No CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS

No. 05-12-00449-CV ACCEPTED 225EFJ016899481 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 May 25 P4:20 Lisa Matz CLERK IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS VINCENT WHITEHEAD, ) Appellant ) ) v. ) ) BULLDOG BATTERY CORPORATION, ) Appellee ) On appeal from the 366th Judicial District Court for Collin County, Texas: Bulldog Battery Corporation, Plaintiff-Appellee, v. Talty Motive Power, Inc., Defendant and Vincent Whitehead, Defendant-Appellant, Cause No. 366-04037-2011. Counsel for Appellant Vincent Whitehead: Dan E. Martens, Esq. The Law Office of Dan E. Martens 17101 Preston Road, Suite 160 S Dallas, TX 75248 Counsel for Appellee Bulldog Battery Corporation: Cheryl Mann, Esq. Law Offices of Brad Jackson 3701 Turtle Creek Blvd, Suite 12G Dallas, TX 75219 Oral Argument Requested Appellant s Brief Page i

TABLE OF CONTENTS INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE... v ISSUES PRESENTED... vi STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 A. PROCEDURAL BACKGROUND... 5 B. THE JUDGMENT IS NOT PROPERLY AUTHENTICATED AND NOT ENTITLED TO FULL FAITH AND CREDIT IN TEXAS... 7 1. The Federal statute was not satisfied... 8 2. The Texas statute was not satisfied... 9 C. THE JUDGMENT DOES NOT MEET THE REQUIREMENT OF AUTHENTICATION ON EVERY PAGE, AND IS THEREFORE INVALID... 14 D. THE JUDGMENT WAS NEVER PROPERLY FILED AND IS NOT EFFECTIVE TO TRIGGER THE THIRTY (30) DAY PERIOD FOR AN APPEAL... 18 E. CONCLUSION... 20 PRAYER... 21 APPENDIX... I Appellant s Brief Page ii

Constitutional Provisions INDEX OF AUTHORITIES U.S. CONST. art. IV 1...5 Texas Supreme Court Cases Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam)...6 Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985)...6 Texas Appellate Court Cases Blankenbeker v. Texas Dep't of Pub. Safety, 990 S.W.2d 813, 817 (Tex. App. Austin 1999, pet. denied)...12 Carter v. Jimerson, 974 S.W.2d 415, 417 (Tex. App.-Dallas 1998, no pet.)...14 Dear v. Russo, 973 S.W.2d 445, 446-447 (Tex. App. Dallas 1998, pet. denied)...20 Martinez v. State, 2008 Tex. App. LEXIS 3115, 5-6 (Tex. App. El Paso Apr. 30, 2008, no pet.)...15 Moncrief v. Harvey, 805 S.W.2d 20, 23 (Tex. App. Dallas 1991, no writ)...18 Ramos v. Tex. Dep t of Pub. Safety, 2006 Tex. App. LEXIS 1583 (Tex. App. San Antonio 2006, no pet.)...16 Reese v. State, 273 S.W.3d 344, 349 (Tex. App. Texarkana 2008, no pet.)...15 Russo v. Dear, 105 S.W.3d 43, 46 (Tex. App. Dallas 2003, pet. denied)...13 See also Tex. Dep t of Pub. Safety v. Silva, 988 S.W.2d 873, 877 (Tex. App. San Antonio 1999, pet. denied)...15 See Bahr v. Kohr, 928 S.W.2d 98, 100 (Tex. App. San Antonio 1996, pet den.)...7 Texas Dep't of Pub. Safety v. Guajardo, 970 S.W.2d 602, 608 (Tex. App. Houston [14th Dist.] 1998, no pet.)...10 Appellant s Brief Page iii

Statutes 28 U.S.C. 1738 (2012)...8 Tex. Civ. Prac & Rem. Code 35.003 (Vernon 2008)...18 TEX. CIV. PRAC. & REM. CODE ANN. 35.001-008 (Vernon 2008)...8 Rules IND. R. CIV P. 55...3 TEX. R. APP. P. 30...6 TEX. R. EVID. 1005...9, 12 TEX. R. EVID. 902(1)...10 TEX. R. EVID. 902(4)...10 Appellant s Brief Page iv

