Wells, Steven v. Glen Dale Motor Co. and Tomsic Motor Co.

DISMISS; and Opinion Filed May 2, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01276-CV
STEVEN WELLS, Appellant
V.
GLEN DALE MOTOR CO. AND TOMSIC MOTOR CO., Appellees
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 12-03265
MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Fillmore
Opinion by Justice O'Neill
By letter dated March 29, 2013, the Court questioned its jurisdiction over this appeal.
Specifically, it appears the notice of appeal was untimely. We instructed appellant to file a
jurisdictional brief, within ten days of the date of the letter, with an opportunity for appellee to
respond. As of today’s date, appellant has not filed a jurisdictional brief.
Appellant is appealing a foreign judgment. The filing of a foreign judgment is in the
nature of both a plaintiff’s original petition and a final judgment. See Moncrief v. Harvey, 805
S.W.2d 20, 22 (Tex. App.—Dallas 1991, no writ). The appellate timetable starts running on the
date the foreign judgment is filed. See id. at 24. In the absence of a timely filed post-judgment
motion extending the timetable, the notice of appeal is due thirty days after the foreign judgment
is filed. See TEX. R. APP. P. 26.1. Without a timely filed notice of appeal, this Court lacks
jurisdiction. See TEX. R. APP. P. 25.1(b).
Appellees filed the foreign judgment in the trial court on March 22, 2012. Appellant
filed a motion to vacate the judgment on June 13, 2012. In that motion, appellant cited to Rule
of Civil Procedure 306a and asserted that he did not receive notice of the judgment until May 24,
2012. See TEX. R. CIV. P. 306a. Attached to appellant’s motion was his affidavit attesting to the
factual allegations. On July 20, 2012, the trial court denied the motion to vacate. In its order, the
trial court did not make the required finding of the date when appellant or his counsel first
received notice or acquired actual knowledge that the foreign judgment was filed. See TEX. R.
APP. P. 4.2(c). Thus, on the record before this Court, the notice of appeal was due on April 21,
2012, thirty days after the foreign judgment was filed. See TEX. R. APP. P. 26.1. Appellant filed
his notice of appeal on August 15, 2012. Because the notice of appeal was untimely, we dismiss
the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
121276F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEVEN WELLS, Appellant On Appeal from the 134th Judicial District
Court, Dallas County, Texas
No. 05-12-01276-CV V. Trial Court Cause No. 12-03265.
Opinion delivered by Justice O'Neill.
GLEN DALE MOTOR CO. AND TOMSIC Justices Francis and Fillmore, participating.
MOTOR CO., Appellees
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellees, GLEN DALE MOTOR CO. and TOMSIC MOTOR
CO., recover their costs of this appeal from appellant, STEVEN WELLS.
Judgment entered this 2nd day of May, 2013.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
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