Thursday, November 29, 2007

Appellate Practice 101: No Judgment - No Appeal to Challenge the Judgment

No football without football - no domestication of foreign judgment without foreign judgment. It should not take an appellate court to state the obvious. Justice Frost goes to the trouble of writing opinion and also uses occasion to reiterate that extraneous materials not appearing in the record may not be attached to appellate briefs.

Resource Health Services, Inc. v. Acucare Health Strategies, Inc, No. 14-06-00849-CV (Tex. App.- Houston [14th Dist.] Nov. 29, 2007)(Opinion by Justice Frost)(restricted appeal from domestication of foreign judgment, jurisdictional dismissal)(Before Justices Anderson, Fowler and Frost)
Appeal from 269th District Court of Harris County
Trial court judge: Hon. John Thomas Wooldridge


In this restricted appeal, a judgment debtor attempts to appeal the trial court's judgment in a proceeding under the Uniform Enforcement of Foreign Judgments Act. Because there is no judgment in the trial court from which appeal may be taken, this court lacks appellate jurisdiction. Accordingly, we dismiss this appeal.

Appellee Acucare Health Strategies, Inc. ("Acucare") obtained a judgment against appellant Resource Health Services, Inc. ("Resource") in a Virginia district court. Acucare then filed an affidavit in the trial court below seeking to enforce the Virginia judgment in Texas under the Uniform Enforcement of Foreign Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. '35.001, et seq. (Vernon 1997). If a judgment creditor follows all the procedures of the Uniform Act, the foreign judgment becomes a Texas judgment in the court in which it is filed. See Tex. Civ. Prac. & Rem. Code Ann. '35.003; Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 483 (Tex. App.- Houston [14th Dist.] 2004, pet. denied) (stating that, if a judgment creditor follows the procedures of the Uniform Act for filing a foreign judgment, "[t]he judgment [becomes] enforceable as a Texas judgment on the date it was filed").

Under the Uniform Act, the judgment creditor must file an authenticated copy of the foreign judgment as well as an affidavit. See Tex. Civ. Prac. & Rem. Code Ann. '' 35.003, 35.004. The appellate record shows that Acucare filed an affidavit but that it did not file any judgment in the trial court. Although the affidavit states that the Virginia judgment is attached, there is no judgment attached to the affidavit in our record, and the district clerk has confirmed that there is no judgment in the trial court's file. Although the affidavit purports to describe the judgment, the affidavit is not a judgment, and this court cannot treat the affidavit as if it were a judgment. See Hamilton v. Empire Gas & Fuel Co., 110 S.W.2d 561, 566 (Tex. 1937) (holding that judgments must be in the trial court's record to be effective and that affidavits cannot be accepted as a substitute for a such a judgment).

Furthermore, Acucare has not satisfied the Uniform Act's requirement that an authenticated copy of the judgment be filed. Therefore, there is no Texas judgment under the Uniform Act. See Tex. Civ. Prac. & Rem. Code Ann. '35.003; Mindis Metals, Inc., 132 S.W.3d at 483.

Because there is no judgment in the trial court from which Resource can appeal, this court must dismiss for lack of appellate jurisdiction.[1] See Ulmer v. Ulmer, 130 S.W.3d 294, 296 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (en banc) (stating that courts of appeals have appellate jurisdiction only over final judgments and those interlocutory orders and judgments that the legislature has expressly made appealable by statute); Chandler v. Reder, 635 S.W.2d 895, 897 (Tex. App. - Amarillo 1982, no writ) (holding that appeal must be dismissed because the trial court did not render a judgment sufficient to support an appeal).

In its opening brief, Resource did not note that Acucare failed to file the Virginia judgment in the trial court; however, Resource did raise this issue in its reply brief. Acucare has filed a motion to strike this reply brief on the ground that it raises entirely new issues as to which error was not assigned in the opening brief.

Because Acucare's failure to file a judgment in the trial court below deprives this court of appellate jurisdiction, Resource may raise this argument at any time during this appeal, including in its reply brief. See Tullos v. Eaton Corp., 695 S.W.2d 568, 568-69 (Tex. 1985) (stating that lack of appellate jurisdiction is fundamental and can be raised at any time during the appeal). Accordingly, we deny Acucare's motion to strike. In addition, finding that it lacks merit, we deny Acucare's motion for appellate sanctions under Texas Rule of Appellate Procedure 45.

This case is dismissed for lack of appellate jurisdiction.

/s/ Kem Thompson Frost


Dismissed and Memorandum Opinion filed November 29, 2007.
Panel consists of Justices Anderson, Fowler, and Frost.

[1] Both Resource and Acucare have attached to their appellate briefs documents that are not contained in our appellate record. With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record. See Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210-11 (Tex. App.- Houston [14th Dist.] 2005, no pet.). Therefore, we cannot consider these documents. See id.

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