STATEMENT OF THE CASE This is a suit initiated in the trial court by Appellee for domestication of an Indiana Judgment against Appellant pursuant to the Texas Domestication of Foreign Judgments Act. On September 22, 2011, Appellee filed the Final Judgment with Findings of Fact and Conclusions of Law (the Judgment ), the Affidavit of Joel K. Stein, and the Proof of Mailing of Notice in the 366 th Judicial District Court in and for Collin County. On November 23, 2012, Appellant filed his Motion to Vacate Because of Improper Filing and Motion to Quash ( Motion to Vacate ). On January 6, 2012, a hearing was held in the trial court regarding the motion to vacate the Judgment, and on February 7, 2012, the trial court issued its Order denying Defendant Vince Whitehead s Motion to Vacate Because of Improper Filing and Motion to Quash ( Order ). On April 4, 2012, Appellant filed his Notice of Restricted Appeal along with its Motion to Extend Time to file a restricted appeal, and on May 16, 2012, this Court Granted Appellant s Motion to Extend Time to File Restricted Appeal. Appellant s Brief Page v

ISSUES PRESENTED 1. Whether an Indiana judgment, which has been filed in a Texas trial court in an attempted domestication under the Uniform Enforcement of Foreign Judgments Act, has been properly domesticated when the purported authentication is merely a seal, a stamp of certification, the date, and the signature of an individual purporting to be a court clerk of the Wabash Superior Court of Wabash County, Indiana bearing no language or signatures of authentication of office or form. 2. Whether this same judgment, even if properly authenticated on the final page, is not a properly domesticated judgment because the authentication is only on the final page, and there are no identifying marks on the preceding pages to ensure the integrity of the judgment as one continuous final, valid, subsisting, and authentic judgment. 2. Whether a judgment, which has not properly been authenticated in Texas, has been effectively filed, therefore tolling the thirty-day time period for filing a motion to vacate based upon the requirements of the Full Faith and Credit Clause of the U.S. Constitution until a properly authenticated judgment is filed. Appellant s Brief Page vi

STATEMENT OF FACTS 1. On May 12, 2008, a civil complaint was filed by Bulldog Battery Corporation ( Bulldog or Appellee ) against Talty Motive Power, Inc., a Texas corporation ( Talty ), in the Wabash Superior Court, Wabash County, Indiana to collect a debt for products sold to Talty. See R. at 24. 2. On June 12, 2008, Talty appeared through its attorneys of record. Various motions were then filed by each party to the proceeding. See R. at 24. On August 20, 2009, a Motion to Withdraw Appearance of the attorneys of record for Talty was filed and on August 21, 2001, the court granted the motion to withdraw from the representation of Talty, and simultaneously set the case for trial on February 9, 2010, and issued notice of that setting to Talty. See R. at 24. 3. On September 30, 2009, Bulldog filed the Motion for Leave of Court to File a Second Amended Complaint ( 2 nd Amended Complaint ), adding Vincent Whitehead, Individually as a Defendant ( Whitehead or Appellant ), despite no previous allegations that Whitehead was liable for the actions of Talty. Bulldog based its claim against Whitehead upon the incorrect factual allegation that Whitehead was President of Talty and had used the corporation as his alter ego to commit fraud on Bulldog. See R. at 24. On the same day, the trial court entered an order granting leave to file and serve the 2 nd Appellant s Brief Page 1

Amended Complaint and add Whitehead as a Defendant. On October 6, 2009, Bulldog filed the 2 nd Amended Complaint and summons was issued. Whitehead was served with process of the 2 nd Amended Complaint in Texas. See R. at 24. 4. On or about November 23, 2009, Whitehead, without the aide of counsel, wrote a letter ( Letter ) to the Wabash Superior Court, requesting that the court dismiss the 2 nd Amended Complaint because of lack of personal jurisdiction over him, because of insufficient legal justification. See R. at p. 33. 5. Whitehead has never been a resident of Indiana, a fact about which there was never any dispute. See Id. 6. On November 23, 2009, the Wabash Superior Court filed the Letter, deeming it a general appearance without holding a hearing, and no notice was issued to Whitehead informing Whitehead of the court s decision. No hearing was scheduled or notice issued giving Whitehead an opportunity to challenge the exercise of jurisdiction over him. No separate notice of the trial setting was issued to Whitehead at that time. See R. at 25. 7. On February 9, 2010, without notice to Whitehead, the cause came on for trial in Indiana, and Bulldog filed proposed findings of fact and conclusions of law. Id. 8. On March 26, 2010, the Wabash Superior Court granted a Default Judgment against Whitehead without prior notification Appellant s Brief Page 2

