Glеnn Alexander CLAMON, Appellant v. Jeffrey DELONG and Dennis Holmes Appellees
NO. 02-14-00410-CV
Court of Appeals of Texas, Fort Worth.
DELIVERED: October 8, 2015
477 S.W.3d 823
contrary judgment of the court of appeals should be reversed, and the cause should be remanded to the trial cоurt for further proceedings consistent with this opinion. Because the Court instead affirms the judgment of the court of appeals, I respectfully dissent.
Glenn Alexander CLAMON, Appellant v. Jeffrey DELONG and Dennis Hоlmes Appellees
NO. 02-14-00410-CV
Court of Appeals of Texas, Fort Worth.
DELIVERED: October 8, 2015
477 S.W.3d 823
Mark Blenden, The Blenden Roth Law Firm, Bedford, TX, for State.
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
OPINION
SUE WALKER, JUSTICE
I. INTRODUCTION
Appellees Jeffrey DeLong and Dennis Holmes sought enforcement in Texas of a California default judgment they had obtained against Appellant Glenn Alexander
II. BACKGROUND
Appellees Jeffrey DeLong and Dennis Holmes sued Clamon in California state court alleging certain statutory violations arising from Clamon‘s role in the sale of tax-resolution services to them. DeLong and Holmes obtained a $98,408.77 default judgment against Clamon. DeLong and Holmes then sought enforcement of the California judgment in Texas by filing with the Tarrant County Clerk a copy оf the judgment and an affidavit with proof of mailing to Clamon. See
Clamon did not file a motion for new trial or other postjudgment motion attacking the California judgment during the Texas court‘s plenary pоwer. Instead, he filed this restricted appeal. After filing his notice of appeal, Clamon filed a formal bill of exception with the trial court. See
III. STANDARD OF REVIEW FOR RESTRICTED APPEALS
To prevail in a restricted appeal, an appellant must establish that (1) he filed notice of the restricted appeal within six months after the judgment was signed, (2) he was a party to the underlying lawsuit, (3) he did not participate in the hearing that rеsulted 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). Hеre, the first three requirements of a restricted appeal are not in dispute. We thus turn to the issue of whether error is apparent on the face of the record.
The face of the record in a restricted appeal consists of the papers on file with the trial court when judgment was rendered. Midstate Envtl. Servs., LP v. Peterson, 435 S.W.3d 287, 289 (Tex.App.—Waco 2014, no pet.); Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex.App.—Fort Worth 2003, no pet.). Thus, for purposes of a restricted appeal, we may not cоnsider evidence unless it was before the trial court when it rendered judgment. Gen. Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 944 (Tex.1991); Campsey, 111 S.W.3d at 771. If extrinsic evidence is necessary to challenge a judgment, the appropriate remedy is to file a motion fоr new trial or a bill of review proceeding in the trial court. Gen. Elec. Co., 811 S.W.2d at 944.
IV. APPLICABLE LAW
A. Concerning Enforcement of Foreign Judgments
Under the
When a judgment creditor proceeds under the UEFJA, the filing of the foreign judgment comprises both the plaintiffs’ original petition and the final judgment. Walnut Equip. Leasing Co. v. Wu, 920 S.W.2d 285, 286 (Tex.1996). Accordingly, the filing initiates the enforcement proceeding and instantly creates a Texas judgment that is enforceable. Id.
B. Concerning Formal Bills of Exception
A formal bill of exception exists when a trial court refuses to admit evidence and the complaining рarty then provides the excluded evidence for appellate review. Sparks v. Booth, 232 S.W.3d 853, 870 (Tex.App.—Dallas 2007, no pet.). The purpose behind a bill of exception is to put excluded evidence in the record so that the аppellate court can determine if the trial court erred in excluding it or erred in ruling in some way materially related to the evidence. Gray v. Gray, 971 S.W.2d 212, 218 (Tex.App.—Beaumont 1998, no pet.).
A formal bill of exception must be presented tо the trial court for approval and signature.
V. APPLICATION OF THE LAW TO THE FACTS
In his first issue, Clamon asserts that the trial court erred by refusing to sign his formal bill of exception whereby he sought to include the pleadings from the California case in the record. The triаl court‘s order refusing Clamon‘s formal bill of exception specifically stated that Clamon‘s bill of exception was erroneous because it stated that “during the course of trial, the follоwing matters were excluded.” The order stated that “[i]n fact there was no trial of the cause” because “[t]his is a domestication of a foreign judgment, commenced by [Appellees] by filing the Cаlifornia judgment on June 13, 2014. On that date, the filing of the California judgment created a Texas judgment.” The trial court found that Clamon did not offer evidence, that no evidence had been excluded, and that Clamon‘s formal bill of exception did not comply with
In his second and third issues, Clamon complains that the California court lacked personal jurisdiction over him and that he was not served in accordance with California law. In support of these two issues, Clamon points to documеnts he attached to his formal bill of exception. While these grounds may constitute a valid basis for attacking a foreign judgment enforced under the UEFJA, Clamon mounted no such attack in the trial court. Cf. XTRA Lease, 2014 WL 6997326, at *1-3 (holding trial court did not abuse its discretion by vacating domesticated judgment on defendant‘s motion); Ward, 418 S.W.3d at 825 (holding trial court did not abuse its discretion by denying defendant‘s motion to vacate domesticated judgment); Moncrief, 805 S.W.2d at 22. Because Clamon filed no postjudgment document or motion in the trial court attacking the validity or the enforceability of the domesticated judgment, the trial court never ruled on the validity оr enforceability of the domesticated judgment nor substantively considered the documents attached to his bill of exception. Consequently, the documents attached to Clamon‘s bill of exception are not included in our restricted-appeal review of the face of the record. See Midstate, 435 S.W.3d at 289 (the face of the record consists of papers on file with the trial court when it rendered judg-ment); Campsey, 111 S.W.3d at 771; Stankiewicz v. Oca, 991 S.W.2d 308, 311 (Tex.App.—Fort Worth 1999, no pet.) (for purposes of restricted appeals, the reviewing court is limited to reviewing the record as it existed in the trial court at the time the judgment was entered). Here, nо error is apparent on the face of the record as it existed when the California judgment was enforced under the UEFJA and became a final judgment. We overrule Clamon‘s second and third issues.
VI. CONCLUSION
Having overruled Clamon‘s three issues, we affirm the trial court‘s judgment.