. A motion for new trial filed

within thirty days oithe filing of a foreignjudgment extends the appellate timetable. See Moncrie/ 805 S. \‘V.2d at 25. \kithout a timely filed notice of appeal. this Court lacks jurisdiction. cce T i:x. R. Ai-i.

P. 25.1(b).

Appellee filed the foreign judgment in the trial court on September29. 2011. Appellant timely

flied a motion br new trial on October 12. 2011. Thus, the notice of appeal was due on December 28,

2011, ninety days after the date the judgment was filed. See Tix. R. A1P. P. 26.1 (a)( 1): Moncrief 805

S.W.2d at 25.

In her jurisdictional hriel appellant applies the deadlines for post—judgment motions set forth

in rule 329b to the date the judgment was signed in the New York court. Sec Tix. R. Civ. P. 329b.

Using this analysis, appellant contends she never had an opportunity to contest the foreignj udgrnent

because the deadlines to do so had expired before appellee filed the foreign judgment in the Texas

court. Her analysis is incorrect. The deadlines for filing post-judgment motions set forth in rule 329b

applies only to Texas judgments. The judgment at issue in this case did not become a final judgment

in Texas until appellee filed it in a Texas court on September29, 2011. It is that date that triggered the

deadlines for post-judgment motions set forth in rule 329b and the deadline to file the notice olappeal.

See 4ioncrief, 805 S.W.2d at 24-25.

Appellant’s notice of appeal was due on December 28, 2011, ninety days after the foreign

judgment was filed. See Tux. R. App. P. 26.1(a). Appellant filed her notice of appeal on June 20,2012,

more than five months past the deadline. Accordingly, we dismiss the appeal for want ofjurisdiction.

See TEx. R. App. P.42.3(a).

CAROL\N VvRIGH F CHILI JUSTkE

120938F.P05 (!iitirt uf AppraIi Fift1! Jitrirt nf cxzui at Ja11a

JUDGMENT GWENDOLYN WATEL, Appellant Appeal from the 192nd Judicial District Court oF Dallas County. Texas. (Tr.Ct.No. DC-il- No. 05-12-00938-CV V. 12649-K). Opinion delivered by Chief Justice Wright. I)UMANN REALTY. LLC. Appellee J u St CC S Franc i s and Lang Mi e rs. -

participating.

Based on the Court’s opinion of this date, the appeal is DiSMISSED.

It is ORDERED that appellee, Dumann Realty, LLC, recover its costs of the appeal from appellant, Gwendolyn Watel.

Judgment entered November 8.2012.

CAROLYNWRIGT-I F CHIEFJUS FICE