to Whitehead that a default judgment would be entered against him, as required by the Ind. R. Civ P. 55. See Id. 9. On September 22, 2011, Plaintiff, Bulldog filed a nonauthenticated copy of the Final Judgment with Findings of Fact and Conclusions of Law (the Judgment ), the Affidavit of Joel K. Stein, and the Proof of Mailing of Notice in the 366 th Judicial District Court in and for Collin County, Texas seeking to domesticate the alleged Indiana judgment in Texas. The certified copy of the Judgment bears, on the twelfth and last page of the document only, the official seal of the Court, the clerk s stamp of certification, the signature and date of the clerk of the Wabash Circuit/Superior Court. See R. at 35-46; App. at IX-XX. 10. On November 23, 2011, Whitehead filed his Motion to Vacate the Judgment in the 366 th Judicial District Court in and for Collin County, Texas. See R. at 24. 11. On February 7, 2012, the 366th Judicial District Court for Collin County, Texas entered its Order denying Whitehead s Motion to Vacate the Judgment. See App. at XXI; R. at 56. Appellant s Brief Page 3

SUMMARY OF THE ARGUMENT Appellee did not meet the procedural requirements for domestication of sister state judgments in Texas, and the Judgment was not entitled to full faith and credit. Because these requirements are strictly enforced, it was error for the trial court to not vacate the Judgment. First, the Judgment was not properly authenticated in accordance with applicable federal statutes. Second, the Judgment was not properly authenticated in accordance with applicable Texas statutes and common law because the stamp and signature affixed to the final page of the Judgment, without more, do not constitute proper authentication. Third, the Judgment was not authenticated on every page, and contains no other indentifying marks that would authenticate the Judgment as one, continuous, valid, subsisting, and final judgment. As a result of the improper authentication, the thirty (30) day time period for filing an appeal or motion to vacate based upon the Full Faith and Credit Clause is tolled until a properly authenticated Judgment is filed. This Court should reverse the lower court decision and render judgment for Appellant that the Judgment did not meet the procedural requirements for domestication of sister state judgments, vacate the Judgment, and order that the 30 day time period is tolled until a properly authenticated Judgment is filed in the trial court by Appellee. Appellant s Brief Page 4

ARGUMENT 12. The Judgment is not final, valid, and subsisting in Texas because the Appellee has not met the procedural requirements for domestication of sister state judgments in Texas, and is therefore not entitled to recognition in Texas under the Full Faith and Credit Clause of the United States Constitution. U.S. CONST. art. IV 1. As a result, the Judgment was effectively not filed in the trial court, and it was error for the trial court to not vacate the Judgment. Appellant asks this Court to render judgment that the Judgment was not properly filed so as to be recognized in Texas, and that as a result the filing of the Judgment is null and void, and the Judgment should be vacated. A. PROCEDURAL BACKGROUND 13. Only upon the filing of a properly authenticated foreign judgment can the thirty (30) day time period for filing a challenge based upon the Full Faith and Credit clause begin. 14. This restricted appeal is brought because no motion to vacate was filed within thirty (30) days of the filing of the Judgment in the trial court, and the only challenge brought by Appellant is that the Judgment is defective on its face. 15. Restricted appeals are governed by Rule 30 of the Texas Rules of Appellate Procedure and by Sections 51.012 51.013 of the Texas Civil Practice and Remedies Code. See TEX. R. APP. P. Appellant s Brief Page 5

30; see also TEX. CIV. PRAC. & REM. CODE ANN. 51.013 (Vernon 2008). In order to prevail on a restricted appeal, an appellant must establish the following elements: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record. Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985); TEX. R. APP. P. 30; TEX. CIV. PRAC. & REM. CODE ANN. 51.013 (Vernon 2008). 16. In this case, the appeal was brought within six months of the date of filing of the Judgment. 1 See Notice of Restricted Appeal filed on April 4, 2012, R. at 59-60; see also Order on Appellant s Motion to Extend Time granted on May 16, 2012. Vincent Whitehead was a defendant in Indiana and Texas, and did not appear at the trial in Indiana or in Texas within 30 days of the filing of the Judgment. The error is apparent from the face of the record. All of the required elements are satisfied. 17. Because the thirty (30) day deadline had passed, Appellant did not argue that the Judgment was not entitled to Full Faith 1 Appellant did not receive notice that the trial court had rendered judgment on the Appellant s Motion to Vacate, which necessitated the filing of the Motion to Extend Time to File the Notice of Restricted Appeal, which was unopposed by Appellee and granted by this Court on May 16, 2012. Appellant s Brief Page 6

