Glenn Alexander Clamon v. Jeffrey Delong and Dennis Holmes ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00410-CV
GLENN ALEXANDER CLAMON APPELLANT
V.
JEFFREY DELONG AND DENNIS APPELLEES
HOLMES
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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 2014-003040-3
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OPINION
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I. INTRODUCTION
Appellees Jeffrey DeLong and Dennis Holmes sought enforcement in
Texas of a California default judgment they had obtained against Appellant Glenn
Alexander Clamon. See Tex. Civ. Prac. & Rem. Code Ann. §§ 35.001–.008
(West 2015) (Uniform Enforcement of Foreign Judgments Act (UEFJA)). Clamon
subsequently filed this restricted appeal from the ensuing judgment raising three
issues. See Tex. R. App. P. 30. We will affirm.
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 of the judgment and an affidavit with proof of mailing to Clamon.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 35.003–.004.
Clamon did not file a motion for new trial or other postjudgment motion
attacking the California judgment during the Texas court’s plenary power.
Instead, he filed this restricted appeal. After filing his notice of appeal, Clamon
filed a formal bill of exception with the trial court. See Tex. R. App. P. 33.2. In
his bill of exception, Clamon argued that pleadings from the California court had
been excluded from the record by the Texas trial court and should be included.
The trial court signed an order refusing Clamon’s bill of exception, noting that this
case involved only the enforcement of a foreign judgment and that no evidence
had been offered by Clamon or refused by the trial court.
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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 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). Here, 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 consider 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 for new trial or a bill of review proceeding in the trial court.
Gen. Elec. Co., 811 S.W.2d at 944.
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IV. APPLICABLE LAW
A. Concerning Enforcement of Foreign Judgments
Under the United States Constitution, a state must give the final judgment
of a sister state the same force and effect that it would give to its own judgments.
See U.S. Const. art. IV, § 1. In Texas, this principle is embodied in the UEFJA.
When a judgment creditor files an authenticated copy of a foreign judgment, he
satisfies his burden of presenting a prima facie case for enforcement under the
UEFJA, and the burden of establishing why the judgment should not be given full
faith and credit shifts to the judgment debtor. Jonsson v. Rand Racing, L.L.C.,
270 S.W.3d 320, 323–24 (Tex. App.—Dallas 2008, no pet.); Minuteman Press
Int’l, Inc. v. Sparks, 782 S.W.2d 339, 340–41 (Tex. App.—Fort Worth 1989, no
writ). The fact that a foreign judgment was taken by default does not defeat this
presumption of validity. Markham v. Diversified Land & Expl. Co., 973 S.W.2d
437, 439 (Tex. App.—Austin 1998, pet. denied); Minuteman, 782 S.W.2d at 342.
When a judgment creditor proceeds under the UEFJA, the filing of the
foreign judgment comprises both the plaintiff’s 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 party then provides the excluded evidence for
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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 appellate 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 to the trial court for approval
and signature. Tex. R. App. P. 33.2(c)(1). While no form or words are required
for making a bill of exception, “the objection to the court’s ruling or action, and the
ruling complained of, must be stated with sufficient specificity to make the trial
court aware of the complaint.” Tex. R. App. P. 33.2(a). If the parties agree to the
contents of the bill, the trial court must sign the bill and file it with the trial court
clerk. Tex. R. App. P. 33.2(c)(2). If the parties do not agree to the contents, the
trial court must (1) find the bill is correct, sign it, and file it with the trial court clerk;
(2) suggest corrections to the complaining party, and if the complaining party
agrees to the corrections, sign and file the bill with the trial court clerk; or (3)
return the bill to the complaining party with the trial court’s written refusal on it if
the complaining party will not agree to the corrections. Id.
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 trial court’s order refusing Clamon’s formal
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bill of exception specifically stated that Clamon’s bill of exception was erroneous
because it stated that “during the course of trial, the following 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 California 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 rule 33.2(a) because it
did not object to any ruling of the trial court concerning the domesticated
judgment. See Tex. R. App. P. 33.2.
Here, the trial court properly refused to sign Clamon’s formal bill of
exception. When Appellees filed the California judgment pursuant to the
UEFJA, that filing comprised both their original petition and the trial court’s final
judgment. Walnut Equip., 920 S.W.2d at 286; Whitehead v. Bulldog Battery
Corp., 400 S.W.3d 115, 117 (Tex. App.––Dallas 2013, pet. denied). Once filed in
Texas, the California judgment against Clamon was subject to the same rules
and procedures as any Texas judgment. Tex. Civ. Prac. & Rem. Code Ann. §
35.003(c). But Clamon did not avail himself of Texas rules and procedures to
challenge the domesticated judgment; he did not file any type of postjudgment
motion attacking the validity or enforceability of the domesticated judgment. Cf.
Ward v. Hawkins, 418 S.W.3d 815, 825 (Tex. App.––Dallas 2013, no pet.)
(judgment debtor timely filed motion to stay enforcement of domesticated
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judgment); Moncrief v. Harvey, 805 S.W.2d 20, 22 (Tex. App.––Dallas 1991, no
writ) (judgment debtor filed motion to stay enforcement of domesticated judgment
and appellate court noted that “any motion to contest the recognition of a foreign
judgment, filed within thirty days after the filing of the foreign judgment, operates
as a motion for new trial in the context of a section 35.003 proceeding”); see also
XTRA Lease LLC v. Genesis Truckyard, LLC, No. 02-13-00404-CV, 2014 WL
6997326, at *1–3 (Tex. App.––Fort Worth Dec. 11, 2014, no pet.) (mem. op.)
(judgment debtor timely filed motion to vacate domesticated Missouri judgment
based on Missouri’s alleged lack of personal jurisdiction and trial court granted
the motion after an evidentiary hearing). In the absence of a trial, or an
evidentiary hearing, an evidentiary ruling by the trial court and an objection by
Clamon to the trial court’s ruling, the trial court did not err by denying Clamon’s
post-notice-of-appeal formal bill of exception. Accord Tex. R. App. P. 33.2
(recognizing formal bill of exception must include “objection to the court’s ruling”);
Sparks, 232 S.W.3d at 870. We overrule Clamon’s first issue.1
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 documents
he attached to his formal bill of exception. While these grounds may constitute a
1
To the extent Clamon argues that the trial court erred by not offering
suggestions as to how he could make a correct bill, we likewise overrule this
contention; no suggestions exist that could make a bill of exception proper when
neither a trial nor an evidentiary hearing were conducted.
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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 (same). 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 or 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 judgment); Campsey, 111 S.W.3d at 771 (same); 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, no 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.
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VI. CONCLUSION
Having overruled Clamon’s three issues, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: October 8, 2015
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