Whitehead Vincent v. Bulldog Battery Corporation

• Court: Court of Appeals of Texas
• Decided: February 8, 2013
• Docket: 05-12-00449-CV
• Status: Published

Opinion

Dismissed and Opinion Filed this Sth day of February, 2013.

In The ttnirt øf ia1 Jiftt! Thtrirt øf ecas at 3att,u No. 05- 12-00449-CV

VINCENT WHITEITEAD, Appellant V BULLDOG BATTERY CORPORATION, Appellee

On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-04037-2011

OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion by Justice Lewis

This case involves a suit to enforce a foreign judgment. Vincent Whitehead appeals from

a district court judgment giving full faith and credit to an Indiana judgment filed in Texas

pursuant to the Uniform Enforcement of Foreign Judgments Act. We dismiss this appeal for

want of jurisdiction.

Background

In 2008, Bulldog Battery Corporation (“Bulldog”) filed suit against Vincent Whitehead

(“Whitehead”) and others in the Wabash Superior Court in Wabash County, Indiana. After

Whitehead was served with process and without the aid of counsel, Whitehead wrote a letter to

the Wabash Superior Court requesting the court dismiss the action against him due to a lack of

personal jurisdiction. The Indiana court filed the letter and declared Whitehead filed a “general denial” with the court, Bulldog filed a Request for Admissions from Whitehead which

Whitehead failed to answer. The Indiana court, claiming Whitehead failed to comply with

Indiana Trial Rule 36, deemed the unanswered Request for Admissions as admitted, The Indiana

trial court held a bench trial, at which Whitehead failed to appear, and found Whitehead liable to

Bulldog for damages, attorney fees, and prejudgment interest.

On September 22, 2011, Bulldog filed the Indiana judgment against Whitehead in a

district court in Collin County, Texas pursuant to the Uniform Enforcement of Foreign

Judgments Act (“UEFJA”). Whitehead then filed a Motion to Vacate Because of Improper Filing

and a Motion to Quash claiming the judgment was not entitled to full faith and credit in Texas

because it was not properly authenticated. The trial court held a hearing on January 6, 2012 at

which Bulldog and Whitehead were represented by counsel. After the hearing and allowing both

parties to submit letter briefs, the trial court denied Whitehead’s Motion to Vacate/Motion to

Quash on February 7, 2012. On April 4, 2012, Whitehead filed his Notice of Restricted Appeal

with the trial court, and, on April 6, 2012, filed his Motion to Extend Time to File Notice of

Restricted Appeal with this Court. We granted Whitehead’s motion to extend.

Analysis

To prevail on a restricted appeal, Whitehead must establish (1) he filed notice of the

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

underlying suit; (3) he did not participate in the hearing that resulted in the judgment complained

of and did not timely file any postjudgment motions or requests for findings of fact and

conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda ‘s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re Baby Girl S., 353 S.W.3d 589, 591 (Tex.

App.—Dallas 2011, no pet.). These requirements are jurisdictional and will cut off a party’s right

to seek relief by way of restricted appeal if they are not met. In re Baby Girl 5., 353 S.W.3d at

591. In this case, Whitehead is complaining about the Texas trial court’s order denying his -2- Motion to Vacate and Motion to Quash. Whitehead fully participated in the hearing that resulted

in the court’s denial of his Motion which disqualifies his entitlement to a restricted appeal. The

hearing in which Whitehead failed to participate was the hearing held in Indiana. Under these

circumstances, we conclude we lack jurisdiction over this restricted appeal. See Clopton v Pak,

66 S.W3d 513, 516 (Tex, App—Fort Worth 2001, pet. denied) (finding appellants participated

in the decisionmaking events that resulted in the dismissal order).

Even if we treat this restricted appeal as an appeal from the trial court’s order denying

Whitehead’s Motion to Vacate and Motion to Quash, we would reach the same conclusion. The

notice of appeal must be filed within 30 days after the judgment is signed. TEx. R. APP, P. 261

When a judgment creditor proceeds under the UEFJA, the filing of the foreign judgment

comprises both the plaintiff’s original petition and a final judgment. Walnut Equip. Leasing Co.

v. Wu, 920 S.W.2d 285, 286 (Tex. 1996). The judgment in this case was entered in Texas on

September 22, 2011 and the trial court’s order denying the Motion to Vacate and Motion to

Quash was signed on February 7, 2012. Whitehead filed his Notice of Restricted Appeal on April

4, 2012. We conclude Whitehead failed to timely file this notice of appeal and we dismiss this

case for lack of jurisdiction.

Conclusion

Because Whitehead participated in the proceedings below, he is not entitled to a restricted

appeal. And because the Indiana judgment filed in Texas on September 22, 2011, became a final

appealable judgment on that date, Whitehead’s notice of appeal was not timely. Accordingly, we

dismiss this appeal for want of jurisdiction.

DAVID LEWIS JUSTICE 1 20449F.P05

-3- lFiftt! Thtrtrt uf 0 !tøurt øf Aiatii ixas at iattai JUDGMENT

Vincent Whitehead, Appellant On Appeal from the 366th Judicial District Court, Collin County, Texas No, O542MO449CV V. Trial Court Cause No. 36&O4O372Ol 1. Opinion delivered by Justice Lewis. Bulldog Battery Corporation, Appellee Justices LangMiers and Myers participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is DISMISSED for want of jurisdiction. It is ORDERED that appellee Bulldog Battery Corporation recover his costs of this appeal from appellant Vincent Whitehead.

th 8 Judgment entered this day of February, 2013.

DAVID LEWIS JUSTICE