and Credit in Texas in the trial court based upon the wellestablished exceptions of fraud and lack of personal jurisdiction, despite ample evidence of such in this case. 2 See R. at 24-31. Appellant s sole argument in its Motion to Vacate was that the Judgment was not properly filed in the first place, and thus the thirty (30) day time period for filing an objection did not start to run upon the filing. See id. Appellant only sought that the Appellee re-file a properly authenticated judgment so that Appellant could properly challenge such Judgment on the basis of fraud and lack of personal jurisdiction in Indiana. See id. 18. The only consequence to Appellee is that it is actually held to the explicit requirements of the Texas statute for domestication of foreign judgments. It is a simple task that merely ensures the integrity of the Texas Court system. B. THE JUDGMENT IS NOT PROPERLY AUTHENTICATED AND NOT ENTITLED TO FULL FAITH AND CREDIT IN TEXAS. 19. The Judgment is not final, valid and subsisting because it does not meet the federal, statutory or common law 2 Such an argument would have been a waste of time for the trial court. Granting of the Motion to Vacate would have only required a new judgment to be filed as well as a new Motion to Vacate addressing fraud and lack of jurisdiction. The denial of the Motion to Vacate rendered any such argument inapposite as well, as a motion to vacate based upon these arguments cannot be considered after 30 days of the filing of a properly authenticated judgment. See Bahr v. Kohr, 928 S.W.2d 98, 100 (Tex. App. San Antonio 1996, pet den.). Appellant s Brief Page 7

requirements of Texas because it is not properly certified or authenticated. 20. The enforcement of foreign judgments is governed by the Texas version of the Uniform Enforcement of Foreign Judgments Act ( UEFJA ) codified in the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. 35.001-008 (Vernon 2008). 21. A foreign judgment "is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying a judgment as a judgment of the court in which it is filed." TEX. CIV. PRAC. & REM. CODE ANN. 35.003(c) (Vernon 2008). 22. The party seeking to enforce a foreign judgment in Texas must obtain a copy of the judgment, authenticated in accordance with an act of congress or a statute of this state. TEX. CIV. PRAC. & REM. CODE ANN. 35.003(a). 1. The Federal Statute was not satisfied. 23. The federal statute providing for authentication was not satisfied in this case. See 28 U.S.C. 1738 (2012). Section 1738 specifically addresses authentication of documents so that they may be entitled to Full Faith and Credit. 24. Under 1738, The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within Appellant s Brief Page 8

the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. All that is evident on the twelfth and last page of the Judgment is a seal of the court, a certification stamp of the clerk of the court, and a signature of the clerk along with the date of such signature. There is no authentication language, and no certificate of the judge of the court attesting that the authentication is in proper form. 25. Counsel for Appellee admitted in argument in the trial court that Appellee had not met its burden to comply with federal law and that the Judgment was not properly authenticated in this manner. 2. The Texas Statute was not satisfied. 26. The Texas rules regarding authentication of foreign judgments are not satisfied. Under Rule 1005, regarding public records, The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902... TEX. R. EVID. 1005. 27. Rule 902(4) of the Texas Rules of Evidence, addressing copies of judgments, states that a copy of an official record Appellant s Brief Page 9

is self-authenticating when it is certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority. TEX. R. EVID. 902(4). The certificate requirement under subsection (1) is satisfied when it is a document bearing a seal purporting to be that of the United States, or of any State,... or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. TEX. R. EVID. 902(1). 28. Courts that have addressed this issue under Rule 902(4) consistently require an explicit attestation and execution. In Texas Dep't of Pub. Safety v. Guajardo, 970 S.W.2d 602, 608 (Tex. App. Houston [14th Dist.] 1998, no pet.), a proper certification under 902(4) was provided by way of example: TEXAS DEPARTMENT OF PUBLIC SAFETY TRAVIS COUNTY, TEXAS This day, 04-01-96, [handwritten] I certify that the document which bears this certificate is a full, true and correct copy of the official record or report or entry currently on file with the Texas Department of Public Safety in Travis County, Texas. Virginia A Talley, Custodian of Records Appellant s Brief Page 10

Driver Improvement and Control Service Texas Department of Public Safety Attested to and executed by [signature] Carmen R. Cass, Authorized Deputy Custodian 29. There is a clear distinction under Texas law between an original judgment attested or executed under 902(1), and the additional, more onerous certification requirement for certified copies of judgments under 902(4). In Mathis v. State, 930 S.W.2d 203, 206 (Tex. App. Houston [14th Dist.] 1996, no writ), the evidence supporting the registration of the 1977 judgment is the certified copy of the judgment. The judgment bears a seal from Somerset County, New Jersey and reflects the signature of the superior court judge in his official capacity, but it is a copy. Thus, the document is not self-authenticating under Rule 902(1). 30. A seal and a signature of the judge of the court is a satisfactory self-authentication only when the judgment is an original. However, when the judgment is a certified copy, an original seal of the political subdivision, and a signature together with a certification that "I hereby certify the foregoing to be a true copy," signed by a deputy clerk, is required for the document to be properly authenticated. See Id. Appellant s Brief Page 11

31. The Judgment in this case is a certified copy that merely contains a signature and stamp of the clerk, but does not contain any statement by a judicial officer or clerk attesting to the authenticity of the document. See R. at 35-46. 32. This Court has specifically addressed and expanded upon this issue under Rule 902(4), and requires a clear statement that the copy of the judgment is a true and correct copy of the original judgment. This makes sense, considering Rule 1005 requires that the content of a document must be certified as correct. See TEX. R. EVID. 1005. In Farley v. Farley, 731 S.W.2d 733, 735 (Tex. App. Dallas 1987, no writ), the copy of the judgment stated that "this instrument is a correct copy of the original on file in this office," was attested to by the county clerk and clerk of the Superior Court of Orange County, California and carried the seal of that court. Thus, the judgment was properly authenticated under Rules 902(4) and 902(1) so as to be admissible at trial. See id. 33. In another case, [t]he copy of the printout is stamped with the DPS seal and signed with an attestation that the printout is contained in DPS files. Blankenbeker v. Texas Dep't of Pub. Safety, 990 S.W.2d 813, 817 (Tex. App. Austin 1999, pet. denied). At the very least, the certification should say that it is a true and correct copy of the judgment. Appellant s Brief Page 12

See Gutierrez v. State, 745 S.W.2d 529, 530 (Tex. App. Corpus Christi 1988, pet. ref d) (The document stated True Copy, I Certify... ). 34. Merely stamping certified copy with a signature is not enough. The Court in Gutierrez was even reluctant to say that the certification requirement was satisfied, acknowledging that it was not in model form. See Id. 35. Although there are numerous cases stating that an attestation certifying the document as correct is satisfactory, those cases do not explain what a proper certification actually entails. Because the rules of evidence and Texas case law demonstrate that a clear and precise statement of authentication is proper, this Court should rule that a precise statement that the document is a true and correct copy of the Judgment is required for proper authentication. 36. The party seeking to enforce a foreign judgment has the initial burden to present a judgment that appears on its face to be final, valid, and subsisting. Russo v. Dear, 105 S.W.3d 43, 46 (Tex. App. Dallas 2003, pet. denied). 37. This Court has addressed this issue directly in another case, ruling that the requirements of UEFJA are held to a standard of strict compliance: "[a]n essential prerequisite to application of the Uniform Act is compliance with its Appellant s Brief Page 13

provisions," and [t]he filing of a foreign judgment is effective under the Uniform Act only if the filing party follows the statutory requirements of authentication, filing, and notice. Carter v. Jimerson, 974 S.W.2d 415, 417 (Tex. App.-Dallas 1998, no pet.). 38. On the basis of the foregoing authorities, the Judgment is not entitled to Full Faith and Credit in the State of Texas and should be vacated. C. THE JUDGMENT DOES NOT MEET THE REQUIREMENT OF AUTHENTICATION ON EVERY PAGE, AND IS THEREFORE INVALID. 39. The Judgment must be authenticated on every page for it to be properly authenticated in its entirety. See Sanders v. State, 787 S.W.2d 435, 438 (Tex. App. Houston [1 st Dist.] 1990, pet. ref d). As a result, even if this Court considers the certification on the last page of the document to constitute an effective authentication, such authentication was accomplished only for the page actually stamped and was only accomplished for the last page of the Judgment. 40. Only the last page contains a seal and only the last page contains a stamp of the court clerk. See R. at 35-46; App. at XX. There are no seals, signatures, initials, page numbers, footers, headers or stamps on any of the preceding pages, thus making all subject to conjecture as to their authenticity and thus improperly authenticated. Accordingly, the eleven (11) Appellant s Brief Page 14

pages preceding the final page of the Judgment do not satisfy any requirement for proper authentication of documents, and are not properly filed under UEFJA. Without these pages, all that is certified is the last page of the Judgment, which page does not contain language that constitutes a final and subsisting judgment against Vincent Whitehead on its face. Therefore, the Judgment should be vacated. 41. In Sanders, a certification only identified (i.e. was placed upon) one page of the court s minutes. As a result, the certificate did not authenticate any other page from the court s minutes. Sanders, at 438. Other cases support this requirement. See Reese v. State, 273 S.W.3d 344, 349 (Tex. App. Texarkana 2008, no pet.) (when addressing the authentication requirement under Rule 902(1), a court allowed the admission of the document because the document contained a certification on every page of the document); See also Martinez v. State, 2008 Tex. App. LEXIS 3115, 5-6 (Tex. App. El Paso Apr. 30, 2008, no pet.) (a document was properly admitted because, upon review of the original document, it was stamped on every page); See also Tex. Dep t of Pub. Safety v. Silva, 988 S.W.2d 873, 877 (Tex. App. San Antonio 1999, pet. denied) (a document was considered authenticated when it attested, executed, and signed on every page of the exhibit). An authentication is clearly required on every page of the Appellant s Brief Page 15

Judgment in order for it to be properly filed under UEFJA, even if the content otherwise appears to be consistent. 42. The pages that are not certified do not contain any identifying header, footer, or page numbers which would show that the pages are a continuation of the Judgment or even part of the Judgment entered in Indiana. See R. at 35-46; C.f. Ramos v. Tex. Dep t of Pub. Safety, 2006 Tex. App. LEXIS 1583 (Tex. App. San Antonio 2006, no pet.) (all the pages of the document were clearly one specific form, and contained identification of the individual, independent of the content of the form, on five out of the six pages). Unlike Ramos, though, an improper authentication under UEFJA renders the filing void, rather than it merely going to the weight of the evidence. Lacking proper authentication, this court cannot rely on the content of the purported Judgment in its determination of whether the non-authenticated pages are in fact part of the Judgment. 43. The requirement of authentication on every page is particularly important in this case, because the Judgment is for a debt and punitive damages against Whitehead that contains findings to support punitive damages against an individual in a business setting where there was a corporate entity that was first sued for the debt without Vincent Whitehead as an original defendant. See R. at 35-46. The Appellant s Brief Page 16

Judgment is multiple pages long, containing findings of fact and conclusions of law on the pages that are not stamped, certified, numbered, or otherwise identified as a continuation of the Judgment. See id. 44. The Judgment only contains what purports to be the beginning pages of a judgment, and a certified final page of the Judgment. See id. The purported certification does not state the total number of pages in the Judgment. See id. Thus, the final page of the Judgment could have multiple pages preceding it, altered to contain completely different content. 45. There is no way for a Texas court to know whether the pages preceding the final page of the Judgment are the version signed by a Judge in Indiana. There is no way that a Texas court can know that each and every paragraph is the exact recitation of the original judgment. The first eleven pages of the Judgment are susceptible to forgery, augmentation or modification without the protection of a requirement of certification on each and every page. On their face, the pages preceding the final page of the Judgment are not properly authenticated and therefore not valid. See id. 46. Here, because the purported authentication of the Judgment was not properly accomplished by the certification only upon the final page, and because there is no certification or authentication on any other page of the Appellant s Brief Page 17

Judgment, the Judgment is defective on its face and should be vacated as improperly filed. This court should therefore vacate the Judgment. D. THE JUDGMENT WAS NEVER PROPERLY FILED AND IS NOT EFFECTIVE TO TRIGGER THE THIRTY (30) DAY PERIOD FOR AN APPEAL. 47. This Court has addressed the timelines for appeal when a foreign judgment has been improperly filed. See generally Jack H. Brown & Co. v. Northwest Sign Co., 665 S.W.2d 219 (Tex. App. Dallas 1984), op. on merits, 677 S.W.2d 135 (Tex. App. Dallas 1984), rev'd per curiam on other grounds, 680 S.W.2d 808 (Tex. 1984). 48. This Court has made clear that only when a foreign judgment is properly filed under the Uniform Act does the filing have the effect of initiating an enforcement proceeding. See Moncrief v. Harvey, 805 S.W.2d 20, 23 (Tex. App. Dallas 1991, no writ); See also Tex. Civ. Prac & Rem. Code 35.003 (Vernon 2008). 49. In Jack H. Brown & Co., the case concerned the statute preceding the UEFJA, but the former statute contained the same procedure and content ( A copy of any foreign judgment authenticated in accordance with an act of congress or statutes of this state may be filed in the office of the clerk of any court of competent jurisdiction of this state ). Jack H. Brown & Co. at 220. Appellant s Brief Page 18

50. In that case, the defectively authenticated judgment was filed in April of 1982, there was no answer until at least January of 1983, and it was not until March of 1983 that the judgment creditor filed an identical copy of the Idaho judgment, this time properly authenticated. Id. at 220-21. It was not until this second, proper filing that the judgment was considered filed and the timeline for appeal began to run: [a] judgment debtor cannot be expected to respond and take such measures as may be available to him to avoid enforcement of a foreign judgment unless the statutory requirements have been met. Id. at 221-22. 51. Although the statute provides that the foreign judgment has the same effect as a judgment of the court in which it is filed, it has that effect only when the judgment complies with the statutory requirements of authentication and the filing of an affidavit. Id at 221 (emphasis added). Therefore, if a filing is improperly authenticated, the trial court cannot give the original judgment the same effect as a Texas judgment, and this Court treats the second filing of the Judgment as the original filing for the purpose of the thirty (30) day period for filing a Motion to Vacate. Id. at 222. 52. Therefore, a motion to vacate based upon a filed judgment that is not final or valid does not commence the timetable for responding to such a filing. See generally Jack H. Brown & Appellant s Brief Page 19

Co., 665 S.W.2d 219; See also Dear v. Russo, 973 S.W.2d 445, 446-447 (Tex. App. Dallas 1998, pet. denied) (filing a judgment not facially final does not commence timetable). 53. This Court should therefore reverse the trial court s decision to overrule the Motion to Stay and rule that Appellee must re-file the Judgment, affording a fresh answer period from the date of re-filing a properly authenticated Judgment. E. CONCLUSION 54. The error in this case is apparent from the face of the record. The Judgment was not properly authenticated in accordance with the federal or Texas requirements under UEFJA. In addition, even if the final page of the Judgment was authenticated, the Judgment needed to be authenticated on every page to ensure the validity and authenticity of the Judgment. The requirements for domestication of judgments in Texas are subject to strict compliance. Because the requirements were not met, the trial court erred in not vacating the Judgment. Appellant s Brief Page 20

PRAYER For these reasons, Defendant asks this Court to reverse the trial court s denial of the motion to vacate, vacate the Judgment and render judgment in favor of Appellant that the Judgment did not meet the procedural requirements for domestication of a sister state judgment in Texas, and render judgment that the thirty day period for filing a motion to vacate is tolled until a judgment that is properly domesticated is filed in the trial court. Respectfully Submitted, LAW OFFICE OF DAN E. MARTENS By: /s/ Dan E. Martens Dan E. Martens State Bar No. 13050500 17101 Preston Road, Suite 160S Dallas, Texas 75248 Telephone: (972) 335-3888 Fax: (972) 335-5805 ATTORNEY FOR VINCENT WHITEHEAD Appellant s Brief Page 21

APPENDIX INDEX TAB A: U.S. CONST. ART. IV 1... II TAB B: 28 U.S.C. 1738... III TAB C: TEX. CIV. PRAC. & REM. CODE ANN. 35.001-008... IV-VI TAB D: IND. R. CIV. P. 55... VII-VIII TAB E: Judgment... IX-XX TAB F: Order Denying Appellant s Motion to Vacate... XXI Appendix to Appellant s Brief Page I

U.S. CONST. art. IV 1 Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Appendix to Appellant s Brief Page II

28 U.S.C. 1738 The Acts of legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto. The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. Appendix to Appellant s Brief Page III

TEX. CIV. PRAC. & REM. CODE ANN. 35.001 In this chapter, "foreign judgment" means a judgment, decree, or order of a court of the United States or of any other court that is entitled to full faith and credit in this state. TEX. CIV. PRAC. & REM. CODE ANN. 35.002 This chapter may be cited as the Uniform Enforcement of Foreign Judgments Act. TEX. CIV. PRAC. & REM. CODE ANN. 35.003 (a) A copy of a foreign judgment authenticated in accordance with an act of congress or a statute of this state may be filed in the office of the clerk of any court of competent jurisdiction of this state. (b) The clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed. (c) A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying a judgment as a judgment of the court in which it is filed. TEX. CIV. PRAC. & REM. CODE ANN. 35.004 (a) At the time a foreign judgment is filed, the judgment creditor or the judgment creditor's attorney shall file with the clerk of the court an affidavit showing the name and last known post office address of the judgment debtor and the judgment Appendix to Appellant s Brief Page IV

creditor. (b) The judgment creditor or the judgment creditor's attorney shall: (1) promptly mail notice of the filing of the foreign judgment to the judgment debtor at the address provided for the judgment debtor under Subsection (a); and (2) file proof of mailing of the notice with the clerk of the court. (c) The notice must include the name and post office address of the judgment creditor and if the judgment creditor has an attorney in this state, the attorney's name and address. (d) On receipt of proof of mailing under Subsection (b), the clerk of the court shall note the mailing in the docket. TEX. CIV. PRAC. & REM. CODE ANN. 35.005 Repealed by Acts 2011, 82nd Leg., ch. 65 (S.B. 428), 2, effective May 17, 2011. TEX. CIV. PRAC. & REM. CODE ANN. 35.006 (a) If the judgment debtor shows the court that an appeal from the foreign judgment is pending or will be taken, that the time for taking an appeal has not expired, or that a stay of execution has been granted, has been requested, or will be requested, and proves that the judgment debtor has furnished or will furnish the security for the satisfaction of the judgment required by the state in which it was rendered, the court shall Appendix to Appellant s Brief Page V

stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated. (b) If the judgment debtor shows the court a ground on which enforcement of a judgment of the court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period and require the same security for suspending enforcement of the judgment that is required in this state in accordance with Section 52.006. TEX. CIV. PRAC. & REM. CODE ANN. 35.007 (a) A person filing a foreign judgment shall pay to the clerk of the court the amount as otherwise provided by law for filing suit in the courts of this state. (b) Filing fees are due and payable at the time of filing. (c) Fees for other enforcement proceedings are as provided by law for judgments of the courts of this state. TEX. CIV. PRAC. & REM. CODE ANN. 35.008 A judgment creditor retains the right to bring an action to enforce a judgment instead of proceeding under this chapter. Appendix to Appellant s Brief Page VI

Ind. R. Civ. P. 55 (A) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise comply with these rules and that fact is made to appear by affidavit or otherwise, the party may be defaulted by the court. (B) Default judgment. In all cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a person (1) known to be an infant or incompetent unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein; or (2) entitled to the protections against default judgments provided by the Service Members Civil Relief Act, as amended (the Act ), 50 U.S.C. appx. 521, unless the requirements of the Act have been complied with. See Id. Small Claims Rule 10(B)(3). If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by a representative, his representative) shall be served with written notice of the application for judgment at least three [3] days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of Appendix to Appellant s Brief Page VII

any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required. (C) Setting aside default. A judgment by default which has been entered may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B). (D) Plaintiff, counterclaimants, cross-claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(C). (E) Judgment against governmental organizations. A judgment by default may be entered against a governmental organization. ***** Appendix to Appellant s Brief Page VIII

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document has been sent via fax to the following on May 25, 2012. Cheryl L. Mann Law Offices of Brad Jackson 3701 Turtle Creek Blvd, Suite 12G Dallas, TX 75219 Phone: (214) 526-7800 Fax: (214) 526-1955 Counsel for Appellee Via Regular Mail and Certified Mail Talty Motive Power, Inc. 11874 South Profit Row Forney, Texas 75216 /s/ Dan E. Martens Dan E. Martens Appellant s Brief Page I